US v. Oluwaseun Sanya

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00379-TDC-1 Copies to all parties and the district court/agency. [999852595].. [15-4306, 15-4574]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4306

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OLUWASEUN SANYA,
Defendant - Appellant.

No. 15-4574

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OLUWASEUN SANYA,
Defendant - Appellant.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Theodore D. Chuang, District Judge.
(8:12-cr-00379-TDC-1; 8:13-cr-00121-TDC-1)

Submitted:

May 31, 2016

Decided:

Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

June 14, 2016

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Affirmed by unpublished per curiam opinion.

Kenneth E. McPherson, KENNETH E. MCPHERSON, CHTD, Riverdale,
Maryland; Gregory Dolin, Catherine Florea, Marie Langlois,
UNIVERSITY OF BALTIMORE, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Sujit Raman, Chief of
Appeals, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Oluwaseun

Sanya

appeals

from

the

sentences

imposed

upon

resentencing after he pleaded guilty to conspiracy to commit
access

device

fraud,

access

device

identity theft in two related cases.

fraud,

and

aggravated

In a first appeal, this

court ruled that the district court impermissibly participated
in plea negotiations on the charges of access device fraud and
aggravated identity theft.

We vacated those convictions and

both sentences and remanded for further proceedings.

United

States v. Sanya, 774 F.3d 812, 814, 821-22 (4th Cir. 2014).

On

remand, the cases were assigned to a new district court judge
and deconsolidated.
fraud

case,

sentenced

the

Sanya

In the conspiracy to commit access device

guilty
to

90

plea
months

remained
of

intact

imprisonment.

and
In

the
the

court
case

vacating the remaining convictions, the parties again entered
into a plea agreement and the court sentenced Sanya to 81 months
and one day of imprisonment, all to run consecutively to the
previous 90-month sentence.
on both cases.

Sanya appeals the sentences imposed

Counsel has filed an Anders v. California, 386

U.S. 738 (1967) brief challenging the criminal judgment in the
access device fraud and aggravated identity theft convictions.
Counsel found no meritorious issues related to the judgment but
questioned whether the plea agreement was supported by a factual

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basis

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and

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whether

the

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consecutive

sentence

was

reasonable.

Finding no error, we affirm.
We

first

address

the

90-month

sentence

conspiracy to commit access device fraud.
Government

presented

false

and

imposed

for

Sanya argues that the

misleading

testimony

when

Detective Mengedoht testified that all the transactions on the
“Limnios spreadsheet” were captured on video surveillance.

He

also contends that the Government presented losses above what
was agreed to in the plea agreement.

The Government argues that

every transaction on the Limnios spreadsheet could be traced to
direct

video

or

photographic

evidence,

as

the

detective

testified that the transactions were all related to at least
credit card numbers used by co-conspirators at that location on
the

same

day.

Thus,

the

Government

argues,

the

court

was

justified in relying upon the Government’s loss spread sheets.
Sanya’s argument is two-fold.

First, whether the evidence

presented in the loss spreadsheets was misleading or false and,
further, violated the plea agreement.

And, second, whether the

court erred in relying on the information.
to

the

use

of

the

challenged

Sanya did not object

spreadsheets

therefore we review the claim for plain error.

at

resentencing,

United States v.

Olano, 507 U.S. 725, 732 (1993).

Although Sanya contends that

the

evidence

use

of

false

or

misleading

implicates

process rights and should be reviewed de novo,
4

his

due

see Napue v.

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Illinois,

360

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U.S.

264,

271

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(1959),

because

Sanya

did

not

articulate any objection on these bases for the district court
to rule upon, we review for plain error.
We

conclude

considering

that

Detective

the

court

Mengedoht’s

amount of loss spreadsheets.
the

court

was

aware

that

did

not

testimony

plainly
and

err

the

in

relevant

It is clear from the record that
the

detective

did

not

have

video

footage of conspirator Limnios making each transaction on the
contested spreadsheets, but the record reflects that the court
was aware of the type of evidence supporting the transactions.
We therefore find no plain error resulting in the violation of
Sanya’s due process rights and, further, that the testimony was
not misleading when viewed as a whole.
Sanya also argued that the Government breached the plea
agreement
amount

of

because
loss

agreement.

it

introduced

exceeding

that

evidence

and

stipulated

to

argued
in

for

the

an

plea

Sanya’s statement of facts in the plea agreement

originally stated “hundreds of thousands of dollars” of loss was
involved

and

transactions.

that

Sanya

directed

(J.A. 22, 24).

“hundreds”

of

fraudulent

This quantitative language was

eventually stricken from the agreement.
Sanya’s argument alleges that the stricken language in the
statement of facts bound the Government not to argue that Sanya
was involved with hundreds of thousands of dollars of loss and
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hundreds of fraudulent transactions.
case.

This is simply not the

In fact, the plea agreement contemplated the Government’s

ability to advocate for losses in excess of $400,000, and stated
the Government had the right to bring to the court’s attention
all

relevant

information

regarding

Sanya’s

conduct.

The

Government in fact did argue for losses over $400,000, without
objection by trial counsel that it was in violation of the plea
agreement.

This argument is patently frivolous.

In summary,

after reviewing the entirety of the record at resentencing, we
are not convinced that the court plainly erred in considering
the contested testimony and transactions on the spreadsheets.
There is no false or misleading testimony or violation of the
plea agreement evident in the record when viewed as a whole.
Thus, we find no plain error on these related arguments.
Next,

we

consider

the

reasonableness

of

the

sentence

imposed for the conspiracy to commit access device fraud.

This

court

just

reviews

outside,

or

any

significantly

reasonableness,
standard.”

criminal

“under

sentence,

outside
a

the

“whether
Guidelines

deferential

inside,
range,”

for

abuse-of-discretion

United States v. King, 673 F.3d 274, 283 (4th Cir.

2012); see Gall v. United States, 552 U.S. 38, 51 (2007).

The

first step in procedural reasonableness review is to evaluate
the district court’s Sentencing Guidelines calculations.
552

U.S.

at

51.

With

regard
6

to

the

calculation

Gall,
of

the

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Guidelines range, we “review the [sentencing] court’s factual
findings for clear error, its legal conclusions de novo, and
unpreserved

arguments

for

plain

error.”

United

States

v.

Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (internal citations
omitted).
Sanya

only

challenges

the

calculation

of

loss.

The

sentencing court “need only make a reasonable estimate of the
loss.”

USSG § 2B1.1 cmt. n.3(C); see United States v. Keita,

742 F.3d 184, 192 (4th Cir. 2014) (recognizing that the loss
amount

“need

quotation

not

marks

be

determined

omitted)).

We

with

precision”

conclude

that

the

(internal
court

was

justified in relying upon the Government’s loss spreadsheets.
As

Mengedoht’s

Limnios

testimony

spreadsheet

revealed,

could

in

video/photographic evidence.

some

every
way

transaction

be

linked

to

on

the

direct

In the vast majority of instances,

Detective Mengedoht had direct video evidence of Limnios (or one
of the known conspirators) using a stolen credit card number.
In the remainder of the transactions, where he did not have
direct video evidence of the particular fraudulent transaction
conducted by Limnios, the detective did have direct evidence of
one of the conspirators using that particular stolen account
number at a different time.
This court’s decision in United States v. Keita is soundly
controlling in this case.

The facts of Keita are significantly
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similar to the facts of this case regarding loss.
jury

convicted

credit

card

the

and

defendant

debit

card

of

various

fraud.

742

In Keita, a

charges
F.3d

related

to

186.

At

at

sentencing, the investigating detective produced a spreadsheet
detailing Keita’s fraudulent transactions, “including the dates,
the

locations,

the

credit

card

numbers

used,

the

amounts

charged, and the banks associated with the credit card numbers.”
Id. at 192.
showed

The detective “noted that videotape surveillance

[Keita]

transactions,

conducting

and

that

many

other

of

losses

the
were

listed
traced

fraudulent
through

the

stolen credit card information found on [Keita’s] laptops.”

Id.

As this Court observed: “Regardless, each loss attributed to
Defendant was ultimately supported by videotape evidence; [as
the

detective]

explained,

‘[i]f

I

had

no

video

of

the

transaction and I could not associate that credit card number
with one where we did have [video], then I . . . didn’t count it
and did not put it on the spreadsheet.’”

Id.

Here, as in Keita, the losses attributed to Sanya on the
Limnios spreadsheet reflected transactions captured on video, or
transactions

associated

with

investigators did have video.

credit

card

numbers

where

On the record at resentencing, we

conclude that the loss amount is established by a preponderance
of the evidence.

The court did not abuse its discretion in

imposing the sentence.
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Next, we turn to the Anders challenge to Sanya’s sentence
for

the

access

convictions.

device

fraud

and

aggravated

identity

theft

First, counsel raises and immediately rejects the

question of whether a factual basis supported the guilty plea
because Sanya admitted the factual basis for his plea.
sentence

of

calculated

57

months

Sentencing

on

Count

Guidelines

1

was

within

range.

The

the

Sanya’s
properly

sentence

of

24

months and 1 day imposed on Count 2 is mandated by the statute
and not within the court’s power to vary.
1028A(b)

(prohibiting

courts

from

See 18 U.S.C. §

sentencing

individuals

convicted under this section to probation, imposing concurrent
sentences,

or

reducing

other

sentences

in

light

of

the

conviction under this section).
Sanya agreed with the sentencing recommendation contained
in the PSR.

The sentence imposed by the court tracked the PSR’s

recommendation, except that instead of requiring that the 41
months of the sentence attributable to the underlying conviction
for

violating

18

U.S.C.

§

1029(a)(2)

run

concurrent

to

the

sentence imposed in No. 1:12-CR-00379-TDC-1, the court ordered
that it be run consecutively.
The district court must adequately explain its sentence to
allow the appellate courts to engage in a meaningful review.
Gall, 552 U.S. at 51.

The district court’s explanation of the

sentence imposed was adequate.

The court specifically explained
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why

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it

is

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imposing

a

sentence.

The
that

a

consecutive

court’s

requirement

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reasoning

sentencing

rather

than

satisfied

court

not

concurrent

the

procedural

expressly

reject

a

policy articulated by Congress or the Sentencing Commission or
consider an improper basis when imposing a sentence.
States

v.

Moreland,

437

F.3d

424,

434

(4th

See United
Cir.

2006).

Accordingly, it does not appear that the court committed any
error in imposing a 57-month term of imprisonment on Count 1 and
a 24 months and 1 day term of imprisonment on Count 2, to run
consecutive to the term on Count 1.
The consecutive sentences were proper.

Sentencing judges

“have discretion to select whether the sentences they impose
will run concurrently or consecutively with respect to other
sentences that they impose. . . .”
S. Ct. 1463, 1468 (2012).
“[i]n

any

other

imprisonment,
imposed

the

to

run

case

Setser v. United States, 132

Further, the Guidelines state that

involving

sentence

for

concurrently,

an

the

undischarged
instant

partially

term

of

may

be

offense

concurrently,

or

consecutively to the prior undischarged term of imprisonment.”
USSG

§

5G1.3(d).

The

Guidelines

provision

calling

for

a

required concurrent rather than consecutive sentences does not
govern here.
concurrent

See id. § 5G1.3(b) (requiring that a sentence run

to

undischarged

the

undischarged

sentence

“resulted
10

term

of

imprisonment

from

another

offense

if
that

the
is

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relevant conduct to the instant offense of conviction under the
provisions

of

subsections

(a)(1),

(a)(2),

or

(a)(3)

of

§ 1B1.3”).
Sanya did not object when the PSR concluded that § 5G1.3(d)
rather than § 5G1.3(b) applied.

Further, “given the advisory

nature of the Sentencing Guidelines, a district court has no
obligation to impose a concurrent sentence, even if § 5G1.3(b)
applies.”
2013).

United States v. Nania, 724 F.3d 824, 830 (7th Cir.

We conclude there is no error in imposing the sentences

consecutively.
Sanya’s Anders brief also suggests that the sentence be
reviewed to determine whether it suffers from vindictiveness for
successfully mounting his first appeal.
.

“Due process of law . .

requires that vindictiveness against a defendant for having

successfully attacked his first conviction must play no part in
the sentence he receives after a new trial.”

North Carolina v.

Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794 (1989).

“When a sentencing court

imposes a more severe sentence on remand, the reasons for the
court doing so must affirmatively appear.”

United States v.

Williams, 444 F.3d 250, 254 (4th Cir. 2006) (internal citations
and quotations omitted).
It

does

vindictive.

not

appear

Although

prior

that
to
11

the
his

sentence
first

imposed

appeal,

the

was
court

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sentenced Sanya to concurrent rather than consecutive terms of
imprisonment, on remand the court chose to impose consecutive
terms of imprisonment rather than concurrent terms.

Sanya’s

total sentence,

to

however,

was

reduced

months and 1 day of imprisonment.
court

explicitly

effect

negate

refused

Sanya’s

to

212

months

171

And, as counsel notes, the

impose

prior

from

a

sentence

appellate

that

victory.

would
Thus

in
the

sentence is not tainted with vindictiveness for succeeding on
his first appeal.
In
record
appeal.

accordance
in

15-4574

with
and

Anders,
have

we

found

have
no

reviewed

meritorious

the

entire

issues

for

We therefore affirm Sanya’s conviction and sentence in

that appeal.

This court requires that Anders counsel inform

Sanya, in writing, of the right to petition the Supreme Court of
the United States for further review.

If Sanya requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on Sanya.

We also affirm

Sanya’s judgment in 15-4306.
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.
AFFIRMED
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