Filed: Sep. 01, 2016
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-3195 _ UNITED STATES OF AMERICA v. ADDO OBENG, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-13-cr-00673-001) District Judge: Honorable Robert B. Kugler _ Submitted Under Third Circuit L.A.R. 34.1(a) March 3, 2016 Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges. (Opinion Filed: September 1, 2016) _ OPINION* _ * This disposition is not an opinion
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-3195 _ UNITED STATES OF AMERICA v. ADDO OBENG, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-13-cr-00673-001) District Judge: Honorable Robert B. Kugler _ Submitted Under Third Circuit L.A.R. 34.1(a) March 3, 2016 Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges. (Opinion Filed: September 1, 2016) _ OPINION* _ * This disposition is not an opinion o..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-3195
____________
UNITED STATES OF AMERICA
v.
ADDO OBENG,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-13-cr-00673-001)
District Judge: Honorable Robert B. Kugler
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 3, 2016
Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges.
(Opinion Filed: September 1, 2016)
____________
OPINION*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
McKEE, Chief Judge.
Addo Obeng appeals the district court’s imposition of three, two-level sentencing
enhancements applied to his conviction for conspiring to transport stolen motor vehicles
overseas. For the following reasons, we will affirm the judgment of the district court.
I
In October 2013, Addo Obeng, a native of Ghana and legal permanent resident of
the United States, pleaded guilty to conspiring to transport stolen motor vehicles
overseas, in violation of 18 U.S.C. § 2312 and 18 U.S.C. § 371. Obeng was one of six
individuals who were charged with trafficking carjacked and otherwise stolen vehicles to
West Africa. Obeng acted as an exporter of stolen vehicles from Port Newark/Elizabeth
to customers in Africa, purchasing the vehicles from large scale “fences.” The trafficking
ring was a multi-tiered operation that employed street level carjackers/thieves, fences,
“runners” (who drove the cars to secure locations during a “cooling off” period),
“retaggers” (who changed VINs and obtained counterfeit titles), and exporters like Obeng
(who obtained fraudulent documentation and facilitated the shipping process).
In the plea agreement, the parties agreed that Obeng’s total offense level was 15,
and that the parties would not argue for any upward or downward departure, adjustment
or variance not set forth in the plea agreement. However, Obeng’s presentence report
concluded that four additional two-level sentencing enhancements were appropriate
2
because the offense (1) involved 10 or more victims,1 (2) involved being in the business
of receiving and selling stolen property,2 (3) employed sophisticated means,3 and (4)
involved the conscious or reckless risk of death or serious bodily injury and possession of
a dangerous weapon.4 The presentence report recommended a total offense level of 23.
At Obeng’s sentencing hearing, the district court decided to exercise its
“independent obligation” to determine Obeng’s offense level, as opposed to merely
accepting either the recommendations in the plea agreement or the presentence report.
App. 22-23 The district court rejected the presentence report’s recommended
enhancement of two points for the risk of death or serious bodily injury and ultimately
arrived at an offense level of 21. This correlated with a recommended sentencing range
of 41 to 51 months’ imprisonment. Obeng was sentenced to 48 months imprisonment,
three years supervised release, and he was ordered to pay $102,403.86 in restitution.
Obeng appeals.
II.5
Obeng challenges the applicability of the various sentencing adjustments used to
calculate his ultimate Guidelines range. We exercise plenary review over the district
1
See U.S.S.G. § 2B1.1(b)(2)(A)(i).
2
See U.S.S.G. § 2B1.1(b)(4).
3
See U.S.S.G. § 2B1.1(b)(10).
4
See U.S.S.G. § 2B1.1(b)(15).
5
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
court’s interpretation of the Guidelines,6 but we review for clear error the factual findings
used by the District Court to support the application of a sentencing adjustment.7
III.
Obeng first challenges the district court’s adoption of the presentence report’s
conclusion that there were ten or more victims of Obeng’s crimes. Pursuant to U.S.S.G.
§ 2B1.1(b)(2)(A)(i), if a defendant’s offense involves ten or more victims, the
defendant’s offense level is raised by two points. The Application Notes to § 2B1.1
define “victim” as “any person who sustained any part of the actual loss” or “any
individual who sustained bodily injury as a result of the offense.”8
Here, the presentence report documented at least ten stolen vehicles that it could
directly link to Obeng’s activities.9 Obeng did not object to the facts presented by the
presentence report. We have long held that “[a] conclusion in the presentence
investigation report which goes unchallenged by the defendant is, of course, a proper
basis for sentence determination.”10 We are unpersuaded by Obeng’s argument that the
district court ought to have only considered conduct that he admitted to in the plea
agreement. The Sentencing Guidelines themselves state that courts are not bound by the
6
See United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc).
7
United States v. Fish,
731 F.3d 277, 279 (3d Cir. 2013).
8
U.S.S.G. § 2B1.1(b)(2)(A)(i) cmt. n.1.
9
These ten vehicles included a 2009 Mercedes ML350, PSR ¶ 45, a 2009 Toyota Corolla,
PSR ¶¶ 50, 54, a 2011 Acura RDX, PSR ¶¶ 50, 54, a 2011 Jaguar FX, PSR ¶¶ 58, 62, a
2010 Mercedes GL450, PSR ¶ 66, a 2010 Mercedes E350, PSR ¶ 66, a 2009 BMW750,
PSR ¶ 63, a 2011 Land Rover Range Rover, PSR ¶¶ 64, 78-79, a 2007 Toyota RAV-4,
PSR ¶¶ 74, 78-79, and a 2009 Honda Accord, PSR ¶¶ 77-79.
10
United States v. McDowell,
888 F.2d 285, 290 n.1 (3d Cir. 1989).
4
stipulations in plea agreements but may instead rely in part on the presentence report to
“determine the facts relevant to sentencing.”11 The district court therefore did not clearly
err in applying the two-level sentencing enhancement under U.S.S.G.
§ 2B1.1(b)(2)(A)(i).
Next, Obeng appeals the district court’s imposition of a two-level enhancement for
being in the business of receiving and selling stolen property under U.S.S.G.
§ 2B1.1(b)(4) because he claims that his involvement was limited to the receipt and
transport of only two stolen vehicles.12 When determining whether a defendant was in
the business of selling and receiving stolen property, courts consider, among other things,
(A) the regularity and sophistication of the defendant’s activities; (B) the value and size
of the inventory of stolen property maintained by the defendant; (C) the extent to which
the defendant’s activities encouraged or facilitated other crimes; and (D) the defendant’s
past activities involving stolen property.13
In United States v. Fofanah,14 another stolen vehicle trafficking case, the Court
imposed a two-level sentencing enhancement under § 2B1.1(b)(4). The court held that
Fofanah was in the business of receiving and selling stolen property due to the number of
11
U.S.S.G. § 6B1.4; see also United States v. Ketcham, 80 F.3d 789, 792 n.6 (3d Cir.
1996).
12
Section 2B1.1(b)(4) of the Guidelines provides that: “If the offense involved receiving
stolen property, and the defendant was a person in the business of receiving and selling
stolen property, increase by 2 levels.” It is undisputed that Obeng’s offense involved
receiving stolen property.
13
See U.S.S.G. § 2B1.1, cmt. n.5.
14
765 F.3d 141 (2d Cir. 2014).
5
vehicles involved (17) as well as other indications that Fofanah was a “repeat player” in
the stolen vehicle business.15 Here, Obeng has been directly linked to no less than 10
stolen vehicles. Obeng’s presentence report also sets forth uncontested facts as well as
accounts from a confidential source indicating that Obeng had been in the business of
receiving and selling stolen cars.16 The presentence report indicates a high level of
sophistication and coordination among multiple parties, including Obeng. Moreover, the
vehicles stolen included luxury vehicles with relatively high values, and undisputed facts
in the presentence report indicate that Obeng not only received them but also sold them
overseas.17 Accordingly, the district court did not clearly err when it imposed the two-
level enhancement under § 2B1.1(b)(4).18
Finally, Obeng appeals the district court’s imposition of a two-level enhancement
for the use of sophisticated means.19 Section 2B1.1(b)(10) states, in relevant part, that if
“the offense otherwise involved sophisticated means and the defendant intentionally
engaged in or caused the conduct constituting sophisticated means, increase by 2 levels.”
Application Note 9(B) defines sophisticated means as “especially complex or especially
intricate offense conduct pertaining to the execution or concealment of an offense,” and
further provides that “[c]onduct such as hiding assets or transactions . . . through the use
15
Id. at 147-48.
16
PSR ¶¶ 33, 43, 44, 47, 54.
17
Id. ¶¶ 44, 47, 54.
18
See U.S.S.G. § 2B1.1, cmt. n.5.
19
See U.S.S.G. § 2B1.1(b)(10).
6
of fictitious entities . . . ordinarily indicates sophisticated means.”20 We agree with
Obeng’s general assertion that sentencing courts must conduct “a searching and
individualized inquiry into the circumstances surrounding each defendant’s involvement
in the conspiracy.”21
Here, the district court conducted just such an inquiry. In determining that
Obeng’s offense employed sophisticated means, the district court observed,
And there’s no question sophisticated means were used, and particularly by
this defendant who had some experience in the shipment of these
automobiles overseas. It’s not easy to put this [sort of operation] together.
Various levels that were involved in the theft on the street of the homes of
the victims, getting them in a position where they’re driven into the
containers and loaded on a ship. That is sophisticated. So I think that two
level increase is justified by a preponderance of the evidence.22
Obeng himself does not contest the overall sophistication of the international scheme in
which he was involved. He only argues that his involvement was so minimal that it
cannot be deemed sophisticated. As is obvious from our brief summary of the facts, his
argument is negated by the record. The record shows that Obeng relocated stolen cars
from one storage facility to another to avoid detection by the authorities.23 Some of the
cars that Obeng shipped and sold overseas traveled in a shipping container under
fraudulent paperwork.24 Further, the company name that was used to ship some of the
20
U.S.S.G. § 2B1.1 cmt. n.9(B).
21
United States v. Evans, 155 F.3d 245, 254 (3d Cir. 1998) (internal quotations and
citation
omitted).
22
Ohio App. at 22-23 (emphasis added).
23
PSR ¶ 62.
24
Id. ¶¶ 53, 54.
7
cars was not registered with the Federal Maritime Commission.25 These facts point to
sophisticated attempts to conceal the stolen vehicles. Accordingly, the district court did
not clearly err when it determined that Obeng used sophisticated means to commit his
offense.26
We note that Obeng does not argue on appeal that his sentence was substantively
unreasonable. “It is well settled that if an appellant fails to comply with these
requirements on a particular issue, the appellant normally has abandoned and waived that
issue on appeal and it need not be addressed by the court of appeals.”27 We therefore
decline to address the substantive reasonableness issue.
IV.
For the reasons stated, we will affirm the judgment of sentence. We also note that
Obeng requests permission to represent himself and file an amended brief. These
requests are hereby denied.
25
PSR ¶ 52.
26
See U.S.S.G. § 2B1.1(b)(10).
27
Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
8
