14-4144-cr
United States v. Davis

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of November, two thousand and fifteen.

Present:
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges,
            CHRISTINA REISS,
                        District Judge.*
____________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                  v.                                                                      No. 14-4144-cr

OLUWOLE OJUDUN,

                           Defendant,

ANTHONY DAVIS,

                  Defendant–Appellant.
____________________________________________________

FOR APPELLANT:                      George R. Goltzer, Law Office of George Robert Goltzer, New
                                    York, New York.

*
  The Honorable Christina Reiss, Chief District Judge of the United States District Court for the District of Vermont,
sitting by designation.

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FOR APPELLEE:           Daniel S. Noble, Diane Gujarati, Assistant United States
                        Attorneys, for Preet Bharara, United States Attorney for the
                        Southern District of New York, New York, New York.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Forrest, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Anthony Davis was convicted pursuant to guilty pleas of bank fraud

conspiracy in violation of 18 U.S.C. § 1349 and possession of stolen mail in violation of 18

U.S.C. § 1708. The district court sentenced Davis to the following terms of imprisonment on

both counts: seven years and three years, respectively. On appeal, Davis argues that (1) the

district court’s intended loss calculation was “speculative[],” and (2) the district court abused its

discretion by imposing an above-Guidelines sentence. We assume the parties’ familiarity with

the underlying facts and the procedural history of the case.

I. The loss calculation

       We “review the district court’s interpretation of the Guidelines de novo, and its findings

of fact relevant to the Guidelines application for clear error.” United States v. Broxmeyer, 699

F.3d 265, 281 (2d Cir. 2012). When calculating the proper offense level for a crime involving

altered or counterfeit instruments under the Guidelines, the district “court need only make a

reasonable estimate of the loss.” U.S.S.G. § 2B1.1, cmt. n.3(c); accord United States v. Carboni,

204 F.3d 39, 46 (2d Cir. 2000). The “loss” is the “greater of actual loss or intended loss.”

U.S.S.G. § 2B1.1, cmt. n.3(a).

       Davis does not dispute that his pre-guilty plea intended loss figure was “approximately”

one million dollars. Nor does Davis dispute that his post-guilty plea intended loss figure was at

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least $4,460. What Davis contends is that the district court’s equating of “approximately one

million” with one “million even” was speculative. Davis does not point to any evidence that the

intended loss was less than one million dollars, however, and we decline to conclude that the

district court failed to “make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1, cmt. n.3(c);

see also United States v. Norman, 776 F.3d 67, 79−80 (2d Cir. 2015) (holding that the district

court did not commit clear error by relying on the defendant’s representation of loss where there

was nothing in the record to support a finding that the loss was in fact less than that amount).

II. The upward variance

       “[A]ppellate courts may not presume that every variance from the advisory Guidelines is

unreasonable.” Rita v. United States, 551 U.S. 338, 355 (2007). We must “take into account the

totality of the circumstances, including the extent of any variance from the Guidelines range.”

Gall v. United States, 552 U.S. 38, 51 (2007). In this Circuit, we apply an abuse of discretion

standard to substantive sentencing appeals. United States v. Rigas, 583 F.3d 108, 121 (2d Cir.

2009). And we evaluate whether an upward variance “represents an abuse of discretion based on

the reasons given by the district court when imposing the sentence.” United States v. Douglas,

713 F.3d 694, 700 (2d Cir. 2013) (citing United States v. Sindima, 488 F.3d 81, 85–86 (2d Cir.

2007)). The district court calculated a Guidelines range of 70–87 months, and imposed a 33

month upward variance from the top of that Guidelines range.

       When the district court imposed the sentence in this case, she explained that the upward

variance was due to Davis’s continuation of his scheme after his cohorts were indicted and even

after he was arrested for his participation and had pled guilty. On this record there are

“‘sufficiently compelling’ reasons to support the deviation.” United States v. Aldeen, 792 F.3d




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247, 254 (2d Cir. 2015) (quoting United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

banc)).

          Defendant contends, briefly and for the first time on appeal, that the upward variance

imposed by the district court resulted in his receiving an unjustifiably disparate sentence when

compared to his codefendant Oluwole Ojudun. Ojudun, however, was not charged with or

convicted of possession of stolen mail. Nor did Ojudun abuse a position of public trust or

continue the scheme post-plea. The district court did not exceed the bounds of its discretion by

imposing disparate sentences under these circumstances.

          We have considered all of Davis’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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