Case: 18-20803      Document: 00515199846         Page: 1    Date Filed: 11/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-20803                        November 14, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OLUSEGUN AKANNI AYODELE, also known as Rickey Thompson,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-575-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       After Olusegun Akanni Ayodele pleaded guilty to passport fraud, the
district court sentenced him to 24 months of imprisonment and three years of
supervised release.       Ayodele now appeals, arguing that his sentence is
procedurally and substantively unreasonable.
       Our first step in reviewing a sentence is to determine whether the
district court committed a procedural error, such as improperly calculating the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-20803

guidelines range or choosing a sentence based on erroneous factfinding. United
States v. Cedillo-Narvaez, 

, 401 (5th Cir. 2014). We review the
district court’s interpretation and application of the Sentencing Guidelines de
novo and its findings of fact, such as loss amount, for clear error. United States
v. Glenn, 

, 430 (5th Cir.), cert. denied, 

(U.S.
Oct. 7, 2019) (No. 19-5670).
      The applicable sentencing guideline for passport fraud offenses, U.S.S.G.
§ 2L2.2, contains a cross-reference instructing that a defendant who used a
passport during the commission of a nonimmigration offense should have his
guidelines offense level calculated by applying U.S.S.G. § 2X1.1 in respect to
the other offense if it results in a greater offense level than the offense level
under § 2L2.2. § 2L2.2(c)(1)(A). Section 2X1.1 instructs that the base offense
level should be “[t]he base offense level from the guideline for the substantive
offense, plus any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty.”          Because the
guideline applicable to theft, receipt of stolen property, and fraud offenses,
U.S.S.G. § 2B1.1, produced a higher offense level than § 2L2.2, the district
court correctly used § 2B1.1 to determine Ayodele’s offense level.
      In doing so, the district court applied a 10-level enhancement under
§ 2B1.1(b)(1)(F) based on its finding that the loss amount was more than
$150,000, but not more than $250,000. Ayodele argues that the district court
should not have applied this enhancement because the actual loss amount was
only $6,500. However, as the district court explained, “[t]he general rule is
that the loss amount is the greater of actual or intended loss,” and the district
court correctly used the intended loss amount, not the actual loss amount.
United States v. Simpson, 

, 557 (5th Cir. 2014).




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                                  No. 18-20803

      Ayodele also argues that the Government failed to prove the loss amount
by a preponderance of the evidence, but he presented no evidence to rebut the
factual information in the presentence report (PSR). The information therein
was “based on a law-enforcement investigation,” and thus the PSR bears
“sufficient indicia of reliability” for the district court to have properly relied
upon it to determine the amount of intended loss. United States v. Dickerson,

, 128 (5th Cir. 2018), cert. denied, 

(2019). “Without
evidence that rebuts the PSR on the loss amount, [Ayodele’s] mere speculation
is insufficient to show that the PSR was unreliable or that the district court
erred in adopting it.” United States v. De Nieto, 

, 676 (5th Cir.
2019) (internal quotation marks and citation omitted).
      Once we have determined that a sentence is procedurally reasonable, we
generally review the substantive reasonableness of the district court’s
sentencing decision for abuse of discretion. 

. However,
Ayodele did not object to his sentence as substantively unreasonable, and we
review such unpreserved claims for plain error. Sealed Appellee v. Sealed
Appellant, 

, 405 (5th Cir. 2019). Ayodele’s claim fails under either
standard.
      “[O]ur highly deferential review of within-Guidelines sentences . . .
requires us to apply a baseline infer[ence] that the [district] judge has
considered all the factors for a fair sentence set forth in the Guidelines.”
United States v. Becerril-Pena, 

, 350 (5th Cir. 2013) (internal
quotation marks and citation omitted). Ayodele’s within-guidelines sentence
is presumptively reasonable, and he can rebut this presumption only by
demonstrating that his “sentence does not account for a [18 U.S.C. § 3553(a)]
factor that should receive significant weight, gives significant weight to an
irrelevant or improper factor, or represents a clear error of judgment in



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                                 No. 18-20803

balancing the sentencing factors.” United States v. Hernandez, 

,
166 (5th Cir. 2017).
      Although Ayodele argues that a lower sentence was warranted due to his
history and characteristics and the nature of the offense, “defendants relying
on such factors essentially ask us to reweigh the sentencing factors, which is
contrary to the presumption that within-Guidelines sentences are reasonable.”
United States v. Martinez, 

, 483 (5th Cir. 2019) (internal quotation
marks and citation omitted).     Ayodele has not shown that his 24-month
sentence was an abuse of discretion, much less a clear or obvious abuse of
discretion amounting to plain error. See United States v. Fuentes, 

, 325 (5th Cir. 2018), cert. denied, 

(2019). As the district
court imposed a sentence that is both procedurally and substantively
reasonable, the judgment of the district court is AFFIRMED.




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