13-3140
United States v. Agbodjan

                   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 TO 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 27th day of February, two thousand fifteen.

PRESENT:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges.
_____________________________________

United States of America,
                    Appellee,

              v.                                       13-3140-cr

Edmund Agbodjan,

                     Defendant-Appellant.

_____________________________________

FOR APPELLEE:                                          Gwendolyn E. Carroll, for Richard S.
                                                       Hartunian, United States Attorney for
                                                       the Northern District of New York,
                                                       Syracuse, NY.

FOR DEFENDANT-APPELLANT:                               Malvina Nathanson, New York, NY.
       Appeal from an order of the United States District Court for the Northern District of New

York (Hurd, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Edmund Agbodjan (“Agbodjan”), appeals a 96-month sentence imposed by the

district court following a plea of guilty to access device fraud and aggravated identity theft. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issue on appeal.

       We review de novo a district court’s legal application of the sentencing Guidelines.

United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). “A district court commits procedural

error where it fails to calculate the Guidelines range . . . , makes a mistake in its Guidelines

calculation or treats the Guidelines as mandatory.” United States v. Desnoyers, 708 F.3d 378,

385 (2d Cir. 2013) (alteration in original) (quoting United States v. Cavera, 550 F.3d 180, 190

(2d Cir. 2008) (en banc)). Agbodjan argues on appeal that his possession of 710 access devices

that he transported into Canada from the United States should be deemed a “foreign crime” and

thus the district court should not have figured the conduct into his offense level calculation. We

disagree.

       For the reasons set forth by the district court, we agree that Agbodjan’s possession of the

access devices in the United States prior to entering Canada precludes a finding that the

possession was a “foreign crime.” Possession of such devices is a crime in the United States. See

18 U.S.C. § 1029(a)(3). The district court properly, and within its discretion, considered the

possession relevant conduct in determining the offense level calculation. See U.S.S.G. §




                                                  2
1B1.3(a)(2) (relevant conduct includes acts that are part of the “same course of conduct or

common scheme or plan as the offense of conviction”).

       Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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