Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-11-2002

USA v. Mohamed Youla
Precedential or Non-Precedential:

Docket 99-5151




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"USA v. Mohamed Youla" (2002). 2002 Decisions. Paper 13.
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NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                              No. 99-5151


                       UNITED STATES OF AMERICA

                                  v.

               MOHAMED YOULA, a/k/a Mohamed Fofana

                            Mohamed Youla,
                                     Appellant


          On Appeal from the United States District Court
                    for the District of Delaware
                   (D.C. Crim. No. 98-cr-00106-1)
              District Judge: Hon. Murray M. Schwartz


                       Argued December 18, 2001

Before:   SLOVITER, McKEE, Circuit Judges, and DEBEVOISE, District Judge

                      (Filed: January 11, 2002)


                     Joseph R. Donahue      (ARGUED)
Brickfield & Donahue
River Edge, New Jersey 07661

     Attorney for Appellant

Richard G. Andrews
     United States Attorney
                    Edmond Falgowski        (ARGUED)
     Assistant United States Attorney
Wilmington, Delaware 19899-2046

     Attorneys for Appellee


                   MEMORANDUM OPINION OF THE COURT


SLOVITER, Circuit Judge.
     Mohamed Youla appeals from the judgment of sentence.     After
indictment in the
United States District Court for the District of Delaware, Youla pleaded
guilty to social
security number fraud in violation of 42 U.S.C.   408(a)(7)(B) (Supp.
2001) and 18
U.S.C.   2 (2000). His appeal challenges the District Court's calculation
of loss and its
failure to apply   2X1.1 of the U.S. Sentencing Guidelines Manual (1998).
We will
affirm.
     The District Court had jurisdiction under 18 U.S.C.   3231. This
court has
jurisdiction pursuant to 28 U.S.C.   1291 and 18 U.S.C.   3742(a).
                               I.
     Youla first argues that the District Court erred by calculating the
loss value as the
aggregate credit limit on the credit cards he and his coconspirators
attempted to acquire.
This court reviews findings of facts under a clearly erroneous standard.
See, e.g., United
States v. Hillstrom, 

, 450 (3d Cir. 1993). We give plenary
review to a
district court's interpretation of the sentencing guidelines, including a
district court's
assessment of what constitutes a "loss." United States v. Sharma, 

, 226 (3d
Cir. 1999).
     In February of 1998, Youla attempted to purchase credit cards through
"Moe," an
FBI informant. Moe purported to have a relative who worked for a bank and
could
acquire the cards, but would only engage in a transaction for a minimum of
twenty cards.
Although Youla never actually purchased the credit cards, apparently
because he
suspected that Moe was connected with law enforcement, Youla did organize
the
requisite number of buyers, agreed to the transaction, and provided Moe
with sufficient
names and social security numbers of prospective card purchasers (8 false
and 12
authentic) to meet the twenty card order minimum. Each of the buyers was
willing to pay
at least $1,000 per card. Youla and Mara, one of his confederates, met
with Moe and his
"relative," an FBI agent, who showed them twenty credit cards which Moe
had procured
using the information provided by Youla and his group. Youla and Mara
sampled one of
the credit cards, and agreed to meet with Moe the following day to
complete the
transaction. Neither Youla nor Mara appeared.
     The District Court calculated the loss from the social security
number fraud by
summing the credit limits of those cards acquired using false social
security numbers.
Each of the cards had a credit limit of $50,000. Multiplying $50,000 by
eight, the
number of cards which depended on false social security numbers, the
District Court set
the amount of loss at $400,000.
     Youla argues he should not be held responsible for the false social
security card
numbers provided by others. Under    1B1.3(a) of the Sentencing Guidelines
Manual
conduct relevant to determining the Guideline range includes, "all acts
and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or
willfully
caused by the defendant," including "all reasonably foreseeable acts and
omissions of
others in furtherance of a jointly undertaken criminal activity,"
1B1.3(a)(1)(A)-(B), and
"all harm that was the object of such acts and omissions,"   1B1.3(a)(3).
     The District Court found that it was foreseeable to Youla that those
involved in
the scheme would use false social security numbers to obtain credit cards.
Youla himself
provided a false social security number, and one of his confederates
described how to
obtain false identification. The District Court's finding was not
erroneous.
     Youla also argues that the District Court erred in determining that
he and his
confederates intended to exhaust the credit limits of the cards. This
court's recent
opinion in United States v. Geevers, 

(3d Cir. 2000), is
instructive on the
permissible inferences and burden of proof on determining intended loss.
In that case,
we held "that it is not an error of law for a court to draw inferences
from the face value of
the checks in arriving at the factual conclusion that the defendant
intended to [withdraw
all the funds.]" 

     We also described the burden of proof for calculating the loss in
these
circumstances. Following a prima face showing by the government that "the
defendant
intended to cause the full loss of those amounts," the burden shifts to
the defendant to
present "persuasive evidence . . . that his intent was to steal a lesser
amount." 

     The District Court's determination that Youla and his associates
intended to
exhaust the credit limits on the cards they acquired was not clearly
erroneous. Youla
claims he intended to repay the credit card debt he incurred, but before
he was caught
Youla characterized the purchase of the credit cards as a potentially
lucrative business.
Youla described the scheme to a potential participant in terms of the
credit limit,
demonstrating his expectation that his cohorts would exhaust their cards.
The fact that
the social security numbers were false belies any intent by Youla and his
confederates to
repay the debts incurred. In fact, in Youla's presence, one of his
confederates explicitly
expressed an intent to exhaust the credit limits of the cards he would
acquire.
     Youla attempts to distinguish Geevers on the grounds that Geevers'
fraud required
more effort, Geevers partially succeeded, and Youla withdrew from the
scheme. The
District Court did not err in determining Youla failed to consummate the
scheme because
of his concerns about being apprehended by the authorities, not because he
intended to
withdraw from the criminal activity. The remaining differences are
insufficient to
distinguish Geevers.
                               II.
     Youla's second argument on appeal is that the District Court erred by
failing to
reduce Youla's offense level under     2X1.1 of the Sentencing Guidelines.
Section
2X1.1 provides for a reduction of three guideline points for attempts.
U.S. Sentencing
Guidelines Manual    2X1.1(b)(1) (1998). Youla argues that because he
never completed
his purchase of the credit cards, he should enjoy the benefits of     2X1.1.
Although a
motion panel denied Youla's trial counsel's Anders motion because it
determined that
Youla's    2X1.1 argument was not frivolous, see United States v. Youla,

,
301-02 (3d Cir. 2001), Youla's     2X1.1 argument fails on the merits. In
Geevers, the
defendant claimed that because he had only attempted to commit bank fraud,
the
sentencing court erred by not reducing his guideline points pursuant to
2X1.1. As a
threshold inquiry to evaluating his claim, we inquired whether the
defendant pleaded
guilty to an attempt or to the substantive offense. We reached the
2X1.1 issue only
after concluding it was unclear "from the record whether Geevers should be
viewed as
having pleaded guilty solely to a completed crime or an attempt."

. Our confusion rested in part on the bank fraud statute under which
Geevers was
convicted. That statute, 18 U.S.C.    1344, contains both substantive
offense and attempt
provisions.
     Here there is no such confusion. Youla pleaded guilty to social
security number
fraud under 42 U.S.C.   408(a)(7)(B) and 18 U.S.C.   2, neither of which
contains an
attempt provision. Youla did not plead guilty to attempted social
security number fraud.
The elements for a violation of 42 U.S.C.   408(a)(7)(B) include (1)
giving a false social
security number, (2) represented as a true number, (3) with intent to
deceive, (4) for the
purpose of obtaining some benefit to which the defendant is not entitled.
Youla pleaded
guilty to this offense, effectively conceding he completed all elements,
and the evidence
supports his plea. A reduction under    2X1.1 is not available.
                              III.
     For the reasons set forth, we will affirm the judgment of sentence of
the District
Court.

___________________

TO THE CLERK:

          Please file the foregoing opinion.



                           /s/ Delores K. Sloviter
                          Circuit Judge