11-727-cr
United States v. Ojemen

                           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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 21st day of March, two thousand twelve.
PRESENT: RALPH K. WINTER,
         REENA RAGGI,
                    Circuit Judges,
         JED S. RAKOFF,
                    District Judge.*
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UNITED STATES OF AMERICA,
                                 Appellee,
                          v.                                             No. 11-727-cr
GEORGE OJEMEN,
                                 Defendant-Appellant.
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FOR APPELLANT:                   Robert J. Boyle, Esq., Brooklyn, New York.
FOR APPELLEE:                    Michael D. Lockard, Justin S. Weddle, 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 (Alvin K. Hellerstein, Judge).

          *
      Judge Jed S. Rakoff of the United States District Court for the Southern District of
New York, sitting by designation.

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

DECREED that the judgment entered on February 8, 2011, is AFFIRMED.

       Defendant George Ojemen, who was convicted after a guilty plea to access device,

mail, and bank fraud, see 18 U.S.C. §§ 1029(a)(5), 1341, 1344, as well as multiple counts of

identity theft, see id. §§ 1028(a)(7), 1028A, appeals his 65-month term of imprisonment as

procedurally unreasonable.1 Specifically, Ojemen contends that the district court erred in

calculating his Sentencing Guidelines range to include enhancements for abuse of trust or use

of a special skill, see U.S.S.G. § 3B1.3, and use of sophisticated means, see

id. § 2B1.1(b)(9)(C). See Gall v. United States, 552 U.S. 38, 51 (2007) (identifying improper

calculation of Guidelines range as procedural error); accord United States v. Savoca, 596

F.3d 154, 158 (2d Cir. 2010). In reviewing the challenged sentence “under a ‘deferential

abuse-of-discretion standard,’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)

(en banc) (quoting Gall v. United States, 552 U.S. at 41), we assume the parties’ familiarity

with the facts and the record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

1.     Abuse of Trust or Use of Special Skill

       Because Ojemen’s challenge to the U.S.S.G. § 3B1.3 enhancement is predominantly

factual, our standard of review is clear error. See United States v. Gotti, 459 F.3d 296, 349



       1
        Ojemen committed the crimes of conviction while on supervised release for a 2006
conviction, also in the Southern District of New York, for fraud in connection with and
possession of access devices. See 18 U.S.C. §§ 371, 1028(a)(7), 1029(a)(3).

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(2d Cir. 2006); United States v. Thorn, 446 F.3d 378, 388 (2d Cir. 2006). We identify no

such clear error here. An abuse of trust enhancement is warranted if a defendant “abused a

position of public or private trust . . . in a manner that significantly facilitated the commission

or concealment of the offense.” U.S.S.G. § 3B1.3; see United States v. Roberts, 660 F.3d

149, 164 (2d Cir. 2011). A position of trust is one characterized by professional or

managerial discretion. See United States v. Cusack, 229 F.3d 344, 349 (2d Cir. 2000).

While such discretion must be entrusted to the defendant by a victim, the victim whose trust

the defendant abused may be “primary” or “secondary.” Id. (citing United States v. Barrett,

178 F.3d 643, 647 (2d Cir. 1999)); accord United States v. Roberts, 660 F.3d at 164.

       Here, as in Roberts and Cusack, the district court correctly identified Ojemen’s

employer, Veritas, as a secondary victim of frauds with other primary victims. See United

States v. Roberts, 660 F.3d at 164; United States v. Cusack, 229 F.3d at 349. By

misappropriating personal and financial information about his non-profit employer’s donors,

Ojemen not only abused the trust conferred on him by Veritas, but also cast that non-profit

organization in an unfavorable light with possible adverse consequences for its operations.

See United States v. Roberts, 660 F.3d at 164–65; United States v. Cusack, 229 F.3d at 349.

Thus, application of the enhancement was proper without regard to Ojemen’s argument that

he possessed no discretionary authority with regard to the primary victims.

       We further identify no clear error in the district court’s alternative finding that Ojemen

used a special skill in a manner that significantly facilitated his commission or concealment

of the offenses. See U.S.S.G. § 3B1.3. Application Note Four to U.S.S.G. § 3B1.3 defines

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“special skill” as “a skill not possessed by members of the general public and usually

requiring substantial education, training or licensing.” The district court reasonably found

that Ojemen, who served as Veritas’s controller, possessed a financial sophistication beyond

that of the general public, which he used to facilitate his production of the myriad forged and

fraudulent financial and tax documents necessary to his criminal scheme. See United States

v. Downing, 297 F.3d 52, 65 (2d Cir. 2002) (finding no error in application of special skill

enhancement where defendants used accounting training for purpose of producing fraudulent

audit reports).

       Accordingly, we identify no procedural error in the use of a U.S.S.G § 3B1.3

enhancement to calculate Ojemen’s Guidelines range.

2.     Sophisticated Means

       We reach the same conclusion with respect to application of a U.S.S.G.

§ 2B1.1(b)(9)(C) enhancement, even on de novo review “giving due deference to the district

court’s Guidelines application.” United States v. Lewis, 93 F.3d 1075, 1080 (2d Cir. 1996).2

Application Note Eight to U.S.S.G. § 2B1.1 defines sophisticated means as “especially

complex or especially intricate offense conduct pertaining to the execution or concealment

of an offense.” While Ojemen contends that he engaged only in garden variety fraud by



       2
         The government urges us to review application of the sophisticated means
enhancement only for clear error, see United States v. Gotti, 459 F.3d at 349, and thus, to
overrule Lewis’s instruction for de novo review. See United States v. Lewis, 93 F.3d at
1079–80. Because we identify no error even under the higher standard, we need not address
the matter further.

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filling out various forms inaccurately, we have held that even where “each step in [a] scheme

was not elaborate,” a scheme as a whole may be sophisticated where “all the steps were

linked together . . . [to] exploit different vulnerabilities in different systems in a coordinated

way.” United States v. Jackson, 346 F.3d 22, 25 (2d Cir. 2003), vacated on other grounds

sub. nom. Lauersen v. United States, 543 U.S. 1097 (2005). That is this case.

       Ojemen’s scheme involved, inter alia, the production to various government entities

and bank officials of forged paystubs, W-2 forms, and income tax returns, in order to obtain

a contract to purchase and a mortgage for low-income housing for which he was not eligible.

Ojemen then produced further fraudulent documents to conceal his criminal activities from

his supervising probation officer. We easily conclude that this complex web of fraud

warranted a U.S.S.G. § 2B1.1(b)(9)(C) enhancement. See United States v. Amico, 416 F.3d

163, 169 (2d Cir. 2005) (affirming application of sophisticated means enhancement under

former U.S.S.G. § 2F1.1(b)(6)(C) where defendant employed multi-step process to prevent

detection of mortgage fraud scheme).

3.     Conclusion

       Having identified no merit in Ojemen’s procedural challenge to the reasonableness

of his 65-month prison sentence, the judgment of conviction is AFFIRMED.

                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, Clerk of Court




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