Case: 14-15066    Date Filed: 07/10/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                         No. 14-15066; 14-15067
                         Non-Argument Calendar
                       ________________________

        D.C. Docket Nos. 1:13-cr-20803-WJZ-1; 0:14-cr-60145-WJZ-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                  versus

EMMANUEL A. ADEIFE,

                                                          Defendant-Appellant.

                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                       ________________________

                               (July 10, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Emmanuel Adeife pleaded guilty to one count of access device fraud, in

violation of 18 U.S.C. § 1029(a)(2), one count of aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1), and one count of failure to appear, in

violation of 18 U.S.C. § 3146(a)(1).1 Adeife appeals his total seventy-six-month

upward variance sentence. On appeal, he contends that the district court erred in

applying a four-level sentencing enhancement because its finding that the offense

involved more than fifty victims was clearly erroneous. Adeife further argues that

his seventy-six-month term of imprisonment is both procedurally and substantively

unreasonable since the district court failed to adequately explain why it deviated

upward from the Guidelines.

       After a thorough review of the record and the parties’ briefs, we conclude

that the district court’s factual finding with regard to its calculation of the number

of victims was not clearly erroneous, and, therefore, the district court did not err in

applying the four-level enhancement. However, because the district court imposed

a sentence above the Guidelines without adequate explanation, despite announcing

its intent to impose a sentence within the Guideline range, we vacate Adeife’s

seventy-six-month sentence and remand for further clarification and resentencing.




       1
         This appeal arises from two separate criminal prosecutions, with separate indictments,
that were consolidated for purposes of appeal.
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                                          I.

      The district court’s interpretation and application of the Guidelines is

reviewed de novo, and its calculation of the number of victims is reviewed for

clear error. United States v. Rodriguez, 

, 1305 (11th Cir. 2013).

Although estimations are permitted, the district court is prohibited from

speculating about the existence of a fact that would yield a more severe sentence.

Guidelines provide for a four-level enhancement if the offense

involved fifty or more but fewer than 250 victims. U.S.S.G. § 2B1.1(b)(2)(B)–(C).

For sentencing enhancement purposes, a “victim” is defined as “any person who

sustained any part of the actual loss.” § 2B1.1 cmt. n.1. However, when a case

involves a means of identification, a victim is also defined as “any individual

whose means of identification was used unlawfully or without authority.” § 2B1.1

cmt. n.4(E)(ii).

      Here, Adeife admitted that he filed 112 fraudulent Social Security retirement

benefit claims using the identities of real people without their authorization. We

acknowledge that Adeife was only successful in receiving payment on forty-five of

those claims. However, the fact that he did not receive payment on all 112 claims

is of no moment because the mere unlawful use of a means of identification or its

use without authorization is sufficient to convert an individual into a victim for

enhancement purposes. See § 2B1.1 cmt. n.4(E)(ii). Therefore, Adeife’s claim


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that these individuals were not victims within the meaning of Application Note

4(E)(ii), simply because he was unsuccessful in receiving payments on every

claim, is without merit. Accordingly, the district court’s finding of fact that the

offense involved 112 victims was not clearly erroneous, and, therefore, its

application of the four-level enhancement was appropriate.

                                           II.

      Adeife also argues that his sentence is procedurally and substantively

unreasonable.

      Here, the district court explicitly stated that it found “no reason to depart or

vary from the sentence called for by the guidelines” and that the sentence it

imposed was “within the advisory guideline range.” The calculated Guideline

range was sixty-five to seventy-five months’ imprisonment, and both parties

requested a sentence within the Guidelines. Despite unequivocally declaring its

intent to impose a sentence within the guidelines, the district court sentenced

Adeife to seventy-six months’ imprisonment, which is not a sentence within the

guidelines range. The seventy-six month sentence is in direct conflict with the

district court’s expressed, unequivocal intention to sentence Adeife within the

Guidelines. See 

appears that the district court did not intend to

impose an above Guidelines sentence, we vacate Adeife’s sentence and remand to

the district court for further clarification and resentencing. Finally, because it is


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necessary to first cure this error, we do not reach the issue of whether Adeife’s

sentence was substantively reasonable. United States v. Barner, 

,

1253 (11th Cir. 2009).

      AFFIRMED in part; VACATED and REMANDED in part.




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