                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0050n.06
                            Filed: January 15, 2008

                                            NO. 06-4561

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



ABDOULAHI OUMAR CISSE,                                )
                                                      )
       Defendant-Appellant,                           )       ON APPEAL FROM THE UNITED
                                                      )       STATES DISTRICT COURT FOR
v.                                                    )       THE SOUTHERN DISTRICT OF
                                                      )       OHIO
UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee.                            )



       Before: KEITH and CLAY, Circuit Judges; and HOOD, Senior District Judge.*

       PER CURIAM. Defendant-Appellant Abdoulahi Oumar Cisse (“Defendant”) appeals the

sentence imposed by the district court upon his plea of guilty to a charge of Wire Fraud, in violation

of 18 U.S.C. § 1343. The district court sentenced Defendant to 63 months imprisonment, three years

of supervised release, restitution in the amount of $2,777,661.41, and a $100.00 special assessment.

Defendant appeals his sentence of 63 months imprisonment and restitution in the amount of

$2,777,661.41. He claims that it is unreasonable because the district court erred in determining the

applicable advisory sentencing guideline range as it did not require the United States to present

evidence concerning the amount of loss even though Defendant disputed the loss amount attributed



* The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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to him. Defendant also claims that a 63-month sentence was not procedurally and substantively

reasonable as the district court failed to provide a legal and factual basis for the guideline calculation

and failed to articulate its findings under the United States Sentencing Guidelines and 18 U.S.C. §

3553(a). Defendant requests that his sentence be vacated and remanded to the district court. In

response, the United States of America has argued that the guideline range was properly calculated

and that the sentence was reasonable and properly supported by the district court’s articulation of its

findings.

        For the reasons which follow, the opinion of the district court is AFFIRMED.

I.      Factual and Procedural Background

        Acting in concert with others, Cisse bought SIM cards1 and used information from stolen

credit reports in order to fraudulently establish cellular telephone service which allowed international

roaming. The SIM cards were then sent overseas where they were used and roaming charges

incurred, resulting in losses to cellular telephone companies in the United States. Cisse worked with

others in this scheme, although he was not found to have had any direct involvement in the overseas

charges incurred by virtue of the use of the SIM cards.

        The Grand Jury for the Southern District of Ohio returned a two-count indictment against

Cisse, charging him with Wire Fraud. He pled guilty to one count of Wire Fraud pursuant to a plea

agreement, and the remaining count was dismissed.2 The Presentence Investigation Report (PSR)

identified the base offense level as 7, and then added three enhancements: 2 levels because a

substantial part of the fraud scheme was committed from outside the United States, 2 levels because


1
  A SIM card is a removable computer chip placed in a cellular phone that stores information
about the customer’s account. Cellular telephone service providers use SIM cards for billing and
tracking.
2
  Cisse and the United States agreed that the amount of the loss would be determined by the
district court at the sentencing hearing.

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the offense involved trafficking in unauthorized access devices, and 18 levels because the offense

involved a total loss of $2,777,661.41 (more than $2,500,000 but less than $7,000,000). Three levels

were then subtracted for acceptance of responsibility, resulting in a total offense level of 26. With

the addition of points related to a prior state conviction, Cisse was placed in Criminal History

Category III. Following a series of three sentencing hearings, during which Cisse objected to the

assignment of the criminal history points, the district court lowered the Criminal History Category

from Category III to Category I and sentenced Cisse at the lowest end of the applicable range, i.e.,

63 months imprisonment and restitution in the amount of $2,777,661.41.

II.    Jurisdiction

       The district court had jurisdiction pursuant to 18 U.S.C. § 3231 because Defendant was

charged with and convicted of offenses against the laws of the United States, including violation of

18 U.S.C. § 1343. This Court has jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291,

which confers appellate jurisdiction over final orders of the district court.

III.   Standard of Review

       This Court reviews a criminal sentence for reasonableness. United States v. McGee, 494 F.3d

551, 554 (6th Cir. 2007). Sentences properly calculated under the Sentencing Guidelines are credited

with a rebuttable presumption of reasonableness. Id. (citing Rita v. United States, 127 S.Ct. 2456,

2462-63 (2007)). A sentence is unreasonable if the district court failed to consider the applicable

Guideline range or those factors set forth in 18 U.S.C. § 3553(a). United States v. Cage, 458 F.3d

537, 540 (6th Cir. 2006). The factual findings used when applying the Sentencing Guidelines are

reviewed for clear error, while legal conclusions of the district court are reviewed de novo. United

States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006).




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IV.    Analysis

       A.      Losses Attributable to Cisse

       Defendant argues his sentence is unreasonable because the district court relied on factual

findings contained in the PSR when it assigned a loss amount to him even though the United States

did not and could not establish that Cisse was, himself, responsible for each and every dollar reported

lost. He claims that the PSR and, by extension, the district court erroneously concluded that any

cellular phone account which was opened and utilized with credit information stolen from Union

Savings Bank was loss personally attributable to him.

       The Sentencing Guidelines specifically provide that where criminal activity is jointly

undertaken, whether or not charged as a conspiracy, a defendant bears responsibility for reasonably

foreseeable acts or omissions of others occurring in furtherance of that activity. UNITED STATES

SENTENCING GUIDELINES, § 1B1.3(a)(1)(B). Defendant admitted that he was playing a role in the

fraud scheme, that others were involved, and that he knew how the fraud scheme worked. He does

not dispute the PSR’s conclusion that a loss of $2,777,661.41 is ultimately attributable to accounts

set up using credit reports stolen from the Union Savings Bank during the specific time frame alleged

in the indictment.    Specifically, those losses were sustained by virtue of roaming charges

accumulated on phony cell phone accounts set up using credit reports stolen by Cisse’s accomplice

from the bank and from whom Cisse admitted he obtained credit reports.

       Whether Cisse is directly responsible for the ultimate loss amount is of no consequence

because, as the district judge acknowledged during the sentencing hearing, “[h]e [Defendant] started

the fire by initiating the purchase of the cell phone accounts and . . . acquiring the SIM cards and

sending them overseas. I think he buys responsibility for whatever happens as a result of his acts.”

The district judge reasonably relied on the PSR which attributed $2,777,661.41 in fraud losses to the

Defendant. It follows that the sentence is reasonable with regard to the calculation of loss.

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       B.      The Sentence Was Neither Procedurally Nor Substantively Unreasonable

       Defendant claims that the district court failed to properly address and rule on his objections

to the loss amount calculation. As discussed above, this Court is of the opinion that the district court

properly relied on the loss amount calculation, applied the proper guideline range, and handed down

a reasonable sentence. In reaching its decision, the district court held three separate sentencing

hearings in which Cisse’s objections to the loss calculation were discussed. The district court, in its

findings, reasonably determined that it would rely on the information presented by the United States

of America through the PSR rather than the Defendant’s representations of the scope of his activity.

       Further, there is no merit to Defendant’s argument that the district court failed to give a

proper accounting of § 3553(a) factors, thus failing to address his request for a downward variance.

When a defendant raises an argument in seeking a downward variance, the record must reflect that

the argument was “considered” and that the district court articulated a basis for rejecting it. United

States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).

       In the course of the proceedings before the district court, Defendant cited three factors that

he felt supported a downward variance from the advisory guideline range, as follows:

               (1)     Cisse’s history of physical abuse and emotional abuse that he
                       suffered as a child at the hands of his father and his father’s
                       10 wives;

               (2)     A lack of evidence that Cisse received a substantial financial
                       benefit from his participation in the sale of SIM cards; and

               (3)     Cisse’s lack of prior criminal record or criminal conduct.

       The record shows that factors “2” and “3” were discussed at length during sentencing. While

factor “1” was not mentioned explicitly, the “context and the record make clear that the sentencing

judge considered the evidence and arguments.” Rita v. United States, 127 S.Ct. 2456, 2469 (2007).

The district court judge, prior to the imposition of Cisse’s sentence, stated the following:

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               For the record, the Court has reviewed – and certainly the Court – the
               record will reflect after three hearings the Court’s reviewed the
               presentence report and all addendums to it. I’ve reviewed the
               objections and any response to the objections and I’ve ruled on those.

Considering that the district court judge then proceeded to discuss the gravity of the offense, there

is no evidence that the Court failed to appropriately consider the factors argued for seeking a

downward variance and articulate a basis for rejecting them. Rather, the district court sufficiently

articulated its reasoning in deciding to impose a sentence on Cisse so as to allow for reasonable

appellate review by this Court. Ultimately, the sentence was procedurally and substantively

reasonable and will not be disturbed.

V.     Conclusion

       The district court judge presiding over this matter found the perfect metaphor. Once a party

starts a fire, he or she has to be responsible for the results of his actions, whatever they may be. He

might have just easily have said that the defendant “made his own bed” or “dug his own grave,” but

the situation in which Cisse found himself is most aptly compared to a wildfire – growing as it

burned its way outside of the sphere in which Cisse lived and operated. Much like someone at the

edge of a dry forest with a book of matches, Cisse remains responsible for the damage caused by the

fire that he started, even though someone else may have fanned the flames. Having pled guilty to his

role in starting the fire, Cisse had ample opportunity to present his objections to the district court

over the course of the three hearings dedicated to his sentencing, and the record shows that his

arguments were heard and considered by the district court in determining his sentence. His sentence

will stand.

       For the foregoing reasons, we AFFIRM the sentence imposed by the district court.



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