US v. Okechukwo Otuya

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:10-cr-00596-DKC-3. [999133186]. [12-4096]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4096

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OKECHUKWO EBO OTUYA, a/k/a Oke, a/k/a Waffi,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00596-DKC-3)

Argued:

May 16, 2013

Decided:

June 19, 2013

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by published opinion.
Judge Wilkinson wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.

ARGUED: Marta K. Kahn, Baltimore, Maryland, for Appellant.
Robert K. Hur, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United
States
Attorney,
Baltimore,
Maryland;
Jonathan
Lenzner,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.

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WILKINSON, Circuit Judge:
Okechukwo

Ebo

Otuya

was

convicted

of

one

count

of

conspiracy to commit bank fraud, two counts of substantive bank
fraud, and one count of aggravated identity theft for his role
in

a

scheme

that

defrauded

thousands of dollars.

Bank

of

America

of

hundreds

of

He appeals his convictions and resulting

96-month prison sentence on a variety of grounds.

Finding his

contentions to be without merit, we affirm.

I.
A.
In

late

2007,

Otuya

and

several

coconspirators

began

operating an elaborate scheme to defraud Bank of America through
the

use

steps.

of

stolen

checks.

The

scheme

involved

three

basic

First, Otuya and his confederates would drive around

affluent Maryland residential neighborhoods, stealing mail out
of roadside mailboxes and placing it in large trash bags.
conspirators

would

then

comb

through

the

purloined

mail

The
in

search of credit card convenience checks, which are instruments
that are processed as charges to an account holder’s credit card
account (as opposed to a checking account).
The second part of the scheme involved paying local college
students in exchange for access to their bank account and ATM
cards,

which

the

conspirators

would
2

then

use

to

process

the

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stolen checks.

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For example, one college student named Brandon

Simmons sold his ATM card, PIN number, social security number,
and a signed check to the conspirators in early 2008 for $400.
Third, Otuya and his confederates would deposit the stolen
convenience

checks

into

the

purchased

student

accounts

and

withdraw the corresponding funds before Bank of America could
determine that the checks were not authorized.

Many of these

deposits and withdrawals were made by “runners,” or middle men
(usually other college students) whom the conspirators paid to
actually
America

deposit
branch

own exposure.
deposited

and

locations,

the

thereby

checks

at

lessening

various
the

Bank

of

conspirators’

But on at least two occasions Otuya personally

stolen

particular,

withdraw

checks

Otuya

used

into

the

Simmons’s

student

bank

accounts.

account

In

information

to

deposit two checks worth $9,400 and $6,200 in October 2008.
The government indicted Otuya and four co-defendants for
the foregoing activity in September 2010.
defendants

pleaded

guilty

separate jury trial.

and

the

Three of Otuya’s co-

fourth

was

convicted

in

a

The indictment contained four counts with

respect to Otuya: one count of conspiracy to commit bank fraud,
in violation of 18 U.S.C. § 1349; two counts of bank fraud, in
violation
identity
conspiracy

of

18

theft,
count

U.S.C.
in
was

§

1344;

violation
based

and

of

on
3

18

one

count

U.S.C.

Otuya’s

§

of

aggravated

1028A.

participation

The
in

the

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overarching scheme to steal and process unauthorized credit card
convenience checks in the student accounts.

The substantive

bank fraud and aggravated identity theft counts were based on
Otuya’s individual conduct in depositing stolen checks into the
Bank of America account belonging to Simmons.
B.
At

trial,

the

government

began

its

case

by

presenting

testimony from three “runners” who deposited and withdrew stolen
checks for Otuya -- Rebecca Elias, Makeda Tefera, and Tezeta
Tesfaye.

Elias

explained,

for

example,

how

Otuya

and

other

conspirators would drop her off at different Bank of America
branch

locations

and

pay

her

to

either

deposit

a

fraudulent

check into one of the student accounts or withdraw funds from
such an account.

Elias testified further that Otuya personally

handed her fraudulent checks for deposit on several occasions
and that after making withdrawals, she would sometimes hand the
funds directly to Otuya upon returning to the car.

The three

runners also visually identified Otuya in Bank of America video
footage introduced by the government as the person who deposited
a forged check into the account belonging to Brandon Simmons.
Testimony
habits.

Elias

was

also

explained,

adduced
for

regarding

instance,

how

bottles of liquor in the VIP areas of clubs.

Otuya’s
Otuya

spending
would

buy

Tefera observed

that Otuya drove an Audi -- even though, as Elias pointed out,
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Otuya was not known to have a full-time job.
Maryland

realtor

testified

that

Otuya

and

In addition, a

his

roommate

paid

$14,000 up front to rent a house for six months.
On May 16, 2011, the jury returned a verdict convicting
Otuya on all four counts.

During sentencing, the district court

began its guidelines range calculation by noting that Otuya’s
base

offense

level

was

seven.

It

enhancements relevant to this appeal.
a

twelve-level

enhancement

under

then

considered

three

First, the court applied
U.S.S.G.

§ 2B1.1(b)(1)(G)

because it found that the intended amount of loss from the fraud
scheme attributable to Otuya exceeded $200,000.

Second, the

court

to

applied

a

§ 2B1.1(b)(2)(B)
victims.

four-level
because

the

enhancement
offense

pursuant

involved

fifty

U.S.S.G.
or

more

Finally, the court applied a three-level enhancement

under U.S.S.G. § 3B1.1(b) on the ground that Otuya was a manager
or supervisor in an offense involving five or more participants.
In view of these enhancements, the court calculated Otuya’s
total offense level as 26, which, when cross-referenced against
Otuya’s criminal history category, produced a guidelines range
of 63 to 78 months for the bank fraud conspiracy and substantive
bank fraud counts.

After evaluating the 18 U.S.C. § 3553(a)

sentencing factors, the court selected a within-guidelines range
of 72 months for these counts, to run concurrently.
also

imposed

a

consecutive

sentence
5

of

24

months

The court
for

the

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aggravated identity theft count, yielding a total sentence of
96-months.
This appeal ensued.

II.
A.
Prior to trial, the government moved to admit evidence that
was discovered in a search of a backpack belonging to Otuya upon
his arrest.

The government filed its motion pursuant to Federal

Rule of Evidence 404(b)(2), which requires pretrial notice of a
prosecutor’s intent to introduce evidence of other bad acts.
Specifically, the government sought to introduce evidence
from the backpack that included: a printout of a Bank of America
account profile belonging to a man named Frank Hawkins; a debit
card and Tennessee identification card belonging to another Bank
of America customer; a laptop computer with images of checks and
credit reports belonging to other individuals; and four cell
phones

that

contained

the

names

of

coconspirators

in

their

contact lists and text messages with bank account information.
The government contended that although this evidence related to
a modified version of the fraud (which involved buying account
information from a Bank of America insider rather than using
stolen

checks),

intrinsic

to

the

the

evidence

charged

was

activity.
6

admissible
In

the

because

it

was

alternative,

the

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government argued that the evidence was admissible to prove noncharacter purposes such as modus operandi and knowledge.
Over Otuya’s opposition, the district court decided at a
pretrial hearing that it would admit the evidence.

In doing so,

the court explained its initial view that the evidence arose out
of the “same series of transactions as the charged offenses” and
related to an ongoing conspiracy with the “same general core of
coconspirators,”
crimes.

such

that

it

was

intrinsic

to

the

charged

The court left open the possibility of revisiting the

issue at trial, however, stating that “if at any time I conclude
I’m hearing things differently . . . I’ll let everyone know, and
we’ll have [further] discussion at that point.”
Later, when the government sought to introduce the evidence
at trial, Otuya renewed his objection.

The court stood by its

earlier decision and admitted the evidence on the grounds that
it was intrinsic to the charged acts and, alternatively, that it
was permissible under Rule 404(b) because the evidence helped
establish

a

common

scheme,

absence

of

mistake,

and

Otuya’s

identity in the Bank of America video footage.
The government then offered witnesses to provide context
for

the

backpack

evidence.

Most

notably,

a

former

Bank

of

America teller named Malia Forrester testified that she provided
customers’ account information to the conspirators in exchange
for payment in 2010.

One of the account profiles that she sold
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belonged to Frank Hawkins -- the same customer whose information
was found inside Otuya’s backpack.
James

Hawkins,

testified

that

And Frank Hawkins’s son,

fraudulent

checks

were

indeed

drawn on his father’s account in July 2010.
B.
Otuya argues at the outset that his conviction should be
reversed because the district court improperly admitted evidence
found in his backpack under Federal Rule of Evidence 404(b).
That rule excludes “[e]vidence of a crime, wrong, or other act”
if it is offered to “prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with the character.”
be

admissible

in

two

However, evidence of another bad act may
situations

relevant

here.

First,

the

evidence may be introduced if it concerns acts “intrinsic to the
alleged crime” because evidence of such acts “do[es] not fall
under Rule 404(b)’s limitations” to begin with.
v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).

United States

Second, even if the

evidence involves extrinsic acts, it may be admitted for a noncharacter purpose such as to prove identity.
404(b)(2).

See Fed. R. Evid.

For the reasons below, we conclude that the district

court did not abuse its discretion in admitting the evidence
from Otuya’s backpack under both of these grounds.

See United

States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002) (reviewing
evidentiary rulings for abuse of discretion).
8

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1.
First,

the

district

court

reasonably

concluded

that

backpack evidence was intrinsic to the charged offenses.

the
Our

cases have held that evidence of other bad acts is intrinsic if,
among other things, it involves the same “series of transactions
as the charged offense,” United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994), which is to say that “both acts are part of
a

single

criminal

episode,”

Chin,

83

F.3d

at

88

(internal

quotation marks omitted).
Here, the trial court was confronted with abundant evidence
showing that the 2008-2009 and the 2010 fraudulent activity were
really components of the same ongoing criminal episode.
sets

of

acts

involved

the

same

victim

(Bank

of

Both

America),

defrauded under the same basic scheme (depositing unauthorized
checks into student checking accounts using the students’ ATM
cards),
phones

by

the

found

in

same

conspirators.

Otuya’s

backpack

Indeed,
in

2010

one

of

contained

the

cell

27

text

messages from an individual named “Tai,” who was implicated as a
runner in the 2009 activity.

Several of these messages were

suggestive of the same ongoing fraud: one message contained a
bank account number, PIN, and social security number; two other
messages stated “Who has the plastic?” and “Collect the card
from him tonite.”

9

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In light of these facts, the court’s determination that the
evidence in Otuya’s backpack arose out of the same series of
transactions

and

involved

the

same

criminal

episode

as

the

charged fraud was hardly an abuse of discretion.
2.
Even if the backpack evidence was somehow found to concern
acts extrinsic to the charged crimes, the district court did not
err in admitting it under its alternative rationale: that the
evidence was permissible to prove a matter other than Otuya’s
character.
To begin with, the court did not abuse its discretion in
finding that the backpack evidence was relevant to issues other
than Otuya’s character.
bank

fraud

charges,

the

For example, in order to convict on the
government

had

to

prove

that

Otuya

knowingly executed a scheme to defraud Bank of America.

See

United States v. Mancuso, 42 F.3d 836, 844 (4th Cir. 1994).

The

fact that Otuya possessed Bank of America account information, a
debit card, and a Tennessee identification card all belonging to
individuals

other

demonstrate

his

than

knowing

himself

was

participation

thus
in

relevant
the

scheme

both

to

and

to

corroborate the eye-witness identifications of Elias and other
witnesses against Otuya.
The district court also acted within its discretion when it
found that the backpack evidence was relevant to establishing
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Otuya’s common scheme or modus operandi of obtaining Bank of
America account information, paying college students for the use
of their debit cards and accounts, and having runners deposit
forged instruments into those accounts.

See United States v.

Siegel, 536 F.3d 306, 318 (4th Cir. 2008) (other crime evidence
relevant for modus operandi where defendant’s “typical pattern
was to obtain the personal information of another person, use
that information to obtain credit in that person’s name, and
take whatever steps were necessary to prevent that person from
learning about the new accounts until it was too late”).

We

therefore

in

conclude

that

the

district

court

did

not

err

admitting the evidence. *

III.
Otuya

next

identity theft.

challenges

his

conviction

for

aggravated

The statute imposes a mandatory consecutive two

year prison sentence against one who, “during and in relation to
any

felony

violation

enumerated

in

subsection

(c)

[including

bank fraud], knowingly . . . uses, without lawful authority, a
means

of

identification

of

another

*

person.”

18

U.S.C.

Because the other direct and circumstantial evidence of
Otuya’s guilt was so overwhelming, we also find that any error
in admitting the backpack evidence would have been harmless in
any event.
See Fed. R. Crim. P. 52(a) (“Any error . . . that
does not affect substantial rights must be disregarded.”).

11

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§ 1028A(a)(1).

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Otuya asserts that § 1028A’s use of the phrase

“without lawful authority” means that in order to violate the
statute,

a

defendant

must

use

another

individual’s

identification for a particular purpose without the individual’s
consent.

And because Otuya had such consent here -- that is,

because his coconspirator, Brandon Simmons, agreed to Otuya’s
nefarious use of his identification -- Otuya contends that his
aggravated identity theft conviction must be reversed.
We reject this argument for a straightforward reason: no
amount of consent from a coconspirator can constitute “lawful
authority”

to

engage

in

Otuya engaged in here.

the

kind

of

deplorable

conduct

that

Simply put, one does not have “lawful

authority” to consent to the commission of an unlawful act.

Nor

does a “means of identification” have to be illicitly procured
for it to be used “without lawful authority.”

To excuse Otuya’s

act of using another person’s identification to defraud Bank of
America of thousands of dollars simply because a coconspirator
agreed to let him do so would produce an untenable construction
of the statute and an unacceptable result.
Moreover, as we explained in United States v. Abdelshafi,
the

phrase

“without

lawful

authority”

means

that

§

1028A

prohibits the use of another person’s identifying information
“without a form of authorization recognized by law.”
602,

609

(4th

Cir.

2010).

Although
12

Abdelshafi

592 F.3d
involved

a

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situation where the defendant used the identifying information
of

others

for

an

illegal

purpose

without

obtaining

their

permission to do so, that distinction makes no difference.

For

it is obvious that, with or without permission from its rightful
owner,
another

a

defendant
“during

enumerated”

in

who

and

uses

in

the

the

means

of

to

any

relation

statute

necessarily

authorization recognized by law.

identification
felony
lacks

a

of

violation
form

of

Our holding as much places us

in accord with every circuit to have addressed the question.
See United States v. Lumbard, 706 F.3d 716, 722-25 (6th Cir.
2013); United States v. Ozuna-Cabrera, 663 F.3d 496, 499 (1st
Cir. 2011); United States v. Hines, 472 F.3d 1038, 1040 (8th
Cir. 2007).
Otuya raises several arguments in response, but none are
persuasive.

He first argues that our decision in United States

v. Woods, 710 F.3d 195 (4th Cir. 2013), commands a different
result.
phrase

In Woods, we upheld a jury instruction that defined the
“act

without

lawful

authority”

to

mean

the

use

of

a

“means of identification of another person without the person’s
consent or knowledge.”

Id. at 208.

While that definition is

consistent with the one that Otuya presses in this appeal, it
does not foreclose the interpretation that we adopt here.

That

is to say, a defendant acts without lawful authority not only
when he uses a means of identification without the consent or
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knowledge of its owner (as in Woods) but also when he uses the
identification in order to commit a crime even with consent (as
is true here).

In other words, the jury instruction rightly

upheld in Woods was not incorrect; it was just under-inclusive.
This makes sense in light of the facts in Woods, where the
defendant apparently did not argue that he had actual consent to
use the means of identification at issue.
case

instead

pressed

an

argument

The defendant in that

regarding

his

mens

rea,

claiming that “he did not know that he was acting without lawful
authority.”

Id. (emphasis added).

Otuya, by contrast, does not

raise any contentions about his mental state in this appeal.
Otuya next makes a number of arguments concerning statutory
purpose, legislative history, and the provision’s title.

With

respect to purpose, Otuya contends that the aggravated identity
theft

statute

consequences

of

is

designed

having

to

their

protect

victims

identifications

from

the

misappropriated.

He relies in particular on a statement in Flores-Figueroa v.
United States, where the Supreme Court accepted the government’s
description

of

§

1028A’s

purpose

as

“provid[ing]

enhanced

protection for individuals whose identifying information is used
to facilitate . . . crimes.”

556 U.S. 646, 654 (2009).

Otuya

suggests that in light of this purpose, he falls outside of the
statute’s reach insofar as there was no identity theft victim in
need of protection in his case.
14

Otuya also points to stray

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remarks in the legislative history where individual lawmakers
discussed the victim-protection aim of the law.

And he relies

lastly on the statute’s title –- “aggravated identity theft” -as an indication that the law was designed to protect against
the actual theft of an identity, which did not occur here.
Despite

Otuya’s

pleas,

all

of

these

arguments

must

be

rejected under an elementary rationale: arguments about purpose,
history, and statutory titles cannot contradict a law’s plain
text.

See Bd. of Governors of Fed. Reserve Sys. v. Dimension

Fin. Corp., 474 U.S. 361, 374 (1986) (rejecting the “invocation
of the ‘plain purpose’ of legislation at the expense of the
terms of the statute itself”); W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 98-99 (1991) (“Where [a statute] contains a
phrase that is unambiguous . . . we do not permit it to be
expanded or contracted” based on legislative history); Pa. Dep’t
of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“The title of a
statute cannot limit the plain meaning of the text.” (internal
quotation

marks

and

alterations

omitted)).

As

we

have

explained, the plain meaning of § 1028A(a)(1) is unambiguous:
one who uses a means of identification to commit an enumerated
felony does not act with “lawful authority.”
Otuya’s conviction for aggravated identity theft.

15

We thus affirm

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IV.
With his challenges to his convictions unavailing, Otuya
attempts next to contest the district court’s application of the
sentencing guidelines.

Otuya claims that the district court

erred in three respects, but his arguments are unpersuasive.
A.
Otuya’s first claim is that the trial court erroneously
imposed

a

twelve-level

enhancement

pursuant

to

U.S.S.G.

§ 2B1.1(b)(1)(G) on the ground that Otuya’s offense involved an
intended
court’s

loss

amount

calculation

in

of

excess

loss

of

amount

$200,000.
for

We

clear

review

error.

the

United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In calculating the amount of loss for the purpose of the
§ 2B1.1(b)(1)

enhancement,

a

district

court

may

consider

the

“greater of actual loss or intended loss” and must only make a
“reasonable

estimate”

information.
this

one

of

that

amount

based

U.S.S.G. § 2B1.1 cmt. n.3(A), (C).

involving

jointly

undertaken

on

available

In a case like

criminal

activity,

a

particular loss may be attributed to a defendant if it results
from

the

conduct

of

others

so

long

as

the

conduct

was

“in

furtherance of, and reasonably foreseeable in connection with”
the criminal activity.

U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.2.

In this case, the district court made a reasonable estimate
that the intended loss reasonably foreseeable to Otuya was in
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excess of $200,000.
referenced

a

Pg: 17 of 21

In reaching that determination, the court

detailed

spreadsheet

that

the

government

constructed describing 78 specific losses that were intended in
the course of the fraud scheme.

The court then selected the 33

particular losses that it found to be in furtherance of the
conspiracy and reasonably foreseeable to Otuya, either because
he personally perpetrated the underlying fraudulent transactions
or

because

he

had

conspirators who did.

a

close

working

connection

with

the

There is no dispute that the total of the

intended losses from those transactions exceeded $200,000, and
in fact approached $400,000.

In view of this strong evidence,

the court did not clearly err in its loss calculation or the
resulting imposition of a twelve-level enhancement.
B.
Otuya’s
court’s

second

application

challenge
of

a

to

his

four-level

sentence

enhancement

concerns
for

a

the
crime

having fifty or more victims under U.S.S.G. § 2B1.1(b)(2)(B).
That guideline provision defines the term “victim” to include,
inter alia, “any person who sustained any part of the actual
loss.”

U.S.S.G. § 2B1.1 cmt. n.1.

“Actual loss” is defined to

mean “pecuniary harm,” which in turn encompasses “harm that is
monetary or that otherwise is readily measurable in money” and
does not include “non-economic harm.”
n.3(A)(i),

(iii).

We

review
17

the

U.S.S.G. § 2B1.1 cmt.
court’s

ruling

on

this

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enhancement for clear error with respect to factual findings and
de novo as to legal conclusions.

See United States v. Blake, 81

F.3d 498, 503 (4th Cir. 1996).
The thrust of Otuya’s argument is that the district court
took an erroneous view of this enhancement when it counted as
victims a number of individual account holders whose losses were
reimbursed by Bank of America.
reimbursed

persons

did

not

In Otuya’s view, because such

suffer

any

monetary

or

pecuniary

harm, they did not “sustain[] any part of the actual loss” as
would

be

required

U.S.S.G. §

to

meet

the

definition

of

a

“victim.”

2B1.1 cmt. n.1.

In rejecting this contention, the district court noted a
divide in authority among our sister circuits.

For example, in

United States v. Yagar, the Sixth Circuit held that bank account
holders do not count as “‘victims’ under the Guidelines [where]
they

[a]re

losses.”

fully

reimbursed

for

their

temporary

financial

404 F.3d 967, 971 (6th Cir. 2005); see also, e.g.,

United States v. Kennedy, 554 F.3d 415, 419 (3d. Cir. 2009).

By

contrast, the First Circuit has “reject[ed]” the position taken
in Yagar and in other circuits, that “account holders d[o] not
suffer

actual

pecuniary

harm,

‘readily

measurable

in

money,’

[if] their losses were reimbursed.”

United States v. Stepanian,

570 F.3d 51, 56 (1st Cir. 2009).

The First Circuit instead

takes

the

view

that

the

definition
18

of

“victim”

in

U.S.S.G.

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§ 2B1.1 cmt. n.1 “does not have a temporal limit or otherwise
indicate that losses must be permanent.”

Id. at 55.

While our circuit has yet to squarely address this issue,
we need not do so here because there is an alternative basis in
the record that indisputably warrants the application of the
number-of-victims enhancement.

See United States v. Jinwright,

683 F.3d 471, 488 (4th Cir. 2012) (“We may affirm the district
court

on

the

basis

of

any

conduct

in

the

record

that

independently and properly should result in an increase in the
offense level by virtue of the enhancement.” (internal quotation
marks and alterations omitted)).

Specifically, U.S.S.G. § 2B1.1

cmt. n.4(C) provides an additional definition of “victim” that
is obviously pertinent based on Otuya’s conduct: “in a case in
which undelivered United States mail was taken . . . ‘victim’
means

.

.

.

any

person

who

was

the

intended

recipient,

or

addressee, of the undelivered United States mail.”
The government presented ample evidence at trial that at
least

fifty

persons

confederates.

had

their

mail

taken

by

Otuya

and

his

Rebecca Elias and Makeda Tefera testified that

they went on multiple trips -- referred to by the conspirators
as

“missions”

through

--

during

residential

mailboxes.

which

Otuya

neighborhoods

and

and

others
steal

would

mail

drive

out

of

Elias explained that she personally went on two or

three missions with members of the conspiracy, and that on one
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of these missions she witnessed Otuya take mail out of a number
of roadside boxes and stuff it inside a “large trash bag in the
passenger side seat,” to the point where the bag was “pretty
full.”

Tefera testified that she, too, saw Otuya fill up a

plastic

bag

“overflowing.”

with

stolen

mail,

so

much

so

that

it

was

Thus, although neither witness offered a precise

number for how many persons had their mail stolen on any given
mission, or how many missions the conspirators took in total,
the testimony was surely sufficient to support a finding of at
least fifty victims.

On that basis, we affirm the district

court’s application of the number-of-victims enhancement.
C.
Finally, Otuya challenges the trial court’s imposition of a
three-level enhancement for his aggravated role as a manager or
supervisor

in

the

offense

under

U.S.S.G.

§

3B1.1(b).

The

guidelines list the following factors as among those relevant to
a determination of aggravated role: “the exercise of decision
making authority . . . the recruitment of accomplices . . .
[and] the degree of participation in planning or organizing the
offense.”

U.S.S.G. § 3B1.1 cmt. n.4.

Given the facts adduced

at trial, the court did not err in concluding in light of these
factors that Otuya was a manager or supervisor in the scheme.
For starters, the trial court correctly observed that Otuya
was intimately involved in planning and organizing the offense
20

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and making key decisions.
checks

and

information

supplied
to

entering a bank.
testified
multiple

that

Otuya frequently obtained convenience

both

runners,

Pg: 21 of 21

the

checks

instructing

and

them

on

student
what

to

account
do

upon

To that end, Elias, Tesfaye, and Tefera each
the

occasions.

defendant
Moreover,

supervised
Otuya

also

their

actions

regularly

on

decided

where, when, and in what amounts the various transactions would
be performed.

And as a government inspector testified during

Otuya’s sentencing hearing, Otuya recruited others to join in
the scheme and taught them the basics of how it operated.

We

therefore affirm the application of the three-level aggravated
role enhancement to Otuya.

V.
For the reasons given, the judgment of the district court
is hereby affirmed.
AFFIRMED

21