United States v. Kelvin Otunyo

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2023 Decided March 31, 2023

No. 21-3053

UNITED STATES OF AMERICA,

APPELLEE

v.

KELVIN OTUNYO,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cr-00251-1)

Jerome A. Madden, appointed by the court, argued the

cause and filed the briefs for appellant.

Kevin Birney, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Chrisellen R. Kolb,

Elizabeth H. Danello, and Christopher B. Brown, Assistant

U.S. Attorneys.

Before: RAO and WALKER, Circuit Judges, and GINSBURG,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

2

GINSBURG, Senior Circuit Judge: Kelvin Otunyo and his

collaborators opened bank accounts for fictitious companies,

deposited stolen checks into those accounts, and then cashed

out. Otunyo got caught and pleaded guilty to two counts of

bank fraud, one count of aggravated identity theft, and two

counts of conspiracy to launder money. The district court,

Howell, C.J., sentenced Otunyo to 90 months in prison. On

appeal, Otunyo raises numerous legal arguments, but they all

lack merit. We therefore affirm the judgment of the district

court.

I. Background

We begin by recounting the events leading up to and

including Otunyo’s sentencing.

A. Otunyo’s First Indictment

A grand jury initially returned an indictment against

Otunyo for two counts of bank fraud and one count of

aggravated identity theft. 18 U.S.C. §§ 1344(2), 1028A(a)(1).

In the schemes alleged in the first indictment, Otunyo and his

then-girlfriend defrauded two banks using the same means.

Otunyo first gave his girlfriend a stolen personal identification

card and a stolen social security number. He then told his

girlfriend to use the stolen identity to set up corporations for

fictitious companies, and to set up bank accounts for those

companies. In the final step, Otunyo gave his girlfriend two

stolen checks worth collectively more than $50,000. He told

her to deposit the checks in the fraudulent accounts so they

could get the funds.

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B. Otunyo’s Debriefing Agreement

After an extended back and forth with his attorney and the

Government, Otunyo met with the Government for an

interview, hoping to obtain a favorable plea bargain. In a

written agreement, the Government promised that “except as

provided in paragraphs two and three below, no statements

made by or other information provided by [Otunyo] during the

voluntary debriefing(s) will be used directly against [Otunyo]

in any criminal proceeding.” Paragraph two of the agreement,

however, said that “the Government may make derivative use

of and may pursue any investigative leads, in this or any other

investigation, suggested by any statements made by, or other

information provided by” Otunyo. Paragraph two further

warned Otunyo that “any statements made during this

debriefing are voluntarily made [by him], rather than

compelled,” and would, therefore, not be considered a form of

“compelled” self-incrimination. For that reason, the agreement

also warned that Otunyo’s statements would not enjoy the

protections outlined by the Supreme Court in Kastigar v.

United States, 406 U.S. 441, 461–62 (1972) (noting that a

criminal defendant “need only show that he testified under a

grant of immunity in order to shift to the government the heavy

burden of proving that all of the evidence it proposes to use was

derived from legitimate independent sources”).

Otunyo and his attorney signed the agreement. On the

signature page, Otunyo acknowledged he had “read every

word” of the agreement, that his attorney had “fully explained”

its terms, and that he did “understand and agree to the contents

of this letter.” Otunyo’s attorney also acknowledged that he had

“read each page of this debriefing agreement, reviewed it in its

entirety with [Otunyo], and discussed fully with [Otunyo] each

of the provisions of the agreement.”

4

During the ensuing interview, Otunyo gave the

Government the password to his cellphone.

C. Otunyo’s Superseding Indictment

The Government found a trove of incriminating messages

on Otunyo’s cellphone. A grand jury later returned a

superseding indictment against Otunyo based upon this and

other new evidence. The superseding indictment included the

three original counts, plus two new counts for conspiracy to

launder money in violation of 18 U.S.C. § 1956(h).

The two new counts for conspiracy to launder money

involved three new schemes of bank fraud. The schemes of

bank fraud followed a similar playbook. Otunyo and his

collaborators set up fictitious companies, opened bank

accounts for those companies under false pretenses, and

deposited stolen checks to get the funds. Unlike the schemes

alleged in the first two counts, however, the fraud schemes

involved at least eight participants and more money, and the

money obtained was laundered by Otunyo and his conspirators

through shell companies, bank transfers, checks, and debit

withdrawals. All told, these bank fraud and laundering schemes

involved the theft of more than $303,000.

D. Otunyo’s Request for a Hearing Under Kastigar

Otunyo claims the Government used his disclosure of the

password to unlock his cellphone and find the incriminating

messages that led to the superseding indictment, worsening his

legal predicament.1

1

The district court credited the Government’s evidence that the FBI

cracked the password before the meeting. We do not rely upon this

evidence.

5

Through a new court-appointed attorney, Otunyo

requested an evidentiary hearing under Kastigar and the

dismissal of the superseding indictment as a violation of his

privilege against self-incrimination protected by the Fifth

Amendment to the Constitution of the United States. Otunyo

alleged he did not know the Government could make derivative

use of his words, including using his revealed password to

unlock his cell phone. Otunyo alleged he had instead

understood he would have complete or “transactional”

immunity for anything he said during the interview.

After hearing testimony from several witnesses, including

Otunyo and his former attorney, the district court denied

Otunyo’s motion. The court found Otunyo’s “bald assertions”

incredible. As the court explained, Otunyo’s former attorney

had testified that he discussed the agreement several times with

Otunyo before the meeting, and that he had specifically

explained the limited scope of the immunity afforded by the

agreement. The testimony also showed the Government had

explained the entire agreement during the meeting before

Otunyo signed it. The Government had explained the scope of

the promised immunity to Otunyo with a vivid example: If,

during the meeting, Otunyo confessed he had killed someone

and buried the body in his backyard, then the Government

would not be able to use Otunyo’s confession directly against

him in a criminal proceeding. On the other hand, the

Government would be able to search Otunyo’s backyard for

evidence of a dead body and a shovel with his fingerprints. It

could then use the dead body and shovel as evidence against

him in a criminal proceeding. Otunyo said he remembered a

story about a dead body and a shovel. Otunyo’s attorney

corroborated the story.

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Based upon this record evidence, and considering

Otunyo’s education and sophistication, the district court found

that Otunyo’s assertion was “belied by the hearing record.”

E. Otunyo’s Plea of Guilty and Sentencing

Otunyo eventually pleaded guilty to all five counts of the

superseding indictment, without a plea agreement.

The district court later held a lengthy sentencing hearing.

When calculating the recommended sentencing range under the

Guidelines, the district court began by grouping the counts of

bank fraud and the counts of money laundering. Specifically,

the court grouped the counts of bank fraud and the counts of

money laundering into two separate subgroups under

§ 3D1.2(d) of the Guidelines, and then grouped all counts

together into a single group under “3D1.2(c) as involving

substantially the same harm.”2 Because the district court

grouped the four counts under § 3D1.2(c), it had to determine

Otunyo’s offense level based upon the “most serious” subgroup

included in the group—i.e., the conduct involved in the counts

of money laundering. U.S.S.G. § 3D1.3(a).

As required by § 3D1.3(a), the district court applied the

specific offense guideline for the counts of money laundering.

2

In response to questions raised by this court at oral argument, the

Government stated the counts should not have been grouped under

paragraph (c). Oral Argument at 17:12–20:21. We have no occasion

to decide this forfeited issue. The Government made no objection to

the grouping decision when asked by the district court, never cross-

appealed, and never raised the error in its brief. The error, if anything,

would redound to the benefit of Otunyo, as it excludes offense

conduct for the counts of bank fraud, U.S.S.G. § 3D1.3(a), so he

suffers no prejudice. We therefore assume, without deciding, that the

court properly grouped the counts under paragraph (c).

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See id. § 2S1.1. In order to establish the base offense level for

money laundering, however, the court first had to apply the

guideline for “the underlying offense from which the laundered

funds were derived.” Id. § 2S1.1(a)(1). Money laundering

always involves an underlying predicate crime, and this cross-

reference recognizes that the underlying criminal conduct

remains blameworthy even when it is not charged. The

laundered funds in this case were derived from bank fraud, so

the district court applied the guideline for bank fraud. Id.

§ 2B1.1.

After applying the guideline for bank fraud and

determining the base offense level for money laundering, the

district court applied two enhancements, adjusted the offense

level upward based upon Otunyo’s aggravating role as a

supervisor and downward based upon his acceptance of

responsibility, and ultimately calculated a recommended range

of 70 to 87 months incarceration for Otunyo’s criminal history

category of II, as detailed in this table:

Guideline Type Offense

2S1.1 Level

2B1.1(a)(1) Base offense level for bank 7

fraud

2B1.1(b)(1)(G) More than $250k fraud +12

enhancement

2B1.1(b)(10)(c) Sophisticated fraud +2

2S1.1(a)(1) Base offense level for 21

laundering

2S1.1(b)(2)(B) 18 U.S.C § 1956 +2

conviction (conspiracy to

launder money)

2S1.1(b)(3) Sophisticated laundering +2

3B1.1(b) Manager/Supervisor +3

adjustment

8

3E1.1(a) Acceptance adjustment -2

Total 26

(Range) (70-87

months)

Having determined the recommended sentencing range under

the Guidelines, the district court sentenced Otunyo. The court

chose as a starting point the middle of the range, 78 months. It

then granted Otunyo two downward departures: a six-month

downward departure to account for Otunyo’s mandatory post-

incarceration deportation from the United States as a criminal

alien, see United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.

1994), and another six-month downward departure to account

for conditions of confinement during the Covid-19 pandemic.

The district court also considered—and rejected—Otunyo’s

request for a variance to address an alleged “unwarranted

sentencing disparity,” referring to the sentence given to another

defendant. The district court ultimately sentenced Otunyo to 66

months in prison for his bank fraud and money laundering

offenses, which was below the range recommended in the

Guidelines. After adding the mandatory consecutive two-year

sentence for his aggravated identity theft, the district court

sentenced Otunyo to 90 months in prison.

II. Analysis

Otunyo raises many arguments on appeal. We have

considered them all, and we reject them all, but we address only

those that warrant treatment in a published opinion.

A. Otunyo Voluntarily Disclosed His Cellphone Password

Under Kastigar v. United States, a witness compelled to

testify in exchange for immunity who is later indicted may

“shift to the government the heavy burden of proving that all

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of the evidence it proposes to use was derived from legitimate

independent sources.” 406 U.S. at 461–62. The Government

will attempt to meet that burden in a so-called “Kastigar

hearing.”

Kastigar does not help Otunyo “for the simple reason that

the government did not compel him to provide any

incriminating information; he did so voluntarily pursuant to the

debriefing agreement.” In re Sealed Case, 686 F.3d 799, 801

(2012). “The debriefing agreement alone determines the scope

of [Otunyo’s] immunity, and its terms are clear.” Id. at 802

(citation omitted). Otunyo’s agreement allowed the

Government to use his voluntary disclosure of his cellphone

password to find evidence against him. “Therefore, the

government did not need an independent source for the

information it used to draft charges against [Otunyo], and the

district court did not err when it failed to convene a hearing on

the matter.” Id.

Otunyo argues his disclosure was compelled because he

misunderstood the promised immunity. He asserts he had

“knowingly” to agree to the terms of the proffer letter in order

voluntarily to forego the privilege. He appears to assume the

standard governing the waiver of the privilege in a suspect’s

unwarned custodial interrogation or a defendant’s plea of guilty

applies here. See, respectively, Miranda v. Arizona, 384 U.S.

436, 444 (1966); Brady v. United States, 397 U.S. 742, 748

(1970). Like Otunyo, the district court assumed this standard

governed.

We are not so sure. As a general rule, “it is settled that

forfeiture of the privilege against self-incrimination need not

be knowing.” Salinas v. Texas, 570 U.S. 178, 190 (2013)

(plurality opinion). “Almost without exception, the

requirement of a knowing and intelligent waiver has been

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applied only to those rights which the Constitution guarantees

to a criminal defendant in order to preserve a fair trial.”

Schneckloth v. Bustamonte, 412 U.S. 218, 237 (1973). One

exception to this rule, recognized in Miranda, applies to a

criminal suspect’s “unwarned custodial interrogation,” and is

justified by the “uniquely coercive nature” of this kind of

setting. Salinas, 570 U.S. at 184. A voluntary interview coming

after an arraignment informing a defendant of his right to

remain silent, see Fed. R. Crim. P. 5(d)(1)(E), negotiated by

counsel, and preceded by a written warning that statements

would be voluntary and therefore not subject to the protections

of the privilege against self-incrimination, seems far removed

from the coercive “unwarned custodial interrogation” at issue

in Miranda. Id. Moreover, requiring knowledge of the terms of

an agreement in this setting would invite frequent “oath-

swearing battles,” with the attendant costs in the form of

drawn-out evidentiary hearings and delays.

Nonetheless, we have not received adequate briefing on

this issue from the parties, and we need not address it now. For

even if the Fifth Amendment required that Otunyo understand

the immunity promised by the Government, that standard was

satisfied here. No evidence other than Otunyo’s testimony

lends support to his alleged misunderstanding of the

agreement, and the district court found that Otunyo’s testimony

was not credible. We review that credibility finding for clear

error. United States v. Cunningham, 145 F.3d 1385, 1392 (D.C.

Cir. 1998). Under this standard of review, a factual “finding

that is ‘plausible’ in light of the full record—even if another is

equally or more so—must govern.” Cooper v. Harris, 137 S.

Ct. 1455, 1465 (2017).

The finding of the district court is certainly “plausible.”

The agreement Otunyo signed is clear. Although the legal

nuances may be difficult for an unaided layman to grasp,

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Otunyo acknowledged that his attorney explained the terms of

the agreement, and that he understood it. The hearing testimony

is consistent with that. Otunyo’s former attorney and a

government attorney had each explained the scope of the

promised immunity to Otunyo before and during the meeting.

Otunyo recalled the vivid story about a dead body and a shovel.

Otunyo spoke English well and was educated and savvy.

Otunyo also dissembled about other matters, implying that the

Government had promised him a visa in exchange for attending

the meeting, only to walk that back on the stand lest the court

find he was “lying.” In short, the agreement and parol evidence

plausibly show that Otunyo understood the agreement. That

finding of fact governs this appeal. We are therefore compelled

to hold, and confidently do hold, that Otunyo understood the

scope of his immunity and gave up his password voluntarily.

B. The District Court Got the Advisory Sentencing Range

Right

Otunyo objects on a number of grounds to the

recommended sentencing range determined by the district

court. We have considered Otunyo’s numerous objections, and

we reject them all, but we discuss only three.

1. The base offense level for the underlying bank

fraud was seven

The base offense level for Otunyo’s money laundering

counts is “[t]he offense level for the underlying offense from

which the laundered funds were derived.” U.S.S.G.

§ 2S1.1(a)(1). Otunyo derived the laundered funds from acts of

bank fraud. The district court, therefore, had to determine the

offense level for the conduct of bank fraud that was the source

of the laundered funds.

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The guideline applicable to bank fraud, § 2B1.1, provides:

(a) Base Offense Level:

(1) 7, if (A) the defendant was convicted of an offense

referenced to this guideline; and (B) that offense of

conviction has a statutory maximum term of

imprisonment of 20 years or more; or

(2) 6, otherwise.

According to the district court, “the plain text of the guideline

dictates that the defendant’s base offense level should be 7, not

6.” Otunyo nonetheless argues the base offense level for his

conduct of bank fraud should be six. We interpret the text of

the guideline de novo. United States v. Day, 524 F.3d 1361,

1374 (D.C. Cir. 2008).

We agree with the district court. Otunyo’s two convictions

for bank fraud fit squarely under the text of paragraph (a)(1).

Bank fraud (A) is “referenced to this guideline,” see U.S.S.G.

§ 2B1.1 cmt. n.2(A) & app. A, and (B) has a maximum term of

imprisonment of more than 20 years. 18 U.S.C. § 1344. Otunyo

“was convicted of an offense of” bank fraud so, per paragraph

(a)(1), his base offense level is seven.

Otunyo makes a convoluted argument to the contrary,

relying upon the grouping rules, the commentary, and

unpublished dispositions from other circuits. In short, Otunyo

argues that because the district court was determining the

offense level for the “most serious” offenses—the two counts

of money laundering—the court had to ignore Otunyo’s

separate convictions for bank fraud. As Otunyo puts it, the

district court had to focus only upon “the ‘offense of

conviction,’” which he understands as a term of art that means

13

only the “most serious” money laundering offenses that dictate

the offense level under the Guidelines. U.S.S.G. § 3D1.3(a).

A close reading reveals the flaw in Otunyo’s argument.

The text does not say “the” offense of conviction, as he puts it.

It says “an” offense of conviction. This small textual difference

matters. “The chief grammatical function of an is in contrast

with the. It connotes a thing not previously noted or

recognized; the connotes a thing previously noted or

recognized.” Webster’s New Universal Unabridged Dictionary

63 (2nd ed. 1983). The use of the indefinite article “an” does

not refer a reader back to the definite money laundering counts

that are the “most serious” within a group. Rather, “an” is best

read to mean “any one.” Id. The guideline therefore tells a

district court that, if (1) “any one” of the defendant’s

convictions is governed by § 2B1.1 and (2) that offense carries

a maximum term of 20 or more years, then the base offense is

seven.

2. The district court did not double-count Otunyo’s

sophisticated conduct

The district court applied an enhancement to Otunyo’s

underlying acts of bank fraud because his conduct “involved

sophisticated means and [Otunyo] intentionally engaged in or

caused the conduct constituting sophisticated means.” U.S.S.G.

§ 2B1.1(b)(10)(C); see also id. § 2B1.1 cmt. 9(B) (defining

sophisticated means). The district applied another

enhancement because Otunyo was convicted of a conspiracy to

launder money and “the offense involved sophisticated

laundering.” Id. § 2S1.1(b)(3); see also id. § 2S1.1 cmt. 5(A)

(defining sophisticated laundering). On appeal, relying upon

commentary to the guideline for money laundering, Otunyo

argues the district court double-counted sophisticated conduct.

14

The commentary provides:

Non-Applicability of Enhancement. If subsection (b)(3)

applies, and the conduct that forms the basis for an

enhancement under the guideline applicable to the

underlying offense is the only conduct that forms the basis

for application of subsection (b)(3) of this guideline, [then]

do not apply subsection (b)(3).

Id. § 2S1.1 cmt. n.5(B). The commentary modestly clarifies the

scope of the enhancement for sophisticated laundering: For the

enhancement to apply, the conduct must involve at least some

sophisticated laundering. It is not enough that a defendant

engaged in sophisticated criminal acts to obtain control of the

proceeds. For example, if a defendant sells drugs using a highly

sophisticated network of front businesses but engages in no

other “complex or intricate” efforts on the back end to conceal

the unlawful origin of the drug sale proceeds, id. § 2S1.1 cmt.

5(A), then the enhancement for sophisticated laundering does

not apply.

The question, then, is whether “the only conduct that

form[ed] the basis for” the enhancement was the sophisticated

bank fraud. It was not. Otunyo’s money laundering involved

separate “complex and intricate” means of concealing the

funds, including fictitious entities, shell corporations, and

several levels of transactions or “layering.” As the district court

explained, Otunyo “used separate fraudulent bank accounts to

remove the funds stolen through the check fraud scheme by

drawing checks on the first fraudulent account into which the

stolen funds were originally deposited, made payable to a

second fraudulent bank account.” One scheme alone involved

two fictitious entities used to launder the proceeds as a payment

for a car bought at auction and a payment to a petroleum

company. Otunyo may have engaged in even more

15

sophisticated acts of bank fraud, but that is not the test. The test

is whether “the only conduct that forms the basis” for the

enhancement is the same as the sophisticated conduct in the

bank fraud. That test is not met here because at least some of

Otunyo’s laundering conduct was also “complex and intricate.”

We therefore reject this argument.

3. Otunyo was a supervisor

Otunyo next argues the district court erred when applying

an upward adjustment for Otunyo’s aggravating role as a

“manager or supervisor.” U.S.S.G. § 3B1.1(b). That guideline

provides:

If the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five

or more participants or was otherwise extensive, increase

by 3 levels.

Otunyo has conceded the money laundering involved five or

more participants. In fact, it involved at least eight participants.

The only question is whether the district erred in concluding

Otunyo was a “manager or supervisor,” a question we review

with “due deference.” United States v. Olejiya, 754 F.3d 986,

990 (D.C. Cir. 2014).

Ordinarily, we would have no difficulty upholding the

conclusion of the district court. The record is replete with

evidence of Otunyo’s role as a supervisor. We have previously

held that similar decision-making authority and control over

other members of a check fraud conspiracy earns a middle-rung

enhancement as a supervisor. Id. at 991–92. In the parlance of

check fraud, Otunyo recruited, trained, and directed “runners”

to cash checks and register dummy corporations. Id. at 991.

“[A]lthough [Otunyo] was not the kingpin, he was also not

16

merely a runner but instead at least a manager or supervisor.”

Id.

As Otunyo points out for the first time on appeal, however,

the commentary in the guideline for money laundering limits

the scope of the supervisory activity that may be considered

when applying the adjustment. The commentary provides:

Notwithstanding §1B1.5(c), in cases in which subsection

(a)(1) applies [as it does here], application of any Chapter

Three adjustment shall be determined based on the offense

covered by this guideline (i.e., the laundering of criminally

derived funds) and not on the underlying offense from

which the laundered funds were derived.

U.S.S.G § 2S1.1 cmt. n.2(C). As the Third Circuit has

explained in plain English, this commentary

directs that adjustments contained in Chapter 3 are to be

applied based on the money laundering behavior alone, not

on the underlying offense from which the laundered funds

were derived. In other words, the [management or

supervision] has to be manifested in how the money is

laundered, not in how the money was gained.

United States v. Capps, 977 F.3d 250, 255 (3d Cir. 2020). The

district court, therefore, had to decide whether Otunyo was a

manager or supervisor of the activity based solely upon his role

in supervising “the laundering of criminally derived funds.”

U.S.S.G. § 2S1.1 cmt. n.2(C).

Otunyo argues the district court overlooked this

commentary, failed to separate the relevant conduct, and

erroneously applied an adjustment based upon Otunyo’s role in

supervising “the conduct of the bank fraud scheme,” not the

17

laundering scheme. Otunyo never raised this argument before

the district court. We therefore review for plain error. Fed. R.

Crim. P. 52(b).

Several circuits have already held that a failure to adhere

to this commentary when applying an adjustment amounts to

plain error. See Capps, 977 F.3d at 257 (“Given the text of

Commentary Note 2(c), we think the error is plain.”); United

States v. Arellanes-Portillo, 34 F.4th 1132, 1140 (10th Cir.

2022) (same); United States v. del Carpio Frescas, 932 F.3d

324, 332–33 (5th Cir. 2019) (same); see also United States v.

Salgado, 745 F.3d 1135, 1138–39 (11th Cir. 2014) (concluding

there was error on de novo review).

For our part, we have held an error is obvious enough if it

runs afoul of a clear legal norm, such as the text of a Sentencing

Commission policy statement or the clear text of a guideline.

United States v. Long, 997 F.3d 342, 357 (D.C. Cir. 2021);

United States v. Brown, 892 F.3d 385, 400 (D.C. Cir. 2018).

This case is not so straightforward, however. The commentary

is clear, but unlike the text of a guideline, the commentary is

not a binding legal norm, and we do not defer to the

commentary if it is “inconsistent with, or a plainly erroneous

reading of, that guideline.” Stinson v. United States, 508 U.S.

36, 38 (1993). Section 1B1.5(c), moreover, says that a Chapter

3 adjustment is applied to the underlying offense conduct

“except as otherwise expressly provided.” One would think an

express exception should prominently appear in the text of the

guideline, not in an easily overlooked commentary note.

Reasonable jurists may question why overlooking an exception

that appears only in the commentary should be considered

“obvious” error. See del Carpio Frescas, 932 F.3d at 342

(Oldham, J., concurring) (“Does this strike anyone as plain and

obvious?”).

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We need not, and do not, decide whether there was error,

or whether the error was obvious enough to be plain. The

Government argues that “even if the district court should have

only looked at the money-laundering activity, there still was

ample evidence to support the enhancement.” We take this to

mean the alleged error does not affect “substantial rights”

because the record shows that Otunyo was in fact a supervisor

of the money laundering. Fed. R. Crim. P. 52(b); see also Greer

v. United States, 141 S. Ct. 2090, 2098 (2021) (“[A]n appellate

court conducting plain-error review may consider the entire

record—not just the record from the particular proceeding

where the error occurred.”).

In order to show the error affected his substantial rights on

plain error review, Otunyo must “show a reasonable

probability that, but for the error, the outcome of the

proceeding would have been different.” Molina-Martinez v.

United States, 578 U.S. 189, 194 (2016). He has not made this

showing. Otunyo gave several supervising instructions to “Co-

Conspirator F.” We find at least three telling examples of

supervision that together compel an adjustment.

First, during one scheme, Otunyo told Co-Conspirator F to

launder funds by sending a $16,500 check for an “Auction car

payment” from a fraudulent account to a fictitious company

created by Otunyo. Second, during this same scheme, Otunyo

messaged Co-Conspirator F a fake identity so the co-

conspirator could establish a personal bank account to launder

funds. Third, Otunyo instructed Co-Conspirator F to launder

funds by making withdrawals and debit transactions. These

instructions are compelling evidence that Otunyo supervised

the money laundering. He was in charge of the runners in the

scheme not just when they carried out the check fraud, but also

when they concealed the proceeds of the fraud. Otunyo,

19

therefore, fails to show a reasonable probability of a different

outcome.

C. Otunyo’s Sentence Was Reasonable

Otunyo argues his sentence was unreasonably long. He

compares his sentence to the sentence of Michael Afram Orji,

a fraudster with whom Otunyo had previously worked. The

comparison is an odd one because Orji received a ten-year

prison sentence for bank fraud and money laundering, almost

double the sentence the district court imposed upon Otunyo.

Otunyo complains the district court gave Orji two variances it

did not give to him. By failing to give him the same variances,

Otunyo argues, the district court did not give enough weight to

“the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553(a)(6).

Our “review of criminal sentences for substantive

reasonableness is quite deferential. It will be the unusual case

when an appeals court can plausibly say that a sentence is so

unreasonably high or low as to constitute an abuse of

discretion.” United States v. Knight, 824 F.3d 1105, 1110–11

(D.C. Cir. 2016) (quotation marks omitted). We presume a

sentence within the range recommended by the Guidelines is

not excessive, and the district court in this case started in the

middle of the recommended range and then granted two

downward departures. United States v. Law, 806 F.3d 1103,

1106 (D.C. Cir. 2015). Our presumption is especially relevant

when a defendant alleges an unwarranted disparity, as

“avoidance of unwarranted disparities was clearly considered

by the Sentencing Commission when setting the Guidelines

ranges.” Gall v. United States, 552 U.S. 38, 54 (2007). “The

best way to curtail ‘unwarranted’ disparities is to follow the

Guidelines, which are designed to treat similar offenses and

20

offenders similarly.” United States v. Bartlett, 567 F.3d 901,

908 (7th Cir. 2009).

Otunyo fails to show any abuse of discretion. To begin,

any comparison between himself and Orji is inapt. Orji had a

far more extensive criminal history, so he does not have a

“similar record[].” Orji also engaged in more egregious

criminal conduct, so he was not found guilty of “similar

conduct.” Because Orji was far more culpable and therefore

faced a longer sentence, the district court reasonably found the

comparison inapt.

Otunyo seems to think the difference in culpability should

cut in his favor, not against him. He complains that, in giving

Orji a variance, the district court gave weight to Orji’s speedy

decision to plead guilty and cooperate, and claims this in effect

punished Otunyo for being adversarial and therefore violates

his due process rights. Far from showing the disparity was

“unwarranted” or unconstitutional, this shows only that Otunyo

and Orji were not similarly situated, and therefore the disparity

in their treatment was warranted. Bartlett, 567 F.3d at 908–09.

“[I]t is not forbidden to extend a proper degree of leniency

in return for guilty pleas.” Corbitt v. New Jersey, 439 U.S. 212,

223 (1978). “The whole notion of showing leniency to some

deserving defendants–that is, of treating them more mildly than

others–requires withholding leniency from others who appear

less deserving.” United States v. Jones, 997 F.2d 1475, 1478

(D.C. Cir. 1993). It is not unconstitutional, for example, for a

judge to show less leniency to a defendant who acknowledges

guilt only after conviction than to “an otherwise identical

defendant who showed greater acceptance of responsibility by

acknowledging his guilt at an earlier stage.” Id. at 1477; see

also United States v. Lopesierra-Gutierrez, 708 F.3d 193, 208

(D.C. Cir. 2013) (“That some defendants pled guilty while

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others did not provides a perfectly valid basis for a sentencing

disparity, and such disparity imposed no impermissible burden

on [the defendant’s] jury-trial right.” (footnote omitted)). We

think it is equally lawful for a court to give a downward

variance to a more cooperative defendant while denying the

variance to a more litigious defendant. Otunyo is not entitled to

benefit because someone else was more cooperative.

Otunyo’s argument also fails for a second, more basic

reason. Section 3553(a)(6) is focused solely upon “sentence

disparities.” This tells the court to evaluate the difference in the

outcome (the sentence), not differences in the sentencing

process.

III. Conclusion

In sum, we reject all of Otunyo’s arguments. The judgment

of the district court is, therefore,

Affirmed.