US v. Adetokunbo Adepoju
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cr-00647-MJG-1. [999380830]. [12-5007]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADETOKUNBO OLUBUNMI ADEPOJU, a/k/a Olu,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:10-cr-00647-MJG-1)
Argued:
March 19, 2014
Before GREGORY
Circuit Judge.
and
FLOYD,
Decided:
Circuit
Judges,
and
June 23, 2014
DAVIS,
Senior
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Senior Judge Davis joined.
ARGUED: John O. Iweanoge, II, IWEANOGE LAW CENTER, Washington,
D.C., for Appellant.
Judson T. Mihok, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF:
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
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GREGORY, Circuit Judge:
After a jury convicted him of bank fraud and aggravated
identity theft, Adetokunbo Olubumi Adepoju received a seventymonth
sentence.
evidence
for
He
his
affirm
the
violation.
challenges
convictions
sophisticated means.
We
now
and
the
sufficiency
sentencing
of
the
enhancement
for
Also, he asserts a due process violation.
convictions
However,
and
because
also
the
find
facts
do
no
not
due
process
affirmatively
demonstrate sophisticated means in his attempt to commit bank
fraud, we vacate and remand for resentencing.
I.
In June 2010, a confidential informant (“CI”) contacted law
enforcement to report a man named “Olu”—later identified as the
defendant—who claimed to be a real estate agent looking to sell
counterfeit
identification
documents
for
$7,500.
Upon
instruction from Department of Homeland Security (“DHS”) Special
Agent
(“SA”)
Marc
Dipaola,
the
CI
informed
Adepoju
that
the
potential customer for the documents balked at the high price.
The two ceased discussing this potential transaction.
One month
later, Adepoju approached the CI with a plan to defraud a bank
and asked whether the CI knew someone who worked at a bank.
CI
led
Adepoju
president-like
to
believe
position
at
that
a
he
knew
a
local
Bank
of
2
woman
in
America
a
who
The
vice
had
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previously assisted the CI with illegal transactions.
Adepoju
instructed the CI to open two accounts, into which the CI would
deposit checks that Adepoju supplied.
the
CI
could
withdraw
the
funds,
Once the checks cleared,
retain
his
portion,
pay
a
portion to the insider, and give Adepoju the remaining amount.
On
August
31,
2010,
Adepoju
provided
the
CI
with
IRS
documentation to use for opening a personal account in the name
of “T.A.” and a business account in the name of “T.A. Trucking.” 1
Handwritten on the back of the documents were T.A.’s name, date
of
birth,
and
social
security
number.
The
CI
contacted
Dipaola and presented these documents to the agent.
SA
Upon SA
Dipaola’s instruction, the CI asked Adepoju whether T.A. was a
real person, and Adepoju responded affirmatively.
later
questioned
presented
whether
fabricated
the
accounts
checks,
created
were
by
When Adepoju
open,
law
the
CI
enforcement,
connected to fictitious accounts to satisfy Adepoju’s inquiries. 2
The next month, the CI received two checks from Adepoju.
The first was a Wells Fargo Bank cashier’s check payable to T.A.
for
$28,000.
$70,500.
1
The
second
was
payable
to
T.A.
Trucking
for
The CI led Adepoju to believe he would deposit the
T.A.’s full name is redacted throughout this opinion.
2
Fabricated checks were necessary to accomplish this, as an
actual account could not be opened due to the fact that T.A. was
a real person.
3
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checks, but he then gave them to law enforcement.
After Adepoju
repeatedly asked the CI to withdraw funds from the accounts, SA
Dipaola
called
secured
Adepoju
search
and
warrants
arranged
a
for
time
Adepoju’s
to
home.
deliver
the
The
withdrawn
funds, yet Adepoju never met the CI or received the funds.
the
day
of
the
planned
exchange,
Adepoju
CI
called
On
the
CI,
initially changing the meeting location before later aborting
the meeting altogether.
Law enforcement executed the search warrants and arrested
Adepoju at his home.
Officers recovered five cellular phones, a
laptop computer, and a thumb drive.
The number assigned to one
of the phones matched the number the CI used to call Adepoju.
The thumb drive contained images of blank social security cards
and a check issued by a Pennsylvania company.
The images of the
check showed the account number but blocked out the name of the
payee.
The
officers
also
found
multiple
copies
of
a
check
bearing the same number but made out to different payees, one of
whom was Adepoju’s wife, for different amounts.
Fingerprint
analysis revealed the presence of Adepoju’s thumbprint on the
envelope used to deliver the $28,000 check to the CI.
The
fraud
government
under
identity
18
theft
charged
U.S.C.
under
18
Adepoju
§ 1344
and
U.S.C.
with
one
§ 1028A.
two
count
At
counts
of
of
bank
aggravated
trial,
the
CI
testified as to the aforementioned interactions with Adepoju.
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SA Dipaola testified that accounts at four different banks were
opened
in
T.A’s
name
shortly
before
the
CI
received
his
information from Adepoju, between July 28 and August 31, 2010.
These
accounts
all
listed
the
same
Temple
Hills,
Maryland
address that also appeared on the documents the CI received.
T.A., a Pennsylvania resident, identified his social security
number and birthdate on the forms Adepoju supplied to the CI.
T.A
also
stated
that
he
had
not
authorized
anyone
to
open
accounts on his behalf, never operated a trucking business, and
had never been to Temple Hills, Maryland.
Testimony from Wells
Fargo Bank representatives established that the checks the CI
received
were
fraudulent
federally insured.
the
forged
that
the
bank’s
deposits
were
The representatives also explained that had
cashier’s
successfully
and
checks
withdrawn
as
been
a
deposited
result,
the
and
funds
been
bank
would
have
all
counts,
experienced a loss.
After
the
jury
convicted
Adepoju
on
the
district court sentenced him to seventy months’ imprisonment.
For
the
bank
fraud
convictions,
the
district
court
imposed
forty-six month sentences, the high end of the Guidelines range.
Conviction on Count Three mandated a twenty-four-month sentence,
which
the
sentences.
court
imposed
consecutively
See 18 U.S.C. § 1028A(b)(2).
5
to
the
bank
fraud
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to
this
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appeal,
the
court
applied
to
the
bank
fraud sentences a two-level enhancement for using sophisticated
means under § 2B1.1(b)(10)(C) of the Sentencing Guidelines.
At
sentencing, the district court opined that unsophisticated means
involves
“something
that
an
ordinary
person,
specially trained in something, could get done.”
court
then
asked
defense
counsel
how
who
wasn’t
J.A. 649.
acquiring
The
T.A.’s
information was not sophisticated, and defense counsel explained
that troves of personal information can be found via commonlyused internet search engines and other tactics.
defense
counsel
noted,
opening
a
bank
Furthermore,
account
sophistication but merely the proper paperwork.
requires
not
The government
responded that no evidence supported Adepoju’s claims that he
used simple tactics to obtain T.A.’s information.
Specifically,
the government argued that there was no evidence that he used a
simple internet search or other commonplace means to acquire
T.A.’s name, birthdate, and social security number.
After cautioning that it did not want to place the burden
on the defendant, the court noted the absence of evidence that
T.A.’s
sources
information
and
that
could
this
have
been
absence
retrieved
“reinforces
via
the
[Adepoju’s scheme] must have been sophisticated.”
The
district
appropriate
court
based
then
on
the
concluded
effort
6
that
the
required
to
internet
view
that
J.A. 654.
enhancement
obtain
was
T.A.’s
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information, obtain the forged checks, and “do what would have
worked” had the CI actually opened the account and deposited the
checks.
J.A. 657.
Adepoju timely appealed and now challenges the sufficiency
of the evidence, the sophisticated means enhancement, and the
mandatory
sentence
for
aggravated
identity
theft.
We
have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Where
a
defendant
challenges
the
sufficiency
of
the
evidence supporting a conviction, we view the evidence in the
light most favorable to the government and uphold the verdict if
substantial evidence supports it.
United States v. Stockton,
349 F.3d 755, 760-61 (4th Cir. 2003).
Substantial evidence is
that which, taking all inferences in the government’s favor,
could lead a rational jury to find the evidence sufficient for a
conviction.
1996).
A
United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
defendant
challenging
the
sufficiency
of
evidence
“faces a heavy burden,” United States v. Young, 609 F.3d 348,
355 (4th Cir. 2010), and we reverse only where the prosecution’s
failure is clear.
United States v. Moye, 454 F.3d 390, 394 (4th
Cir. 2006).
Challenging the bank fraud convictions, Adepoju cites an
absence of evidence that he opened an account at a federally
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insured financial institution or presented the fraudulent checks
for payment.
As to the identity theft conviction, he contends
that the evidence failed to demonstrate that he knew that T.A.
was a real person.
We disagree with both contentions.
A.
The federal bank fraud statute imposes criminal liability
in two circumstances.
The first is an attempted or completed
scheme to defraud a financial institution.
18 U.S.C. § 1344(1).
The
completed
second
is
a
knowingly
attempted
or
obtain funds by false pretenses or representation.
scheme
§ 1344(2).
to
18 U.S.C.
The major difference between the subsections is that
§ 1344(1) focuses on how the defendant’s conduct affects a bank,
while § 1344(2) focuses solely on the conduct.
Loughrin, 710 F.3d 1111, 1116 (10th Cir. 2013).
United States v.
The elements of
a § 1344(1) violation are (1) the defendant knowingly executed
or
attempted
a
scheme
or
artifice
to
defraud
a
financial
institution, (2) he did so with intent to defraud, and (3) the
institution was a federally insured or chartered bank.
United
States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002); see also
United States v. Flanders, 491 F.3d 1197 (10th Cir. 2007).
The
requirements for a § 1344(2) conviction differ only as to the
first element, which is that the defendant knowingly execute a
scheme
to
obtain
property
held
by
through false or fraudulent pretenses.
8
a
financial
institution
Loughrin, 710 F.3d at
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Thus, § 1344(1) does not require fraudulent promises,
United States v. Celesia, 945 F.2d 756, 758 (4th Cir. 1991), or
that the bank suffer any loss, Loughrin, 710 F.3d at 1116.
§ 1344(2)
conviction
does
not
demand
that
the
bank
be
A
the
intended victim of the fraud; a person can violate the statute
by
obtaining
funds
from
a
another person or entity.
bank
while
intending
to
defraud
Loughrin, 710 F.3d at 1116.
As an initial matter, we address Adepoju’s argument that
only § 1344(1) applies here because the indictment failed to
allege
an
affirmative
misrepresentation
with
respect
forged checks, a requirement for § 1344(2).
to
the
We disagree with
this position because the indictment cites § 1344 and references
language
from
both
subsections,
thereby
providing
intent to pursue conviction under either one.
point,
his
argument
does
not
bear
of
See United States
v. Fontana, 348 F.2d 796, 801 (1st Cir. 1991).
this
notice
on
Notwithstanding
our
disposition
because we find the evidence sufficient under § 1344(1).
See
Brandon, 298 F.3d at 314 (finding unnecessary an analysis of
sufficiency under § 1344(2) where evidence supported conviction
under § 1344(1)); see also United States v. Wilkinson, 137 F.3d
214, 232 (4th Cir. 1998).
Taken in the light most favorable to the government, the
evidence
Adepoju
in
is
this
case
supports
guilty
of
committing
9
the
bank
jury’s
fraud
conclusion
as
defined
that
by
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§ 1344(1).
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On the first element, the evidence demonstrated an
attempt to execute a scheme to defraud a financial institution.
Adepoju
concedes
that
attempt.
As
the
to
the
evidence
second
shows
element,
this
incomplete
Adepoju’s
intent
is
demonstrated by his statements, as conveyed by the CI, regarding
the plan to open bank accounts under another’s name, deposit
checks into those accounts, and later withdraw the deposited
funds.
The third element, that the bank was federally insured
or chartered, is satisfied by the trial testimony of Wells Fargo
representatives.
Adepoju’s
arguments
to
the
contrary
are
unpersuasive.
First, he contends that the evidence failed to demonstrate a
risk of loss or that he devised the scheme.
bank
is
tends
to
unnecessary
prove
for
the
a
§ 1344(1)
requisite
intent
Risk of loss to the
conviction,
under
that
although
it
subsection.
United States v. Swanson, 360 F.3d 1155 (10th Cir. 2004) (risk
of
loss
is
subsumed
under
§ 1344(1)’s
“defraud
a
financial
institution” language); United States v. Hoglund, 178 F.3d 410,
413
(6th
Cir.
1999)
(risk
of
loss
“is
merely
establishing intent to defraud” under § 1344(1)). 3
one
way
of
Furthermore,
the jury heard that Adepoju—not the CI—devised the plan to
defraud the bank.
Second, having conceded that there was an
3
Risk of loss is also unnecessary under § 1344(2).
Loughrin, 710 F.3d at 1115-16; McNeil, 320 F.3d at 1038.
10
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incomplete
checks,
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attempt
Adepoju
to
execute
argues
Pg: 11 of 20
scheme
he
that
a
did
constituting criminal activity.
involving
not
take
fraudulent
any
steps
However, the evidence quells
the notion that this conviction implicates mere thoughtcrime.
The testimony demonstrated that he provided the CI with T.A.’s
information and two forged checks for deposit.
His actions,
which “set[] in motion the eventual presentation of the forged
instruments”
to
a
bank,
demonstrated
Adepoju’s
intent
to
defraud, even though he did not personally present the checks to
the bank.
Brandon, 298 F.3d at 312-13.
For these reasons, we
affirm the bank fraud convictions in Counts One and Two.
B.
A conviction for aggravated identity theft under 18 U.S.C.
§ 1028A(a)(1) requires proof that the defendant “(1) knowingly
transferred, possessed, or used, (2) without lawful authority,
(3) a means of identification of another person, (4) during and
in relation to a predicate felony offense.”
United States v.
Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010).
A means of
identification is a “name or number that may be used, alone or
in
conjunction
with
any
other
information,
to
identify
a
specific individual, including any name, social security number,
date
of
number.”
518
F.3d
birth,
. . .
employer
or
taxpayer
identification
18 U.S.C. § 1028(d)(7); see United States v. Mitchell,
230,
234
(4th
Cir.
11
2008)
(explaining
that
the
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definition
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in
§ 1028(d)(7)
Pg: 12 of 20
applies
to
§ 1028
and
§ 1028A).
Relevant to the first element, the government must prove that
the accused knew that the “means of identification” belonged to
another
person;
identification
Flores-Figueroa
(2009).
an
accused
refers
v.
to
United
a
unaware
real
556
the
cannot
U.S.
646,
means
be
of
guilty.
647,
654-55
Knowledge of existence is enough; the accused need not
1202,
whether
person
States,
know the individual personally.
F.3d
that
1207
the
person.
(8th
evidence
Cir.
United States v. Foster, 740
2014).
demonstrated
Adepoju
he
knew
only
T.A.
We find this requirement satisfied.
challenges
was
a
real
On no less than
three occasions, the CI testified at trial that Adepoju admitted
that
T.A.
before
was
a
real
reiterating
person—twice
this
point
on
during
direct
examination
cross-examination.
This
testimony provided sufficient evidence, taken in the light most
favorable to the government, demonstrating Adepoju’s knowledge
that
T.A.
was
a
real
person.
Therefore,
we
affirm
the
conviction for aggravated identity theft under Count Three.
III.
Adepoju argues that the district court erred in applying a
sentencing enhancement for using sophisticated means in a bank
fraud scheme.
In reviewing a Sentencing Guidelines application,
we review factual findings for clear error and legal conclusions
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de novo.
2006).
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United States v. Allen, 446 F.3d 522, 527 (4th Cir.
Where a Guidelines application involves a mixed question
of law and fact, the applicable standard turns on the nature of
the circumstances at issue.
factual,”
we
apply
the
If the application is “essentially
clearly
erroneous
standard.
United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (citation
omitted).
means
Whether a defendant’s conduct involved sophisticated
is
an
essentially
clear error.
factual
inquiry,
thus
we
review
for
Cf. United States v. Hughes, 401 F.3d 540, 557
(4th Cir. 2005) (applying the clear error standard to determine
whether
conduct
constituted
more
than
minimal
planning);
Daughtrey, 874 F.2d at 218 (finding that whether the defendant
was
a
minimal
or
minor
participant
in
a
crime
to
be
an
“essentially factual” inquiry); accord United States v. Anobah,
734 F.3d 733, 739 (7th Cir. 2013); United States v. Calhoun, 721
F.3d 596, 605 (8th Cir. 2013); United States v. Kennedy, 714
F.3d 951, 961 (6th Cir. 2013); United States v. Bane, 720 F.3d
818, 826 (11th Cir. 2013).
The Sentencing Guidelines require a two-level enhancement
where a defendant uses sophisticated means in committing acts of
fraud
or
U.S.S.G.
especially
other
offenses
involving
§ 2B1.1(b)(10)(C).
complex
or
theft
or
counterfeiting.
“‘Sophisticated
especially
intricate
means’
offense
conduct,
pertaining to the execution or concealment of an offense.
13
means
. . .
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Conduct such as hiding assets or transactions, or both, through
the use of fictitious entities, corporate shells, or offshore
financial
means.”
States,
accounts
also
ordinarily
indicates
sophisticated
U.S.S.G. § 2B1.1 cmt. n. 9(B); see Stinson v. United
508
U.S.
36,
38
(1993)
(holding
that
Guidelines
commentary explaining or interpreting a rule “is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent
with,
guideline”).
or
a
plainly
erroneous
reading
of,
that
The enhancement applies where the entirety of a
scheme constitutes sophisticated means, even if every individual
action is not sophisticated.
See United States v. Jinwright,
683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means
enhancement under U.S.S.G. § 2T1.1(b)(2) to tax fraud).
so,
sophistication
requires
more
complexities inherent in fraud.
inadequate
for
demonstrating
than
Id.
the
the
Even
concealment
or
Thus, fraud per se is
complexity
required
for
enhancement under U.S.S.G. § 2B1.1(b)(10)(C).
It
is
preponderance
enhancement.
axiomatic
of
evidence
carry that burden.
to
the
the
government
must
applicability
of
prove
a
by
a
sentencing
See, e.g., United States v. Steffen, 741 F.3d 411,
413 (4th Cir. 2013).
identity
that
attempt
In this case, the government failed to
Adepoju’s use of forged checks and a stolen
bank
fraud
is
beyond
dispute.
Indeed,
virtually all bank fraud will involve misrepresentation, which
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includes
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unauthorized
information.
Pg: 15 of 20
acquisition
and
use
of
another’s
See United States v. Archuleta, 231 F.3d 682, 685-
86 (10th Cir. 2000) (holding that the defendant’s use of a false
name and checks to obtain funds from a credit union constituted
“evidence of nothing more than the minimum conduct required to
establish
a
violation
form”).
Therefore,
of
the
[18
U.S.C.]
realm
of
§ 1344
especial
in
its
simplest
complexities
and
intricacies involves more than the forgeries, misrepresentation,
and concealment inherent in bank fraud.
See United States v.
Montano, 250 F.3d 709, 715 (9th Cir. 2001) (finding that because
smuggling necessarily involves concealment, sophisticated means
requires more than what is necessary to commit the crime).
The district court clearly erred by essentially shifting
the burden to Adepoju to disprove sophistication.
See United
States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003) (vacating
a sentencing enhancement where the district court applied the
enhancement
after
finding
defendant’s position).
a
lack
of
evidence
supporting
the
While the district court expressed an
understanding that it would be improper to place a burden on the
defendant, that is exactly what it did.
that
acquiring
T.A.’s
information
It began by presuming
was
accomplished
by
sophisticated methods, without any evidence as to how Adepoju
acquired this information.
The court then asked Adepoju for
evidence that he acquired the information in a non-sophisticated
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Then, finding Adepoju’s argument against sophistication
unpersuasive, it applied the enhancement based on the stolen
information and plan to commit fraud.
While demonstrating that
Adepoju did enough to violate § 1344 “in its simplest form,” see
Archuleta, 231 F.3d at 685-86, the facts concerning the crime of
conviction do not affirmatively indicate that he did anything
especially intricate or complex to obtain T.A.’s information or
attempt to defraud a bank, see Jinwright, 683 F.3d at 486 (“The
[sophisticated
means]
enhancement
requires
some
means
of
execution that separates the offense before us from the ordinary
or generic.”).
A clear error occurs where we are left with a firm and
definite conviction that a mistake has been committed.
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).
United
Here, the
lack of evidence or explanation of sophistication is clear.
United
States
v.
Llamas,
599
F.3d
381,
389
(4th
Cir.
See
2010)
(vacating enhancement application where sentencing court “failed
to provide a sufficient explanation of its finding” supporting
enhancement).
The
reasoning
for
the
enhancement
here
essentially amounts to a tautology, where the district court
used the presence of the tools to commit fraud and the plan to
use those tools, combined with a lack of explanation of nonsophistication, as proof of sophistication.
However, neither
the record nor common sense suggest that names, birthdates, and
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social security numbers can be obtained only by sophisticated
means.
There
information.
is
no
evidence
Additionally,
of
the
how
Adepoju
government
obtained
conceded
that
that
obtaining an EIN, even for a falsified company, “is something
that’s not too difficult to do.”
J.A. 655.
Thus, the mere
possession of such information cannot, on its own, demonstrate
sophistication.
Nor was there any explanation by the court as
to how the planned conduct was especially complex or intricate
above and beyond typical § 1344 violations.
F.3d at 388-89.
Cf. Llamas, 599
The government’s burden demands more than the
mere presence of the tools of fraud and the attempt to use the
same.
If
Adepoju’s
current
offenses
did
in
fact
employ
sophisticated means, the government’s evidence and the court’s
conclusory finding did not demonstrate this. 4
4
The government presents two additional arguments, neither
of which is persuasive.
The first relies upon an unpublished
decision of this Court finding that the submission of falsified
loan documentation constituted sophisticated means.
United
States v. Okolo, No. 03-4402, 82 F. App’x 834, 836-37 (4th Cir.
Dec. 16, 2003).
That case involved a “painstaking attempt” to
create documents that would survive scrutiny of a bank issuing
more than $600,000 in loans for luxury cars, including timeconsuming efforts of calculating income tax deductions for the
falsified pay stub, vision and dental insurance payments, and
year-to-date tax withholding amounts.
Id. at 835-36.
In
contrast, the documents and forgeries now before us did not
require such meticulous fabrications.
Second, the government
contends that Adepoju used sophisticated means to create an
access device as defined by 18 U.S.C. § 1029(e)(1).
We reject
this argument because paper checks are not “access devices” as
defined by that statute.
See United States v. Tatum, 518 F.3d
(Continued)
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We
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conclude
imposing
that
the
but
district
sophisticated
§ 2B1.1(b)(10)(C).
evidence
the
Pg: 18 of 20
This
from
the
means
result
absence
court
stems
of
clearly
erred
enhancement
not
factual
from
of
weighing
findings
district court gives little, if any, to consider.
in
where
the
the
See Llamas,
599 F.3d at 389.
Our conclusion by no means requires that the
court
existence
find
the
“exceptional
brilliance
enhancement.”
more
planning.
and,
to
“highly
justify
a
complex
schemes”
sophisticated
or
means
United States v. Jennings, 711 F.3d 1144, 1145
(9th Cir. 2013).
require
of
than
The enhancement for sophisticated means does
just
thoughtful
or
potentially
successful
Bank fraud requires plans to wrongfully acquire funds
where
§ 1344(1)
is
at
issue,
misrepresentation.
The
presence of forgeries or stolen identification, and a plan to
use
such
material
necessarily
amount
to
to
wrongfully
acquire
sophistication.
If
moneys,
does
Adepoju’s
not
efforts
involved something especially more intricate and complex than
what
is
required
to
violate
the
bank
fraud
statute
in
its
simplest form, the court failed to identify those aspects.
To
affirm in the absence of such proof would permit enhancement
where the mere presence of and plan to use fraudulent materials
769, 772-73 (10th Cir. 2008); United States v. Hughey, 147 F.3d
423, 434 (5th Cir. 1998).
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is combined with a defendant’s inability to prove a lack of
sophistication.
We refuse to endorse such an approach.
IV.
Adepoju argues that his right to due process was violated
because the facts supporting the two-year minimum for aggravated
identity theft were not properly presented to the jury.
Alleyne v. United States, 133 S. Ct. 2151 (2013).
Cf.
We apply
plain error review to an objection based upon a new rule of law
not
in
effect
at
the
time
of
the
contested
proceeding.
Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013); see
United States v. Olano, 507 U.S. 725, 732 (1993) (explaining
plain error standard).
In Alleyne, the defendant was charged
under a statute that imposed varying mandatory minimums based on
different factual scenarios, and the Supreme Court held that a
jury
must
make
special
mandatory minimums.
findings
as
to
any
facts
increasing
133 S. Ct. at 2155-56, 2158, 2160.
The
aggravated identity theft statute now at issue does not involve
varying mandatory minimums.
A finding that Adepoju knowingly
transferred,
possessed,
or
identification
could
result
sentence.
only
used
in
another’s
a
means
consecutive
See 18 U.S.C. §§ 1028A(a)(1), (b)(2).
two-year
The jury’s
verdict thus supports the two-year sentence for this charge.
error, plain or otherwise, occurred.
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of
No
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V.
For the foregoing reasons, we affirm Adepoju’s bank fraud
and aggravated identity theft convictions.
consecutive
theft.
two-year
minimum
sentence
for
We also affirm the
aggravated
identity
Because the evidence failed to demonstrate that Adepoju
engaged in especially complex or intricate behavior above and
beyond that inherent in fraud, we vacate his sentence and remand
for
resentencing
without
the
enhancement
and
consistent
with
this opinion.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
20
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