Filed: Jan. 05, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5031 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT M. OTISO, a/k/a Robe, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:09-cr-00251-2) Submitted: December 22, 2011 Decided: January 5, 2012 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublish
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5031 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT M. OTISO, a/k/a Robe, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:09-cr-00251-2) Submitted: December 22, 2011 Decided: January 5, 2012 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublishe..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5031
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT M. OTISO, a/k/a Robe,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:09-cr-00251-2)
Submitted: December 22, 2011 Decided: January 5, 2012
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West Virginia,
for Appellant. R. Booth Goodwin II, United States Attorney,
Susan M. Robinson, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert M. Otiso appeals his conviction and seventy-
two-month sentence after pleading guilty without a plea
agreement to one count of conspiracy to commit mail and wire
fraud, in violation of 18 U.S.C.A. § 1349 (West 2000 & Supp.
2011). Otiso challenges his sentence on several grounds,
including asserting that the district court erred when it: (1)
calculated the loss amount with which he should be attributed;
(2) increased his offense level and refused to reduce the
offense level based on his role in the conspiracy; and (3)
imposed a substantively unreasonable sentence upon him. Finding
no error, we affirm.
This court reviews a district court’s sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires the court to assess procedural reasonableness by
ensuring that the district court committed no significant
procedural errors, such as improperly calculating the Guidelines
range or failing to consider the 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2011) factors. United States v. Boulware,
604 F.3d
832, 837-38 (4th Cir. 2010). The court must then consider the
substantive reasonableness of the sentence imposed, taking into
account the totality of the circumstances.
Gall, 552 U.S. at
51. A sentence within a properly calculated Guidelines range
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will be presumed reasonable. United States v. Allen, 491 F.3d
178, 193 (4th Cir. 2007).
Otiso challenges the procedural reasonableness of his
sentence. In particular, Otiso asserts that the district court
erred when it calculated the amount of loss with which he should
be attributed because he asserts that only a portion of the loss
was foreseeable to him. According to Otiso, although he knew
there were other fraudulent accounts, he claims he had no
control over them “nor any knowledge of any money being
contained in the accounts.” Factual determinations underlying a
district court’s loss calculations are reviewed for clear error.
United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).
This deferential standard of review requires reversal only if
this court is "left with the definite and firm conviction that a
mistake has been committed." United States v. Stevenson,
396
F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer
City,
470 U.S. 564, 573 (1985)). We have reviewed the record
and conclude that the district court did not clearly err in
attributing $3,379,069.43 of intended loss to Otiso.
Otiso also asserts that the district court erred when
it increased his offense level two levels based on his
leadership role in the conspiracy, and denied his request for a
two-point reduction based on his allegedly minor role in the
conspiracy. According to Otiso, his co-conspirator was the
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conduit for the conspiracy’s masterminds and he exercised no
control over the conspiracy. We review whether the district
court correctly increased Otiso’s offense level based on his
aggravating role in the conspiracy for clear error. United
States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th Cir. 2011).
A defendant qualifies for a two-level enhancement if
he was “an organizer, leader, manager, or supervisor in any
criminal activity.” U.S. Sentencing Guidelines Manual (“USSG”)
§ 3B1.1(c) (2009). In determining a defendant’s leadership
role, “a district court should consider whether the defendant
exercised decision making authority for the venture, whether he
recruited others to participate in the crime, whether he took
part in planning or organizing the offense, and the degree of
control and authority that he exercised over others.” United
States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
“Leadership over only one other participant is sufficient as
long as there is some control exercised.”
Id. We find that
Otiso’s involvement in the conspiracy warranted application of
the two-level enhancement under USSG § 3B1.1(c). See, e.g.,
United States v. Kincaid,
964 F.2d 325, 329 (4th Cir. 1992)
(upholding district court’s § 3B1.1(c) enhancement where
defendant gave another co-conspirator instructions about selling
narcotics).
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Because Otiso’s sentence is within the Guidelines
range calculated at sentencing, his sentence is entitled to the
presumption of reasonableness. Allen, 491 F.3d at 193. In an
apparent attempt to rebut this presumption, however, Otiso
asserts that his sentence is unreasonable because it is greater
than his co-conspirators’ sentences. Because the co-
conspirators either played lesser roles in the conspiracy, did
not participate in the fraud itself, had no Kenyan contacts, did
not open the fraudulent bank accounts, or immediately began
cooperating with law enforcement and benefitted from a
substantial assistance motion, we find that the district court
had legitimate reasons for imposing a greater sentence on Otiso.
Thus, any disparity between Otiso’s and his co-conspirators’
sentences does not render Otiso’s sentence unreasonable. See
United States v. Hall,
977 F.2d 861, 864 (4th Cir. 1992)
(recognizing that disparities in sentences among co-defendants
may occur for a variety of reasons, including more lenient
sentences due to substantial assistance motions and lesser roles
in the crimes for which some are convicted).
We have considered Otiso’s remaining arguments and
find them to be without merit. Accordingly, we affirm the
district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
5
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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