                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

USA v. Ifeoluwa
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3066




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                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     __________

                                     No. 05-3066
                                     __________


                          UNITED STATES OF AMERICA,

                                          v.

  ODUMOSU E. IFEOLUWA, a/k/a DENNIS JONES, a/k/a MICHAEL BRANDON,
      a/k/a JON MALONE, a/k/a PEARLY WILLIS, a/k/a HENRY KELLY,

                                Odumosu E. Ifeoluma,
                                                   Appellant

                                     __________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 04-cr-00736)
                      District Judge: Honorable John R. Padova
                                     __________


                     Submitted Under Third Circuit LAR 34.1(a),
                                  April 24, 2007


      Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.




      *
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                                (Filed September 6, 2007 )

                                        __________

                               OPINION OF THE COURT
                                     __________


FUENTES, Circuit Judge.

       Odumosu Ifeoluwa pleaded guilty to four counts of bank fraud in violation of 18

U.S.C. § 1344 and was sentenced by the District Court to 75 months in prison, to be

followed by 5 years of supervised release. In addition, the District Court ordered

Ifeoluwa to pay $417,288.59 in restitution. In this pro se appeal, Ifeoluwa argues that the

District Court improperly imposed a sentence above the range of 51 to 63 months of

imprisonment recommended by the United States Sentencing Guidelines, and declined to

grant him sentencing credit for time spent in state and immigration custody. For the

reasons that follow, we will affirm the sentence.1

                                             I.

       Between June 2000 and May 2003, Ifeoluwa participated in a complex bank fraud

scheme, in which he and several co-conspirators deposited stolen and altered checks into




       1
         We have jurisdiction over sentencing appeals pursuant 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We review the ultimate sentence imposed by a district court for
reasonableness. United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). We review
factual findings that underlie the sentence for clear error, United States v. Grier, 475 F.3d
556, 570 (3d Cir. 2006) (en banc), and exercise plenary review over a district court’s legal
determinations. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006).

                                             2
bank accounts and then withdrew the funds by purchasing and cashing postal money

orders. On November 17, 2004, Ifeoluwa was indicted in the United States District Court

for the Eastern District of Pennsylvania on four counts of bank fraud, in violation of 18

U.S.C. § 1344. Each count carried a statutory maximum of 30 years of imprisonment and

a $1 million fine.2

       The indictment, to which Ifeoluwa pleaded guilty without a written plea

agreement, charged him with the following conduct:

•      Count I: PNC Bank Scheme. Count I involved the following four fraudulent
       deposits totaling approximately $373,171:

       (1) On February 19, 2002, a co-conspirator fraudulently opened an account
       at PNC Bank, into which he deposited a stolen check in the amount of
       $77,306. On March 11, 2002, Ifeoluwa purchased and cashed six postal
       money orders paid from the account in the amount of $2,925 and, on March
       20, 2002, purchased and cashed a seventh postal money order in the amount
       of $700.

       (2) On March 5, 2002, a co-conspirator fraudulently opened a second
       account at PNC Bank, into which he deposited a stolen check in the amount
       of $102,981.25. Between March 15 and 19, 2002, Ifeoluwa purchased and
       cashed fifteen postal money orders paid from the account totaling $9,250.
       On March 20, 2002, he purchased and cashed four additional postal money
       orders totaling $2,800.

       (3) On May 10, 2002, Ifeoluwa fraudulently opened a third account at PNC
       Bank, into which he deposited a stolen and altered check in the amount of
       $98,280.




       2
         Because this appeal concerns, in part, the District Court’s loss calculations, we
recount in some detail the complex financial transactions that served as the basis of both
the indictment and the District Court’s sentencing determination.

                                             3
       (4) On November 4, 2002, a co-conspirator fraudulently opened a fourth account at
       PNC Bank, into which he deposited a stolen check in the amount of $94,604. On
       November 8 and 9, 2002, Ifeoluwa purchased and cashed six postal money orders
       paid from the account totaling $3,600.

•      Count II: Commonwealth Bank Scheme. On March 5, 2002, Ifeoluwa fraudulently
       opened an account at Commonwealth Bank, into which he deposited a stolen
       check in the amount of $60,000.

•      Count III: Commerce Bank Scheme. On April 24, 2002, Ifeoluwa fraudulently
       opened an account at Commerce Bank, into which he deposited a stolen check in
       the amount of $35,220. Between July 20 and 23, 2002, Ifeoluwa purchased and
       cashed 14 postal money orders paid from the account totaling $7,280.

•      Count IV: Progress Bank Scheme. On May 15, 2003, Ifeoluwa fraudulently
       opened an account at Progress Bank, into which he deposited a stolen check in the
       amount of $30,109.

       At his sentencing hearing on June 14, 2005, the District Court adopted the facts

and conclusions set forth in the Presentence Investigation Report (“PSR”). Using the

2002 edition of the Guidelines, the PSR calculated the total offense level as follows: a

base offense level of 6 pursuant to § 2B1.1; an additional 14-level increase pursuant to §

2B1.1(B)(1)(H), based on roughly $498,500 in losses to the victims;3 and a 3-level




       3
         Application Note 2 to § 2B1.1 provides that “loss is the greater of actual loss or
intended loss.” U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.2. “Actual loss” is
defined as “the reasonably foreseeable pecuniary harm that resulted from the offense.”
Id. “Intended loss” is defined as “pecuniary harm that was intended to result from the
offense” and “includes intended pecuniary harm that would have been impossible or
unlikely to occur.” Id. The PSR’s calculation was based on “actual loss of $373,171.61
from the PNC scheme, the intended loss of $60,000 from the Commonwealth scheme, the
intended loss of $35,220 from the Commerce scheme, and the actual loss of $30,109 from
the Progress scheme.” (PSR at ¶ 34 n.5.) The PSR noted that this amount was greater
than the $417,288.59 recommended as restitution. (Id.)

                                             4
reduction for acceptance of responsibility pursuant to § 3E1.1(a) and (b). The total

offense level was therefore 17 which, when combined with a criminal history category of

VI, resulted in a recommended Guidelines range of 51 to 63 months of imprisonment.4

       The only objection to the District Court’s Guidelines calculation came from the

government, which argued that the 14-level increase, based on $498,500 in total losses to

the victims, was inappropriate. Rather, the government asserted, Ifeoluwa’s total offense

level should reflect an additional $555,766 in losses resulting from the following conduct

not charged in the indictment:

       (1) On October 2, 2001, Ifeoluwa fraudulently opened a Commerce Bank account
       into which he deposited a stolen check in the amount of $37,000. On November
       15, 2001, Ifeoluwa fraudulently opened a mutual fund account into which he
       deposited a stolen check in the amount of $78,174. Ifeoluwa ultimately depleted
       the total amount of $115,174 deposited into the two accounts.

       (2) Between January 2002 and July 2002, Ifeoluwa’s co-conspirators deposited
       $440,592 in stolen checks into two of the PNC bank accounts identified in the
       indictment—this amount was not included in the indictment.

With respect to the second set of conduct, the government was only able to proffer

evidence that Ifeoluwa depleted $6,475 from these two accounts. It nevertheless argued


       4
         Ifeoluwa’s criminal history category reflected the following 5 prior adult criminal
convictions: (1) a September 1988 state conviction for 11 counts of forgery and receipt of
stolen property; (2) a November 1988 state conviction for theft and forgery; (3) a
November 1990 state conviction for theft by deception; (4) a December 1990 federal
conviction for misuse of a social security number; and (5) a March 2002 state conviction
for forgery. It also reflected the fact that Ifeoluwa committed the instant offense while on
probation with the Philadelphia Adult Probation and Parole Department. An additional 6
adult criminal convictions identified in the PSR were not counted in determining
Ifeoluwa’s criminal history category.

                                             5
that the entire $440,592 loss was a foreseeable consequence of the conduct to which

Ifeoluwa pleaded guilty.5 According to the government’s calculation, therefore, Ifeoluwa

was responsible for more than $1 million in losses (the 498,500 charged in the indictment

plus the additional $555,766 in losses identified by the government), justifying a 16-level

increase pursuant to § 2B1.1(B)(1)(I). The District Court rejected the government’s

calculation, ruling that there was insufficient basis in the record to attribute the additional

losses to Ifeoluwa for purposes of § 2B1.1. The District Court did state, however, that it

would consider the losses in applying the sentencing factors set forth in 18 U.S.C. §

3553(a).

       Turning to § 3553(a), the District Court made several findings that, in its view,

warranted a sentence above the recommended Guidelines range. With respect to the

amount of loss, the District Court stated that “the sentencing guideline calculations do not

reflect what this Court finds with respect to the extent of the money that he was involved

in through this criminal scheme. And that is, at least, another hundred and twenty-two

thousand dollars. And that does expand the nature and the circumstances of the offense

under 3553(a).” 6 (Appellant’s Appx. II at 33.).

       5
        Application Note 2 to § 2B1.2 defines “reasonably foreseeable pecuniary harm”
as “pecuniary harm that the defendant knew or, under the circumstances, reasonably
should have known, was a potential result of the offense.” U.S. Sentencing Guidelines
Manual § 2B1.1 cmt. n.2.
       6
       The $122,000 referred to the unindicted conduct identified by the
government—the $115,174 Ifeoluwa withdrew from the two accounts he opened in
October and November 2001, plus the $6,475 that the government established Ifeoluwa

                                               6
       The District Court further stated that Ifeoluwa’s criminal history “indicates to this

Court an appalling lack of regard that this defendant has for the law in this country as

well as the criminal justice system.” (Id.) The District Court elaborated:

       He graduated from sentencing—sentencing of probation to small periods of
       imprisonment to large periods of imprisonment . . . as high as three years in
       prison. And it—it didn’t make any difference with respect to this
       defendant, he continued his recidivist conduct.
       ...
       He has eleven prior adult criminal convictions. The Court gets the
       impression that time and time again, this defendant stood before a judicial
       officer and said, I’m gonna amend my ways, which is, essentially, what he’s
       saying to this Court.

(Id. at 33-34.) Finally, the District Court explained:

       This most recent scheme that forms the basis of this indictment is as big a
       scale as I can think, its complicated, it’s the type of scheme that’s put
       together and that’s engaged in by the most professional of criminals.

       Identity theft, fraudulent conduct in opening bank accounts, obtaining
       money orders under varying dishonest circumstances to engage in funding
       the ill-gotten gain. Being involved in a conspiracy with others engaging in
       similar schemes.

       Hard-core white-collar criminal conduct, which deserves no break, when
       the Court is sentencing a man, who comes from a wonderful family,
       educated, good citizens and has had the opportunity to raise a family on his
       own in a decent, honest way and instead, engages in criminal conduct.

       The conduct in this case—as far as I’m concerned—requires as a matter of
       basic necessity, a term that exceeds the range that the sentencing guidelines
       recommends in this case.

(Id. at 40-41.) Accordingly, the District Court sentenced Ifeoluwa to a term of 75 months



depleted from the two PNC accounts.

                                              7
of imprisonment—12 months above the top of the recommended Guidelines range.

                                            II.

       Ifeoluwa argues that his sentence was unreasonable because the amount of loss

and his criminal history were already incorporated into the District Court’s Guidelines

calculation and, therefore, should not have been used to impose a sentence above the

recommended range. We are not persuaded.

       A criminal defendant has the burden of establishing that his or her sentence is

unreasonable. Cooper, 437 F.3d at 330. In determining an appropriate sentence, the

sentencing court must consider the factors set forth in 18 U.S.C. § 3553(a), including the

recommended Guidelines range.7 Cooper, 437 F.3d at 329. We must determine whether

those factors were reasonably applied to the circumstances of the case. Id. at 330. In


       7
           The relevant factors are:

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed—
       (A) to reflect the seriousness of the offense, to promote respect for the law,
       and to provide just punishment for the offense;
       (B) to afford adequate deterrence to criminal conduct;
       (C) to protect the public from further crimes of the defendant; and
       (D) to provide the defendant with needed educational or vocational training,
       medical care, or other correctional treatment in the most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range established for . . . the
       applicable category of offense committed by the applicable category of
       defendant as set forth in the guidelines . . . .

18 U.S.C. § 3553(a).

                                             8
doing so, we apply a deferential standard of review. Id. “A sentence that falls within the

guidelines range is more likely to be reasonable than one outside the guideline range.” Id.

at 332. A sentence outside of the recommended range is not, however, presumptively

unreasonable. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006).

       In this case, the record unambiguously shows that the District Court fully

considered the factors set forth in § 3553(a). The fact that in doing so, the District Court

took into account the losses sustained by the victims, as well as Ifeoluwa’s recidivist

tendencies, in no way rendered its application of the § 3553 factors unreasonable. See

United States v. King, 454 F.3d 187, 195 (3d Cir. 2006) (noting that the factors set forth

in § 3553(a) “overlap to some degree with the bases for potential Guidelines departures”);

United States v. Wallace, 458 F.3d 606, 613 (7th Cir. 2006) (stating that “if Booker

means anything at all, it must mean that the court was permitted to give further weight to

a factor covered by a specific guidelines adjustment”) (internal quotation marks omitted).

Rather, both issues were, as the District Court recognized, clearly relevant to “the nature

and circumstances of the offense and the history and characteristics of the defendant,”

“the seriousness of the offense,”and the need for “adequate deterrence.” See 18 U.S.C. §

3553(a).

       Moreover, these two factors—the losses sustained by the victims and Ifeoluwa’s

criminal history—were not the only ones that the District Court determined justified a

sentence above the recommended Guidelines range. Rather, it also considered the



                                              9
complexity of the scheme, as well as the fact that Ifeoluwa was well-educated and had

opportunities to pursue legitimate means of supporting himself and his family.

Accordingly, we conclude that Ifeoluwa fails to satisfy his burden of establishing that the

sentence imposed by the District Court was unreasonable.

                                               III.

       The other issue Ifeoluwa raises on appeal is whether the District Court properly

denied his request for sentencing credit for 6 months spent in Bucks County Correctional

Facility from July 2003 to February 2004, and 4 months spent in the custody of

Immigration and Customs Enforcement (“ICE”) at York County Prison from February

2004 until his arrest on federal charges in June 2004.8 We conclude that the denial was

entirely proper.

       18 U.S.C. § 3585(b) provides:

       A defendant shall be given credit towards the service of a term of
       imprisonment for any time he has spent in official detention prior to the date
       the sentence commences—
       (1) as a result of the offense for which the sentence was imposed; or
       (2) as a result of any other charge for which the defendant was arrested after
       the commission of the offense for which the sentence was imposed;
       that has not been credited against another sentence.

18 U.S.C. § 3585(b). In United States v. Wilson, the Supreme Court rejected “the

argument that § 3585(b) authorizes a district court to award credit at sentencing.” 503

U.S. 329, 332 (1992); United States v. Brann, 990 F.2d 98, 103-04 (3d Cir. 1993) (noting


       8
           Ifeoluwa is a citizen of Nigeria.

                                               10
that “district courts do not have jurisdiction to grant credit for prior custody”). Rather,

the power to grant sentencing credit under § 3585(b) is vested with the Attorney General

of the United States, which has delegated that authority to the Bureau of Prisons. Wilson,

503 U.S. at 334-35. Thus, the District Court correctly determined that it could not grant

Ifeoluwa credit for time served in either state or immigration custody.9

                                             IV.

       In sum, we conclude that (1) the above-Guidelines range sentence imposed by the

District Court was reasonable and (2) the District Court properly determined that it lacked

the authority to grant Ifeoluwa credit for time spent in state and immigration custody.

Accordingly, we will affirm the sentence imposed by the District Court.




       9
          The District Court did make a factual finding, based on the stipulation of the
parties, that the state detention “resulted from exactly the same set of facts” underlying
Ifeoluwa’s federal conviction and therefore “should result in the credit.” (Appellant’s
Appx. II at 29.) With respect to the time spent in immigration custody, the District Court
concluded that the record was insufficient to make any factual findings on the issue.
Indeed, the only information before the District Court was that upon release from state
custody in February 2004, Ifeoluwa was transferred by ICE to York County Prison
pursuant to a final order of removal. (Id.) The record does not indicate when the order of
removal was issued or the circumstances of Ifeoluwa’s transfer to York County Prison.

                                              11
