Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-24-2003

USA v. Salawu
Precedential or Non-Precedential: Non-Precedential

Docket 02-2458




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"USA v. Salawu" (2003). 2003 Decisions. Paper 627.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/627


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT




                                     No: 02-2458


                           UNITED STATES OF AMERICA

                                           v.

                                 KAMURO SALAWU,
                                            Appellant


                    On Appeal from the United States District Court
                            for the District of Delaware

               District Court Judge: The Honorable Joseph J. Farnan, Jr.
                            (D.C. Civil No. 99-cr-00062-01)




                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   April 11, 2003

          Before: ALITO, FUENTES, Circuit Judges, PISANO, District Judge*

                            (Opinion Filed: April 23, 2003)




                              OPINION OF THE COURT




      *
      The Honorable Joel A. Pisano, United States District Judge for the District of
New Jersey, sitting by designation.
FUENTES, Circuit Judge:

       Appellant Kamuro Salawu (“Salawu”) appeals his sentence of 41 months

imprisonment for the crime of bank fraud in violation of 18 U.S.C. § 1344. Salawu

argues that the United States District Court for the District of Delaware erred in

enhancing his sentence based on victim loss and his role as a leader or organizer in the

offense. He claims that the findings of fact necessary to enhance his sentence should

have been made by a jury. Because we find that the District Court sentenced Salawu

below the statutory maximum, we affirm the Judgment of June 4, 2002, sentencing

Salawu to 41 months imprisonment.

                                      I. Background

       On August 24, 1999, the Government indicted Salawu on charges of bank fraud

and related crimes. On January 20, 2000, Salawu pleaded guilty to one count of bank

fraud in violation of 18 U.S.C. § 1344. Specifically, the indictment charged Salawu with

executing a scheme to defraud First USA Bank by misappropriating credit card

information. Salawu paid local bank employees to supply him with credit card account

information, which he then used to take over accounts by changing the addresses on the

accounts to addresses that he controlled.

       The pre-sentence report assigned Salawu a base offense level of six points

pursuant to U.S.S.G. § 2F1.1. In addition, he received an enhancement of eleven points

for victim loss under U.S.S.G. § 2F1.1(b)(1) and an enhancement of four points under



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U.S.S.G. § 3B1.1(b) for his role as an organizer or leader in the offense. Salawu objected

to those enhancements.

       At the sentencing hearing on M ay 6, 2002, the District Court denied Salawu’s

objections and sentenced him at an offense level that included the intended loss and

leadership role enhancements. The District Court sentenced Salawu to 41 months

imprisonment. The statutory maximum term of imprisonment for a violation of 18 U.S.C.

§ 1344 is 30 years.

                         II. Jurisdiction and Standard of Review

       The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. §

3231. We exercise jurisdiction under 28 U.S.C. § 1291 over a final decision of a district

court. A district court’s decision on an issue of law is subject to plenary review. United

States v. Barbosa, 

, 452 (3d Cir. 2000).

                                     III. Discussion

       On appeal Salawu challenges the use of facts in the pre-sentence report to enhance

his sentence because those facts were not found by a jury beyond a reasonable doubt. He

argues that because he only pleaded guilty to one count of the indictment, the District

Court should not have considered conduct underlying the remaining four counts in

enhancing his sentence.2



       2
              The Government argues that Salawu failed to properly raise this issue
before the District Court. We assume for purposes of this appeal that the issue was
properly presented to the District Court.

                                             3
       In United States v. Barbosa, 

(3d Cir. 2001), we recognized that the

Supreme Court has emphasized the distinction between a “sentencing factor,” an item

considered by the judge in imposing a sentence, and an “element” of a crime, an item that

must be found by the jury in order to convict. See 

(citing McMillan v.

Pennsylvania, 

, 85-86 (1986)). We also stated that the Supreme Court neither

overruled McMillan nor rendered the term “sentencing factor” devoid of meaning in

Apprendi v. New Jersey, 

(2000). See 

(citations

omitted).   As a result, “a court may still consider aggravating and mitigating factors that

support a specific sentence within the statutorily prescribed range when sentencing a

defendant, so long as the sentence imposed is not greater than the maximum statutory

penalty for the statutory offense established by the jury’s verdict.” 

530 U.S. at 483 n.10).

       Though Salawu was not convicted by a jury, he pleaded guilty to one count of

bank fraud in violation of 18 U.S.C. § 1344. Thus, in imposing a sentence, the District

Court was permitted to consider aggravating and mitigating factors that supported a

specific sentence within the statutorily prescribed range. The statutory maximum term of

imprisonment for a violation of 18 U.S.C. § 1344 is 30 years. After including sentencing

enhancements based on the intended victim loss and Salawu’s role as an organizer or

leader in the offense, the District Court sentenced Salawu to 41 months imprisonment.

Because the District Court sentenced Salawu to a term of imprisonment below the



                                              4
maximum statutory penalty, it was not necessary that a jury conclude that the facts

considered in enhancing the sentence were proven beyond a reasonable doubt. The

District Court properly sentenced Salawu to 41 months imprisonment.

                                      IV. Conclusion

         Accordingly, for the reasons stated above, we affirm the judgment of the District

Court.




_____________________________




                                                         /s/ Julio M. Fuentes
                                                         Circuit Judge




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