                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 15-4306


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

OLUWASEUN SANYA,

                Defendant - Appellant.



                            No. 15-4574


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

OLUWASEUN SANYA,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Theodore D. Chuang, District Judge.
(8:12-cr-00379-TDC-1; 8:13-cr-00121-TDC-1)


Submitted:   May 31, 2016                  Decided:   June 14, 2016


Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Kenneth E. McPherson, KENNETH E. MCPHERSON, CHTD, Riverdale,
Maryland; Gregory Dolin, Catherine Florea, Marie Langlois,
UNIVERSITY OF BALTIMORE, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Sujit Raman, Chief of
Appeals, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Oluwaseun      Sanya    appeals      from   the   sentences   imposed      upon

resentencing after he pleaded guilty to conspiracy to commit

access    device    fraud,       access       device   fraud,    and    aggravated

identity theft in two related cases.                   In a first appeal, this

court ruled that the district court impermissibly participated

in plea negotiations on the charges of access device fraud and

aggravated identity theft.             We vacated those convictions and

both sentences and remanded for further proceedings.                          United

States v. Sanya, 774 F.3d 812, 814, 821-22 (4th Cir. 2014).                       On

remand, the cases were assigned to a new district court judge

and deconsolidated.          In the conspiracy to commit access device

fraud    case,   the    guilty    plea     remained     intact   and    the    court

sentenced   Sanya      to   90   months    of    imprisonment.     In    the    case

vacating the remaining convictions, the parties again entered

into a plea agreement and the court sentenced Sanya to 81 months

and one day of imprisonment, all to run consecutively to the

previous 90-month sentence.            Sanya appeals the sentences imposed

on both cases.         Counsel has filed an Anders v. California, 386

U.S. 738 (1967) brief challenging the criminal judgment in the

access device fraud and aggravated identity theft convictions.

Counsel found no meritorious issues related to the judgment but

questioned whether the plea agreement was supported by a factual



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basis       and    whether       the     consecutive      sentence      was     reasonable.

Finding no error, we affirm.

       We     first        address       the    90-month     sentence         imposed     for

conspiracy to commit access device fraud.                        Sanya argues that the

Government         presented           false    and     misleading      testimony        when

Detective Mengedoht testified that all the transactions on the

“Limnios spreadsheet” were captured on video surveillance.                                He

also contends that the Government presented losses above what

was agreed to in the plea agreement.                     The Government argues that

every transaction on the Limnios spreadsheet could be traced to

direct       video        or     photographic         evidence,    as     the     detective

testified that the transactions were all related to at least

credit card numbers used by co-conspirators at that location on

the   same        day.         Thus,    the    Government    argues,      the    court    was

justified in relying upon the Government’s loss spread sheets.

       Sanya’s argument is two-fold.                    First, whether the evidence

presented in the loss spreadsheets was misleading or false and,

further, violated the plea agreement.                       And, second, whether the

court erred in relying on the information.                        Sanya did not object

to    the    use     of    the       challenged      spreadsheets    at    resentencing,

therefore we review the claim for plain error.                          United States v.

Olano, 507 U.S. 725, 732 (1993).                       Although Sanya contends that

the   use     of    false       or     misleading     evidence    implicates       his   due

process rights and should be reviewed de novo,                                see Napue v.

                                                 4
Illinois,       360    U.S.      264,     271      (1959),       because       Sanya    did    not

articulate any objection on these bases for the district court

to rule upon, we review for plain error.

      We    conclude          that     the      court      did     not     plainly      err    in

considering       Detective          Mengedoht’s         testimony       and    the     relevant

amount of loss spreadsheets.                    It is clear from the record that

the   court      was     aware     that      the       detective    did    not       have    video

footage of conspirator Limnios making each transaction on the

contested spreadsheets, but the record reflects that the court

was aware of the type of evidence supporting the transactions.

We therefore find no plain error resulting in the violation of

Sanya’s due process rights and, further, that the testimony was

not misleading when viewed as a whole.

      Sanya also argued that the Government breached the plea

agreement       because       it     introduced         evidence     and       argued    for    an

amount     of     loss    exceeding          that       stipulated        to    in     the    plea

agreement.        Sanya’s statement of facts in the plea agreement

originally stated “hundreds of thousands of dollars” of loss was

involved        and    that      Sanya     directed        “hundreds”          of    fraudulent

transactions.          (J.A. 22, 24).                  This quantitative language was

eventually stricken from the agreement.

      Sanya’s argument alleges that the stricken language in the

statement of facts bound the Government not to argue that Sanya

was involved with hundreds of thousands of dollars of loss and

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hundreds of fraudulent transactions.                      This is simply not the

case.    In fact, the plea agreement contemplated the Government’s

ability to advocate for losses in excess of $400,000, and stated

the Government had the right to bring to the court’s attention

all     relevant        information          regarding     Sanya’s     conduct.     The

Government in fact did argue for losses over $400,000, without

objection by trial counsel that it was in violation of the plea

agreement.        This argument is patently frivolous.                   In summary,

after reviewing the entirety of the record at resentencing, we

are not convinced that the court plainly erred in considering

the contested testimony and transactions on the spreadsheets.

There is no false or misleading testimony or violation of the

plea agreement evident in the record when viewed as a whole.

Thus, we find no plain error on these related arguments.

      Next,       we    consider       the    reasonableness      of    the   sentence

imposed for the conspiracy to commit access device fraud.                          This

court    reviews       any     criminal       sentence,    “whether     inside,    just

outside,     or    significantly        outside    the     Guidelines    range,”    for

reasonableness,              “under     a     deferential        abuse-of-discretion

standard.”        United States v. King, 673 F.3d 274, 283 (4th Cir.

2012); see Gall v. United States, 552 U.S. 38, 51 (2007).                           The

first step in procedural reasonableness review is to evaluate

the district court’s Sentencing Guidelines calculations.                          Gall,

552   U.S.    at       51.      With    regard     to     the   calculation   of    the

                                               6
Guidelines range, we “review the [sentencing] court’s factual

findings for clear error, its legal conclusions de novo, and

unpreserved     arguments      for    plain      error.”        United   States     v.

Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (internal citations

omitted).

      Sanya    only    challenges      the      calculation      of   loss.        The

sentencing court “need only make a reasonable estimate of the

loss.”    USSG § 2B1.1 cmt. n.3(C); see United States v. Keita,

742 F.3d 184, 192 (4th Cir. 2014) (recognizing that the loss

amount    “need    not    be    determined         with     precision”   (internal

quotation     marks   omitted)).           We   conclude    that   the   court     was

justified in relying upon the Government’s loss spreadsheets.

As   Mengedoht’s      testimony      revealed,      every    transaction      on   the

Limnios   spreadsheet      could      in    some    way    be   linked   to   direct

video/photographic evidence.           In the vast majority of instances,

Detective Mengedoht had direct video evidence of Limnios (or one

of the known conspirators) using a stolen credit card number.

In the remainder of the transactions, where he did not have

direct video evidence of the particular fraudulent transaction

conducted by Limnios, the detective did have direct evidence of

one of the conspirators using that particular stolen account

number at a different time.

      This court’s decision in United States v. Keita is soundly

controlling in this case.            The facts of Keita are significantly

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similar to the facts of this case regarding loss.                            In Keita, a

jury   convicted      the    defendant    of    various        charges       related   to

credit   card   and    debit    card     fraud.         742    F.3d     at    186.      At

sentencing, the investigating detective produced a spreadsheet

detailing Keita’s fraudulent transactions, “including the dates,

the    locations,     the    credit     card     numbers       used,     the     amounts

charged, and the banks associated with the credit card numbers.”

Id. at 192.      The detective “noted that videotape surveillance

showed    [Keita]      conducting       many     of     the     listed        fraudulent

transactions,    and    that    other     losses      were     traced    through       the

stolen credit card information found on [Keita’s] laptops.”                            Id.

As this Court observed: “Regardless, each loss attributed to

Defendant was ultimately supported by videotape evidence; [as

the    detective]     explained,       ‘[i]f      I     had    no     video     of     the

transaction and I could not associate that credit card number

with one where we did have [video], then I . . . didn’t count it

and did not put it on the spreadsheet.’”                 Id.

       Here, as in Keita, the losses attributed to Sanya on the

Limnios spreadsheet reflected transactions captured on video, or

transactions     associated        with        credit     card        numbers        where

investigators did have video.            On the record at resentencing, we

conclude that the loss amount is established by a preponderance

of the evidence.            The court did not abuse its discretion in

imposing the sentence.

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      Next, we turn to the Anders challenge to Sanya’s sentence

for   the    access         device    fraud    and       aggravated      identity        theft

convictions.          First, counsel raises and immediately rejects the

question of whether a factual basis supported the guilty plea

because Sanya admitted the factual basis for his plea.                              Sanya’s

sentence    of    57        months    on   Count     1    was   within     the   properly

calculated    Sentencing         Guidelines        range.         The    sentence    of     24

months and 1 day imposed on Count 2 is mandated by the statute

and not within the court’s power to vary.                               See 18 U.S.C. §

1028A(b)     (prohibiting             courts       from     sentencing       individuals

convicted under this section to probation, imposing concurrent

sentences,       or     reducing       other       sentences       in    light      of    the

conviction under this section).

      Sanya agreed with the sentencing recommendation contained

in the PSR.      The sentence imposed by the court tracked the PSR’s

recommendation, except that instead of requiring that the 41

months of the sentence attributable to the underlying conviction

for   violating        18    U.S.C.    §   1029(a)(2)       run    concurrent       to    the

sentence imposed in No. 1:12-CR-00379-TDC-1, the court ordered

that it be run consecutively.

      The district court must adequately explain its sentence to

allow the appellate courts to engage in a meaningful review.

Gall, 552 U.S. at 51.                The district court’s explanation of the

sentence imposed was adequate.                 The court specifically explained

                                               9
why     it     is    imposing          a    consecutive       rather     than     concurrent

sentence.            The       court’s      reasoning        satisfied    the     procedural

requirement          that      a    sentencing       court    not    expressly     reject       a

policy articulated by Congress or the Sentencing Commission or

consider an improper basis when imposing a sentence.                              See United

States       v.     Moreland,         437     F.3d    424,     434     (4th     Cir.    2006).

Accordingly, it does not appear that the court committed any

error in imposing a 57-month term of imprisonment on Count 1 and

a 24 months and 1 day term of imprisonment on Count 2, to run

consecutive to the term on Count 1.

       The consecutive sentences were proper.                           Sentencing judges

“have discretion to select whether the sentences they impose

will run concurrently or consecutively with respect to other

sentences that they impose. . . .”                      Setser v. United States, 132

S. Ct. 1463, 1468 (2012).                     Further, the Guidelines state that

“[i]n        any    other          case    involving     an     undischarged       term       of

imprisonment,            the       sentence    for    the     instant    offense       may    be

imposed        to        run       concurrently,       partially        concurrently,         or

consecutively to the prior undischarged term of imprisonment.”

USSG    §     5G1.3(d).              The    Guidelines       provision    calling       for    a

required concurrent rather than consecutive sentences does not

govern here.             See id. § 5G1.3(b) (requiring that a sentence run

concurrent          to    the      undischarged      term     of    imprisonment       if     the

undischarged         sentence         “resulted      from     another    offense       that    is

                                                10
relevant conduct to the instant offense of conviction under the

provisions     of    subsections      (a)(1),       (a)(2),     or    (a)(3)     of

§ 1B1.3”).

     Sanya did not object when the PSR concluded that § 5G1.3(d)

rather than § 5G1.3(b) applied.              Further, “given the advisory

nature of the Sentencing Guidelines, a district court has no

obligation to impose a concurrent sentence, even if § 5G1.3(b)

applies.”     United States v. Nania, 724 F.3d 824, 830 (7th Cir.

2013).    We conclude there is no error in imposing the sentences

consecutively.

     Sanya’s Anders brief also suggests that the sentence be

reviewed to determine whether it suffers from vindictiveness for

successfully mounting his first appeal.              “Due process of law . .

.   requires that vindictiveness against a defendant for having

successfully attacked his first conviction must play no part in

the sentence he receives after a new trial.”                  North Carolina v.

Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds by

Alabama v. Smith, 490 U.S. 794 (1989).               “When a sentencing court

imposes a more severe sentence on remand, the reasons for the

court doing so must affirmatively appear.”                    United States v.

Williams, 444 F.3d 250, 254 (4th Cir. 2006) (internal citations

and quotations omitted).

     It     does    not   appear      that    the     sentence       imposed    was

vindictive.        Although   prior    to    his    first   appeal,    the     court

                                       11
sentenced Sanya to concurrent rather than consecutive terms of

imprisonment, on remand the court chose to impose consecutive

terms of imprisonment rather than concurrent terms.                              Sanya’s

total sentence,        however,    was     reduced       from    212   months    to   171

months and 1 day of imprisonment.                   And, as counsel notes, the

court    explicitly     refused    to     impose    a     sentence     that   would    in

effect    negate      Sanya’s     prior    appellate          victory.        Thus    the

sentence is not tainted with vindictiveness for succeeding on

his first appeal.

     In    accordance     with    Anders,      we    have       reviewed   the    entire

record    in   15-4574    and    have     found     no    meritorious      issues     for

appeal.    We therefore affirm Sanya’s conviction and sentence in

that appeal.       This court requires that Anders counsel inform

Sanya, in writing, of the right to petition the Supreme Court of

the United States for further review.                    If Sanya requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                        Counsel’s motion must

state that a copy thereof was served on Sanya.                         We also affirm

Sanya’s judgment in 15-4306.

     We dispense with oral argument because the facts and legal

contentions     are    adequately       presented        in   the   materials     before

this court and argument would not aid the decisional process.

                                                                                AFFIRMED

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