
USCA1 Opinion

	




          March 19, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ____________________          No. 92-1668                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                HENRY OLAWALE BALOGUN,                                Defendant, Appellant.                                 ____________________          No. 92-1825                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   EBENEZER ALUKO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                _____________________               Edward  C. Roy, Jr., with whom Roy  & Cook, was on brief for               ___________________            ___________          appellant Henry Olawale Balogun.               Francis J. Gillan III for appellant Ebenezer Aluko.               _____________________               Margaret E. Curran,  Assistant United States  Attorney, with               __________________          whom  Lincoln  C. Almond,  United  States  Attorney, and  Seymour                __________________                                  _______          Posner,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                    March 19, 1993                                 ____________________                    TORRUELLA,  Circuit Judge.   Appellants  Ebenezer Aluko                                _____________          and Henry Olawale Balogun pled  guilty to conspiracy, mail fraud,          and insurance  fraud in violation  of 18  U.S.C.    371,  1341-42          (1984)  and  42  U.S.C.    408(a)(7)(B)  (1991).    Specifically,          appellants procured  insurance  coverage on  vehicles  registered          under fictitious  names.  The conspiracy entailed one hundred and          twenty-four fraudulent  claims amounting  to $620,000.1   Balogun          and another co-defendant  initiated the scheme on April  1, 1989;          Aluko joined the conspiracy on or about October 6, 1990.                    The  district  court  sentenced  Aluko  to  twenty-four          months  in   prison2   and  Balogun   to  thirty-three   months.3          Appellants appeal their sentences.                    "We review  a trial  court's  determinations under  the          [United  States]  Sentencing  Guidelines only  for  clear error."          United States  v. Panet-Collazo,  960 F.2d  256,  262 (1st  Cir.)          _____________     _____________          (citing  United States v. Sklar,  920 F.2d 107,  110-11 (1st Cir.                   _____________    _____          1990)),  cert.  denied,  113 S.  Ct.  645  (1992).   However,  we                   _____________          interpret provisions of the relevant  guidelines de novo.  United                                                           _______   ______          States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).  Because we          ______    _______          find  no clear  error  in the  district  court's calculation,  we          affirm Balogun's  sentence.  However,  we find that  the district                                        ____________________          1  Although  the claims amounted to  $620,000, appellants' arrest          prevented the collection of $403,000.          2    The  judge also  imposed  a  three-year  term of  supervised          release, restitution of $16,750, and a $50 special assessment.          3  The judge  also imposed a three-year supervised  release term,          restitution  of $100,000 if the defendant was not deported, and a          $200 special assessment.                                         -3-          court  improperly interpreted  a  guideline  relevant to  Aluko's          sentence.    Thus, we  vacate that  sentence  and remand  for re-          sentencing consistent with this opinion.                    We address the appeals in turn.          Appellant Aluko          Appellant Aluko          _______________                    At   his  sentencing   hearing,  Aluko   contested  his          presentence  report's calculation  of  offense  level  under  the          United   States   Sentencing   Guidelines   ("U.S.S.G.").4     In          calculating the  total offense  level in the  presentence report,          the probation officer  based his calculation  on all one  hundred          and  twenty-four   fraudulent  claims   filed  as  part   of  the          conspiracy.   As these claims  amounted to $620,000,  he enhanced          Aluko's base  offense level  by ten  levels pursuant to  U.S.S.G.            2F1.1(b)(1)(K) (Nov. 1991) (ten level offense increase required          for losses  between $500,000  and $800,000).    In addition,  the          probation  officer concluded  that Aluko's  participation in  the          scheme involved  more than  minimal planning.   Thus, he  further          enhanced Aluko's offense level by two levels pursuant to U.S.S.G.            2F1.1(b)(2) (Nov. 1991).5  Finally, the probation officer  also          subtracted  two levels  for  acceptance of  responsibility.   The          district court adopted the presentence report calculation.                                        ____________________          4  Both parties  agree that the 1991 sentencing  guidelines apply          to this case.          5  Section 2F1.1(b)(2) provides:                      If the  offense involved . .  . more than                      minimal  planning .  .  . increase  by  2                      levels.                                         -4-                    At  sentencing, Aluko challenged the presentence report          on two  grounds, both of which he revives in this appeal.  First,          Aluko contends that the government established his involvement in          only ten of  the one hundred  and twenty-four fraudulent  claims,          and that  he can only be  held responsible for those  ten claims.          He  asserts that  the  rest of  the  claims were  actions of  co-          conspirators which were not  reasonably foreseeable to him.   See                                                                        ___          U.S.S.G.    1B1.3(a)(1),  Application  Note 1  (Nov.  1991)  (for          sentencing  purposes, defendant  is accountable  for "conduct  of          others  in  furtherance of  the  execution  of jointly-undertaken          criminal   activity  that  was   reasonably  foreseeable  by  the                               ___________________________________          defendant") (emphasis added).                    In  its  sentencing ruling,  the  district court  never          discussed whether Aluko's co-conspirators' additional one hundred          and  fourteen fraudulent  claims were  reasonably foreseeable  to          Aluko.  The court simply concluded that Aluko                      was a conspirator with two  other people.                      He   was   an  important   part   of  the                      conspiracy  regardless  of the  numerical                      figures  involved in claims  filed, or in                      amount of  money that he  received.   And                      so,  he's  responsible   for  the   whole                      conspiracy.  It's seldom that we find co-                      conspirators who know  all facets of  the                      operation.  They know they're involved in                      a conspiracy and they're involved  at one                      tier level or another and, therefore, are                      integral parts and necessary parts of the                      success of the whole conspiracy.                      (sentencing hearing transcript at 14).                    This language  suggests that once a  defendant plays an          integral  role in a  conspiracy, he is  liable for co-conspirator                                         -5-          acts  in  furtherance  of  the conspiracy,  regardless  of  their          foreseeability.   While  this  language  correctly describes  the          proper  standard for  a defendant's  criminal conviction  for co-                                               ___________________          conspirator acts, United States  v. Fusaro, 708 F.2d 17,  21 (1st                            _____________     ______          Cir.  1983),  it  does   not  correctly  describe  a  defendant's          responsibility  for   these  actions  for   sentencing  purposes.                                                __________________________          U.S.S.G.    1B1.3(a)(1),  Application  Note 1;  United  States v.                                                          ______________          O'Campo, 973 F.2d 1015, 1025-26 n.11 (1st Cir. 1992).          _______                    We  might  in some  circumstances  treat  a finding  of          foreseeability as inherent in  the nature of the conspiracy.   In          this   case,  however,   it  appears   that  the   judge  thought          foreseeability inherent  in all conspiracies.   This  is not  the                                      ___          law.                    In addition, some of the co-conspirator acts presumably          occurred before Aluko joined the conspiracy as he joined one year          after  it  began.   By definition,  acts  that occurred  before a          defendant enters  a conspiracy  cannot be foreseeable.   O'Campo,                                                                   _______          973 F.2d at 1026.                    Accordingly, we vacate Aluko's sentence and remand  for          a determination of which, if  any, of co-defendants' actions were          reasonably  foreseeable  to  Aluko,6  and  for  re-sentencing  in          accordance with that determination.                    Second, Aluko argues that he played a  minimal or minor          role in the conspiracy,  and thus deserved a downward  adjustment                                        ____________________          6  We note that this determination should also address  the issue          of  which co-conspirator conduct, if any, took place before Aluko          joined the conspiracy.                                         -6-          to his total  offense level pursuant  to U.S.S.G.   3B1.2(a)  and          (b)  (Nov. 1991).7    We  first  note  that  defendants  are  not          automatically entitled to  a downward adjustment, whatever  their          role  in the crime.   United States v.  Valencia-Lucena, 925 F.2d                                _____________     _______________          506,  514 (1st  Cir.  1991).   Indeed, the  record  in this  case          adequately supports the district court's denial of the reduction.          Aluko indicated that his  involvement in the conspiracy  began on          October 6, 1990.   He remained active in the  conspiracy until he          was  arrested one  year later.   He was  directly involved  in at          least  ten fraudulent  claims.   Ultimately, the  court concluded          that Aluko was an integral part of the conspiracy and granted him          no reduction.  We find no clear error in this determination.          Appellant Balogun          Appellant Balogun          _________________                    Before Balogun's sentencing, the government objected to          his  presentence report,  claiming that  his total  offense level          should  have  been  increased  two points  pursuant  to  U.S.S.G.            3B1.1(c)  (Nov.  1991).8   Specifically, the  government argued                                        ____________________          7  Section 3B1.2(a) provides:                      If   the   defendant   was    a   minimal                      participant  in  any  criminal  activity,                      decrease by 4 levels.             Section 3B1.2(b) provides:                      If the defendant  was a minor participant                      in  any criminal activity,  decrease by 2                      levels.           8  Section 3B1.1(c) provides:                      If  the  defendant   was  an   organizer,                      leader,  manager,  or  supervisor in  any                      criminal activity other than described in                                         -7-          that  Balogun was  an "organizer, leader,  or supervisor"  of the          conspiracy  for the  purposes of  that section.   The  sentencing          judge accepted the government's representations and increased the          total offense level from sixteen to eighteen.                    Balogun  offers  two  principal  arguments  against the          judge's calculation of his  sentence.  First, he argues  that the          district   court   impermissibly  relied   on   the  prosecutor's          statements  in  reaching  its   conclusion.    Balogun  does  not          challenge  the  facts  at   issue;  however,  he  challenges  the          application of   3B1.1(c) to these facts.                    Application Note 3 of U.S.S.G.   3B1.1 counsels that in          determining  whether  a defendant  is  an  organizer, leader,  or          supervisor  pursuant  to   3B1.1(c),  the  court should  consider          factors   including:     (1)  decision   making   authority;  (2)          participation in the offense; (3) recruitment of accomplices; (4)          claimed  right to a larger share of  the fruits of the crime; (5)          degree of planning or organizing; (6) nature of illegal activity;          and (7) degree of control over others.                    The  undisputed facts  in  the present  case show  that          Balogun  initiated the conspiracy with another co-conspirator; he          received significantly more money from the conspiracy than Aluko;          he used cars fraudulently registered to Aluko to stage accidents;          and he paid  Aluko for his cooperation in the scheme.  We find no          clear error in the  district court's conclusion that Balogun  fit          the role of an organizer, leader, or supervisor.                                        ____________________                      (a) or (b), increase by 2 levels.                                         -8-                    Second,  Balogun  argues that  the  sentence adjustment          resulted in impermissible double  counting because in addition to          the  increase for being an organizer,  supervisor, or leader, the          district court also accepted the presentence report's enhancement          of Balogun's sentence for more than minimal  planning pursuant to          U.S.S.G.   2F1.1(b)(2).                    In United States  v. Fuller, 897  F.2d 1217, 1222  (1st                       _____________     ______          Cir.  1990),  we reversed  an  enhancement  based on    3B1.1(c),          noting  our concern  that  such an  enhancement  would result  in          double  counting.  The sentencing  court in that  case based both          its   3B1.1(c)  and its    2F1.1(b)(2) enhancements on  one fact:          the quantity of marijuana involved.  See id.                                               ___ __                    Balogun argues that the sentencing judge considered the          elaborate  nature of the scheme  in applying the  increase for an          organizer, leader, or supervisor  even though that complexity was          already  accounted   for  in  the  more   than  minimal  planning          enhancement.   In support  of this contention,  Balogun notes the          following statements by the sentencing judge.                      . . . I'm  satisfied that Mr. Balogun and                      Mr. [Oyelele] were the organizers of this                      scheme.  They were the people who thought                      this matter up, maybe with help of others                      unknown, and  Aluko was  just one of  the                      people who was initiated into the scheme,                      to  be part of some facets of it.  So I'm                                                         ______                      satisfied that Balogun and [Oyelele] were                      _________                      organizers and leaders and supervisors of                      this matter. . . .                      This  was a fairly  elaborate scheme, one                      that required a lot of planning and a lot                      of organization, and  a lot of fraudulent                      documents.    And,  therefore,  I  think,                      under   the   circumstances,  the   total                                         -9-                      offense level should be 20. . . .                        (sentencing transcript at 9) (emphasis added).          As we  see  it, this  language  shows that  the court  based  his            3B1.1(c)  enhancement decision on  Balogun's initiation  of the          scheme and recruitment  of Aluko,  not on the  complexity of  the          scheme.   The judge's allusion  to the scheme's  elaborate nature          simply  provided  further   superfluous  justification  for   the          resulting   total  offense   level.     We   therefore  find   no          impermissible double counting.9                    We affirm Balogun's sentence in its entirety.                    Affirmed in part; reversed and remanded in part.                    _______________________________________________                                        ____________________          9   As an alternative  ground, we  note that as  Balogun did  not          clearly raise this issue  in the district court, he  is precluded          from raising it on appeal.  United States v. Ortiz, 966 F.2d 707,                                      _____________    _____          717 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993).                                 ____________                                         -10-
