UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

ADEDOYIN ADETOROY, a/k/a
                                                                        No. 99-4284
Adedoyin Adetoro, a/k/a
Mohammed Fard, a/k/a Cory
Watson, a/k/a Bradley Miller,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-98-170)

Submitted: September 30, 1999

Decided: November 12, 1999

Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

R. Clarke Vandervort, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Philip H. Wright, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Adedoyin Adetoroy* pled guilty to one count of bank fraud in vio-
lation of 18 U.S.C.A. § 1344 (West Supp. 1999) and was sentenced
to a term of thirty months' imprisonment. Adetoroy appeals his sen-
tence, challenging the district court's determination of his relevant
conduct, the amount of restitution, an enhancement for obstruction of
justice, and a denial of a downward adjustment for acceptance of
responsibility. We affirm in part, vacate in part, and remand.

Adetoroy first challenges the court's determination of relevant con-
duct. In addition to his guilty plea to one count of bank fraud, Ade-
toroy admitted committing certain fraudulent acts in West Virginia
beginning in April 1998. He further admitted involvement with co-
defendant Olaitan Balogun in committing bank fraud in West Vir-
ginia. Adetoroy contends, however, that Balogun independently com-
mitted the acts of fraud the court attributed to him as relevant conduct
and that Balogun acted with a separate accomplice in committing
them.

District courts may take "relevant conduct" into account in deter-
mining a defendant's sentence whether or not the defendant has been
convicted of the charges constituting the relevant conduct. See U.S.
Sentencing Guidelines Manual § 1B1.3; United States v. Jones, 31
F.3d 1304, 1316 (4th Cir. 1994). Section 1B1.3(a)(1)(A) of the Sen-
tencing Guidelines provides that relevant conduct includes all acts of
the defendant, acts aided and abetted by him, and acts for which he
is otherwise accountable which were "in furtherance of" the offense
of conviction. Further, § 1B1.3(a)(1)(B) provides that all reasonably
foreseeable acts and omissions of others in furtherance of jointly
_________________________________________________________________
*We have maintained the spelling of Appellant's name as it was dock-
eted in the district court.

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undertaken criminal activity, involving a criminal plan, scheme,
endeavor, or enterprise, whether or not charged as a conspiracy, may
be considered relevant conduct when calculating a sentence. In cases
of fraud, § 1B1.3(2) provides for inclusion of all acts mentioned in
§ 1B1.3(B) that were part of the same course of conduct or common
scheme or plan as the offense of conviction. The government must
establish the existence of these reasonably foreseeable acts and omis-
sions by a preponderance of the evidence. See Jones, 31 F.3d at 1316
(citing United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir.
1992)). Whether the government has successfully shouldered its bur-
den of proof is a question of fact reviewed for clear error. See Jones,
31 F.3d at 1316.

The probation department conducted an extensive investigation
into the fraudulent acts of Adetoroy and Balogun from January 1998
to September 1998. The results of that investigation were that Ade-
toroy, in conjunction with Balogun and Dimiji Bright, engaged in an
extensive scheme to defraud banks in West Virginia and other states
during 1998. At the sentencing hearing, Balogun testified that she and
Adetoroy did engage in fraudulent activities in West Virginia involv-
ing opening checking and/or savings accounts under phony names,
"boosting" those accounts with checks written on credit card accounts
or legitimate checking accounts that had been "taken over," and then
withdrawing funds from the accounts before the banks detected the
fraudulent activity. Purchases on the credit cards and bank cards of
these fraudulent accounts were also made.

Secret Service Agent Gina Noschese, who was involved in the
investigation, also testified at the sentencing hearing regarding the
different fraudulent activities by Adetoroy and Balogun. The presen-
tence investigation report, adopted by the district court, along with the
testimony elicited at the sentencing hearing, established that Ade-
toroy, in concert with Balogun, in concert with Bright, and on his
own, engaged in a well-organized scheme to defraud banks in West
Virginia. The scheme involved several different acts of fraud involv-
ing several different aliases and different addresses, yet the method
of operation was similar in every case. Thus, the evidence established
that Adetoroy engaged in virtually an uninterrupted spree of fraudu-
lent acts, all following the same pattern of establishing mail drops,
opening accounts, and making fraudulent transfers from one account

                    3
to another during April 1998, May 1998 and July through September
1998. Accordingly, we find that the district court's factual findings
and determination of relevant conduct were not clearly erroneous. See
United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).

Adetoroy next contends that the district court's order of restitution
for $54,859.74 includes $5000 from a fraudulent transaction in the
name of John Amoruso for which he should not be held responsible.

Because Adetoroy failed to object to the restitution order during his
sentencing hearing, we review for plain error. See United States v.
Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Under the Victim and
Witness Protection Act (VWPA) of 1982, the district court may order
a defendant to pay "restitution to any victim" of an offense of convic-
tion. 18 U.S.C. § 3663(a)(1) (West Supp. 1999); see United States v.
Blake, 81 F.3d 498, 506 (4th Cir. 1996) (observing that the authority
of a district court to order restitution is limited to the terms of the
VWPA). As Blake explains, an individual or organization is a "vic-
tim" under § 3663 if the act that harms them is either "conduct under-
lying an element of the offense of conviction, or an act taken in
furtherance of a scheme, conspiracy, or pattern of criminal activity
that is specifically included as an element of the offense of convic-
tion." Blake, 81 F.3d at 506. Additionally, § 3663(a)(3) provides that
"[t]he court may . . . order restitution in any criminal case to the
extent agreed to by the parties in a plea agreement." Therefore, if a
plea agreement states an amount of restitution greater than the loss
attributable to the offense of conviction, the defendant may still be
ordered to pay up to the sum specified in the plea agreement. See
United States v. Broughton-Jones, 71 F.3d 1143, 1147-48 (4th Cir.
1995).

Here, Adeteroy's plea agreement included a provision in which he
assented to pay restitution of $54,825 "[n]otwithstanding the offense
of conviction." J.A. 25. In imposing restitution, however, the district
court did not refer to the agreement and in fact imposed restitution of
$54,859.74, an amount $34.37 higher than the agreed-upon amount.
The order of restitution thus does not appear to have been based on
the agreement of the parties pursuant to § 3663(a)(3).

The award of restitution is also inconsistent with§ 3663(a)(1). The
offense of conviction, as contained in Count Three of the Superseding

                    4
Indictment, encompassed the Bradley Miller and Cory Watson frauds
and the identified victim is Bank One, West Virginia. (JA I, 19). The
presentence report attributes a loss of $16,800 to the Bradley Miller
fraud and $8800 to the Cory Watson fraud. (JA II, 174). Thus, it
appears that the loss for the offense of conviction is $25,600, well
below the amount agreed upon in the plea agreement. Also, the vic-
tims as identified by the court at sentencing, Bank One, Chase Man-
hattan Bank and NationsBank, go beyond the single victim listed in
the indictment and in the PSR for the offense of conviction, which
was Bank One. Further, the frauds committed by Adetoroy that
caused losses to NationsBank and Chase Manhattan did not constitute
an element of the offense of conviction. The court therefore erred in
ordering Adetoroy to pay restitution to NationsBank and Chase Man-
hattan Bank.

The restitution order of the district court thus was erroneous; more-
over, the error was plain in light of the clear language of the VWPA
and the holding of this court in Blake. Further, the imposition of resti-
tution that complied neither with § 3663(a)(1) nor the plea agreement
affected Adetoroy's substantial rights. We also conclude that the cir-
cumstances of this case warrant the exercise of our discretion to
notice plain error. See United States v. Olano , 507 U.S. 725, 732-37
(1993) (setting forth standards guiding plain error analysis). Accord-
ingly, we vacate the district court's order of restitution and remand for
imposition of an order of restitution that complies either with the plea
agreement or with § 3663(a)(1).

Adetoroy next contends the district court erred in enhancing his
base offense by two levels for obstruction of justice under USSG
§ 3C1.1 because there was no evidence at the sentencing hearing that
he made materially false or misleading statements and nothing in the
presentence investigation report specified any false or misleading
statement allegedly made by him.

An adjustment for obstruction of justice is warranted "[i]f (A) the
defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investi-
gation . . . of the instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant's offense of conviction and any
relevant conduct[.]" USSG § 3C1.1. This adjustment includes provid-

                     5
ing materially false information to a probation officer in respect to a
presentence or other investigation for the court. See USSG § 3C1.1,
comment. (n. 4(h)). We review the district court's factual findings
concerning obstruction of justice for clear error. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Whether the district
court properly applied § 3C1.1 to the defendant's conduct is reviewed
de novo. See United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir.
1990).

Adetoroy denied involvement in or knowledge of specific acts of
fraud that were included as relevant conduct by both the probation
department after its investigation and the district court. The presen-
tence report listed specific denials Adetoroy made during the presen-
tence investigation interview, and the findings and recommendations
of that report were adopted by the district court. While the court dis-
agreed with the presentence report and determined that two separate
acts of fraud that occurred in January 1998 were not attributable to
Adetoroy, his denials during the presentence investigation encom-
passed more than those two acts. Adetoroy also denied involvement
in any fraudulent activity in April 1998, in the use of mail drops, in
the Chrnie King fraud, and the Kevin Ossey fraud. At the conclusion
of the sentencing hearing, however, the district court attributed all of
these acts of fraud to Adetoroy as relevant conduct. Therefore, the
district court's determination that materially false information was
given by Adetoroy during the presentence investigation was not
clearly erroneous. Furthermore, Adetoroy's enhancement was based
on his denials of involvement in or knowledge of several acts of fraud
which the court determined were part of his scheme to defraud banks
in West Virginia. The denial of this conduct clearly related to the rele-
vant conduct in his case and, therefore, directly affected his sentence.
Therefore, the court correctly determined that Adetoroy's denials of
relevant conduct fell within § 3C1.1 and the application notes.

Finally, Adetoroy argues that he should have received a downward
adjustment, pursuant to USSG § 3E1.1(a), for acceptance of responsi-
bility. He contends that the court failed to give consideration to the
degree of his cooperation in the investigation.

The Sentencing Guidelines provide for a two-level decrease of the
offense level if the defendant clearly demonstrates acceptance of

                    6
responsibility for his offense. See USSG§ 3E1.1(a). The application
notes to § 3E1.1 explain that a defendant who falsely denies, or frivo-
lously contests, relevant conduct that the court determines to be true
has acted in a manner inconsistent with acceptance of responsibility.
See USSG § 3E1.1, comment. (n. 1(a)).

The district court found at the conclusion of the hearing that Ade-
toroy had not fully accepted responsibility for his involvement in the
fraudulent scheme and denied the decrease in offense level for accep-
tance of responsibility. The record is clear that Adetoroy did not
acknowledge involvement in fraudulent acts which the court ulti-
mately determined were part of the spree of fraudulent conduct he
committed in West Virginia in 1998 and therefore were relevant con-
duct. Further, the relevant portion of the presentence investigation
report, which was adopted by the court, recommended denying Ade-
toroy the downward adjustment and listed specific acts of fraud for
which Adetoroy denied responsibility.

Based on our review of the record, particularly the transcript of the
sentencing hearing wherein Adetoroy personally addressed the court,
we find the district court's factual findings and determination regard-
ing Adetoroy's lack of acceptance of responsibility were not clearly
erroneous.

For the foregoing reasons, we affirm the district court's findings
and determination with respect to the issues of relevant conduct, the
enhancement for obstruction of justice, and denial of acceptance of
responsibility. We vacate the order of restitution and remand for fur-
ther consideration by the district court. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

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