                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 27 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                      No. 13-50600

               Plaintiff – Appellee,           D.C. No. 2:12-cr-00623-MWF-1

          v.                                   MEMORANDUM *

TAYO OGUNBANKE,

               Defendant – Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                             Submitted March 5, 2015 **
                               Pasadena, California

Before: MURPHY, *** GOULD, and TALLMAN, Circuit Judges.



      Defendant-appellant, Tayo Ogunbanke, appeals the sentence imposed by

the district court following his conviction of one count of access device fraud, in


      *
       This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be provided by Ninth Circuit Rule
36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
violation of 18 U.S.C. § 1029. Exercising jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291, we affirm Ogunbanke’s sentence.

      1. Ogunbanke first asserts the district court erred in calculating his

advisory guidelines range. He argues the government failed to prove that a

substantial part of the fraudulent scheme in which he was involved was

committed from outside the United States and, thus, the district court erroneously

applied a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(B). We

review a district court’s interpretation of the Sentencing Guidelines de novo.

United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir. 2015). Findings of fact

are reviewed for clear error. Id.

      2. Because the Sentencing Guidelines do not define “substantial,” we look

to the dictionary for the plain meaning of the term. United States v. Flores, 729

F.3d 910, 914 (9th Cir. 2013). The definitions of “substantial” relevant to

§ 2B1.1(b)(10)(B) include: “an important material matter, thing, or part,”

Webster’s Third New International Dictionary 2280 (1993), and “an essential

part, point, or feature,” 17 Oxford English Dictionary 67 (2d ed. 1989). With

these definitions in mind, we conclude that application of the § 2B1.1(b)(10)(B)

enhancement to the calculation of Ogunbanke’s offense level is amply supported

by the district court’s unchallenged findings.

      3. Ogunbanke argues the district court erred by basing the

§ 2B1.1(b)(10)(B) enhancement on evidence obtained from a French investigation

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into the fraud scheme. The challenged evidence includes, inter alia, a wiretapped

conversation between Ogunbanke and his co-conspirator in France and

information obtained after Ogunbanke’s co-conspirators were arrested.

Ogunbanke’s fifth amendment challenge fails for two reasons. As Ogunbanke

himself admits, the district court did not rely on the wiretapped conversations

themselves. 1 Further, the evidence actually considered by the district court,

including information derived from the French investigation, has minimal indicia

of reliability. United States v. Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir.

2009) (per curiam) (“[A] district court may consider any relevant information,

provided that the information has sufficient indicia of reliability to support its

probable accuracy.” (internal quotation marks omitted)); United States v.

Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006) (reiterating that hearsay statements

can be considered at sentencing).

      4. The record details the fraud scheme. Ogunbanke forwarded stolen credit

card account numbers and corresponding identifying information to co-

conspirators who created counterfeit credit cards. He contacted the financial

institution associated with the counterfeit card, impersonated the putative


      1
        To the extent Ogunbanke’s challenge is grounded in the Fourth
Amendment, “fourth amendment principles do not apply to searches by foreign
authorities in their own countries, even if the targets of the search are American”
unless the United States has substantially participated in the investigation. United
States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987). Ogunbanke has not shown
that the United States participated in the French investigation.

                                         -3-
cardholder, and fraudulently advised the institution that the cardholder would be

traveling internationally. The counterfeit credit cards were then used by the co-

conspirators to complete fraudulent transactions. The district court, adopting the

Presentence Investigation Report, found that “the majority of the fraudulent

transactions occurr[ed] abroad in locations including France, Italy, Japan, the

Netherlands, Spain, and Thailand.” See United States v. Charlesworth, 217 F.3d

1155, 1160 (9th Cir. 2000) (“[A] sentencing court may rely only on an

unchallenged PSR to find that the facts underlying a sentence enhancement have

been established by a preponderance of the evidence.”). The international feature

of the scheme was an essential component of the crime because it permitted

Ogunbanke’s co-conspirators to engage in fraudulent transactions without

detection by law enforcement or the issuing financial institutions.

      5. Ogunbanke next argues the district court erroneously applied a

“variance of just three months” to ameliorate the sentencing consequences of the

government’s decision to prosecute him separately for an illegal reentry charge

when it should have varied by six months. Because Ogunbanke’s seventy-two-

month sentence was within a properly calculated advisory guidelines range, it did

not involve a variance. United States v. Moschella, 727 F.3d 888, 893 (9th Cir.

2013) (describing a variance as a sentence “above or below the properly

calculated final sentencing range”). Ogunbanke can only be arguing his sentence

is substantively unreasonable because the district court did not adequately

                                         -4-
consider the effect of the separate prosecutions. We review the substantive

reasonableness of a sentence for abuse of discretion. Gall v. United States, 552

U.S. 38, 51 (2007).

      6. A sentence is substantively reasonable if “the district court considered

the specific facts presented by [the] case and . . . its sentence was consistent with

its assessment of [those] facts.” United States v. Apodaca, 641 F.3d 1077, 1082

(9th Cir. 2011). Here, the district court carefully detailed its analysis of the

factors set out in 18 U.S.C. § 3553(a). The court stated it was indisputable that

the amount of the loss from the crime of conviction was greater than the amount

used to calculate Ogunbanke’s offense level, and noted Ogunbanke had a “lengthy

criminal history that is not reflected in the formality of the Guidelines.”

Accordingly, the district court expressed its view that a sentence at the harsher

end of the advisory guidelines range was appropriate. The court also expressly

stated it had considered the fact that Ogunbanke was prosecuted separately for the

immigration violation. Nothing in the record supports Ogunbanke’s assertion his

the sentence is greater than necessary to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, to

adequately deter criminal conduct, or to protect the public from further criminal

activity. Thus, he has failed to show his sentence is substantively unreasonable.

      7. Finally, Ogunbanke argues the district court failed to adequately explain

its decision to impose a term of supervised release and the term is improper

                                          -5-
because he will most likely be deported after his incarceration ends. This

argument fails under any standard of review.

      8. Application note 5 to U.S.S.G. § 5D1.1 instructs a court to “consider

imposing a term of supervised release on [a removable alien] if the court

determines it would provide an added measure of deterrence and protection based

on the facts and circumstances of [the] particular case.” We have previously

upheld the imposition of a term of supervised release on a removable alien when

the facts supported it. See, e.g., United States v. Valdavinos-Torres, 704 F.3d

679, 693 (9th Cir. 2012) (“[T]he district court below gave a specific and

particularized explanation that supervised release would provide an added

measure of deterrence and protection based on the facts of [defendant’s] case.”).

Here, the district court’s rationale for including the term of supervised release is

clear from the record. The court stated that Ogunbanke’s obligation to report to

the USPO is confined to those periods of time during which he is physically

present in the United States. While he is residing outside the United States, he

has no obligation to report to the USPO. In light of Ogunbanke’s history of

illegal reentry and the presence of his immediate family in the United States, the

added deterrence and protection to the community afforded by the term of

supervised release justifies its imposition.

      AFFIRMED.




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