Filed: Jul. 29, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4210 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BOLARINWA ANDREW ADEYALE, a/k/a Bola, Defendant – Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District Judge. (8:10-cr-00596-DKC-2) Argued: May 14, 2014 Decided: July 29, 2014 Before WILKINSON, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4210 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BOLARINWA ANDREW ADEYALE, a/k/a Bola, Defendant – Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District Judge. (8:10-cr-00596-DKC-2) Argued: May 14, 2014 Decided: July 29, 2014 Before WILKINSON, AGEE, and DIAZ, Circuit Judges. Affirmed by unpublished opinion. Judge Diaz wrote the opinion, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4210
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOLARINWA ANDREW ADEYALE, a/k/a Bola,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00596-DKC-2)
Argued: May 14, 2014 Decided: July 29, 2014
Before WILKINSON, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Agee joined.
ARGUED: Robert Whelen Biddle, NATHANS & BIDDLE, LLP, Baltimore,
Maryland, for Appellant. Margaret Amalia Moeser, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Booth M. Ripke, NATHANS & BIDDLE, LLP, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Robert K. Hur, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
A jury convicted Bolarinwa Andrew Adeyale of one count of
conspiracy to commit bank fraud, two counts of substantive bank
fraud, and one count of aggravated identity theft for his
participation in a scheme to defraud Bank of America. The
district court sentenced Adeyale to 84 months’ imprisonment.
Adeyale raises four issues on appeal. First, he contends
that the government presented insufficient evidence to convict
him of aggravated identity theft. Second, Adeyale argues that
the district court erred in admitting certain summary testimony.
Third, he contends that the district court erred in declining to
dismiss at least one substantive bank fraud count as
multiplicitous. Finally, he argues that the district court
imposed a substantively unreasonable sentence. We affirm the
district court’s judgment.
I.
On appeal from a criminal conviction, we view the facts in
the light most favorable to the government. United States v.
Washington, 743 F.3d 938, 940 (4th Cir. 2014).
2
A.
Starting in late 2007, Adeyale and several coconspirators
implemented a scheme to defraud Bank of America. 1 This scheme
involved multiple steps. First, members of the conspiracy stole
credit card convenience checks 2 from residential mailboxes in
affluent Maryland and Washington, D.C. neighborhoods. Second,
they paid local college students for access to their Bank of
America accounts. The student account holders provided their
account numbers, ATM cards, and PINs for this purpose. Third,
Adeyale and his coconspirators recruited other student “runners”
to deposit the checks into the compromised accounts and to
withdraw the funds before the bank realized that the checks were
stolen.
The government indicted Adeyale for his role in the scheme
in September 2010. Subsequently, in a superseding indictment,
the government charged Adeyale with one count of conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349; six counts
of substantive bank fraud, in violation of 18 U.S.C. § 1344; and
1
We previously discussed this scheme in an appeal by one of
Adeyale’s coconspirators. See generally United States v. Otuya,
720 F.3d 183 (4th Cir. 2013), cert. denied,
134 S. Ct. 1279
(2014).
2
A credit card convenience check is an instrument issued to
a bank customer that is linked to a credit card as opposed to a
checking account.
3
one count of aggravated identity theft, in violation of 18
U.S.C. § 1028A. The conspiracy count was based on Adeyale’s
role in the overarching bank fraud scheme. Relevant to this
appeal, two of the substantive bank fraud counts, Counts Five
and Six, involved $5,000 and $600 withdrawals from a Bank of
America account belonging to Courtney Smith.
Before trial, Adeyale moved to dismiss Counts Two through
Six as multiplicitous because they involved withdrawals or
deposits from the same bank account, which belonged to Smith.
The government acknowledged that Counts Two and Three were
multiplicitous, and those counts were dismissed. The district
court reserved ruling on Adeyale’s pretrial motion as to Counts
Four through Six.
B.
At trial, the government presented testimony from other
participants in the scheme, including Smith, Charles Richardson,
and Madonna Campbell. Their testimony related to both the
overarching scheme and specific transactions.
Richardson testified about his role in the scheme after
Adeyale recruited him. In addition to acting as a runner,
Richardson convinced several students to give him their Bank of
America account information, ATM cards, and PINs so that the
conspirators could access their accounts. He testified that he
gave the cards and information to Adeyale, who paid Richardson
4
from the proceeds of the scheme. Richardson further explained
that one of the student account holders whom he recruited was
Courtney Smith. Richardson gave Adeyale Smith’s account
information, ATM card, and PIN. A few days later, Adeyale
instructed Richardson to have Smith withdraw funds from her
account. Richardson arranged for Smith to meet Adeyale, who
then drove Smith, Richardson, and Campbell to a Bank of America
branch. Richardson testified that Adeyale returned Smith’s ATM
card and directed her to make a withdrawal. Smith withdrew
$5,000 from her account and gave the funds to Adeyale.
Smith’s testimony confirmed that she gave Richardson her
ATM card and PIN. She also testified that she made the $5,000
withdrawal from her account. But she stated, in contradiction
to Richardson’s testimony, that neither Adeyale nor anyone else
returned her ATM card before she made the withdrawal. Instead,
she stated that she obtained a new, temporary ATM card once
inside the bank.
Like Richardson, Campbell testified that Adeyale recruited
her. She explained that Adeyale gave her Smith’s ATM card and
PIN and instructed Campbell to make a withdrawal. Campbell
stated that the ATM card did not work; other evidence, however,
contradicted this statement and connected her to the $600
withdrawal. Campbell also testified that she later returned the
card to Adeyale. In addition, she corroborated Richardson’s
5
testimony that she accompanied Adeyale, Richardson, and Smith to
the bank; Campbell confirmed that Smith made a withdrawal inside
the bank and gave the funds to Adeyale.
The government also presented testimony from a Bank of
America investigator, Dulcie Martin, who discussed various
documents pertaining to the fraudulent transactions. Most
important to this appeal, Martin described the withdrawals from
Smith’s account underlying Counts Five and Six: an October 30,
2008 withdrawal of $5,000, and an October 29, 2008 withdrawal of
$600. Martin also connected Bank of America surveillance
photographs to specific transactions. Based on those
photographs, witnesses visually identified participants in the
scheme conducting specific transactions. Multiple witnesses
identified Campbell, for example, as the person associated with
the $600 withdrawal.
Another government witness, Postal Inspector Julie
Zachariadis, prepared summary charts of the government’s
evidence. One of the charts summarized the fraudulent
transactions involving Smith’s bank account. Over Adeyale’s
objection, Zachariadis testified that the $600 withdrawal was
made using Smith’s ATM card and PIN. The corresponding chart
provided more detail and stated that Campbell made the $600
withdrawal.
6
After the government rested, Adeyale moved for judgment of
acquittal on all counts. The district court denied the motion
but directed the government to dismiss Count Four or Six because
those counts involved withdrawals related to the same deposit.
The government elected to dismiss Count Four. The court
subsequently instructed the jury to consider Count One
(conspiracy), Counts Five through Seven (substantive bank
fraud), and Count Ten (aggravated identity theft).
The jury found Adeyale guilty of Counts One, Five, Six, and
Ten, but not guilty of Count Seven. The court sentenced Adeyale
to 84 months’ imprisonment, consisting of concurrent 60-month
sentences on Counts One, Five, and Six, and a consecutive 24-
month sentence on Count Ten. The court also required Adeyale to
pay restitution. This appeal followed.
II.
Adeyale raises several issues on appeal, arguing that the
district court erred by (1) denying his motion for judgment of
acquittal on the aggravated identity theft count; (2) admitting
certain summary testimony; (3) declining to dismiss Counts Five
and/or Six as multiplicitous, and (4) imposing a substantively
unreasonable sentence. We review these issues in turn.
7
A.
We first consider Adeyale’s argument that he was entitled
to a judgment of acquittal on the aggravated identity theft
count because the government presented insufficient evidence to
support his conviction. We review de novo the district court’s
denial of Adeyale’s motion for judgment of acquittal. See
United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013), cert.
denied,
134 S. Ct. 1777 (2014). In assessing a challenge to the
sufficiency of the evidence, we view the evidence in the light
most favorable to the government and will sustain the jury’s
verdict unless we conclude “that no rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.”
Id.
The aggravated identity theft statute imposes a mandatory
consecutive two-year sentence on anyone who, “during and in
relation to any felony violation enumerated in subsection (c)
[including bank fraud and conspiracy to commit bank fraud],
knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person.” 18
U.S.C. § 1028A. To establish a violation of this provision, the
government must show that the defendant knew the means of
identification belonged to another person. Flores-Figueroa v.
United States,
556 U.S. 646, 657 (2009). But, as we held in
another case involving the same scheme at issue here, the
8
government is not required to prove that the defendant
possessed, transferred, or used the other person’s
identification without that person’s consent. See United States
v. Otuya, 720 F.3d 183, 189 (4th Cir. 2013), cert. denied,
134
S. Ct. 1279 (2014).
In rejecting Otuya’s argument to the contrary, we
explained: “To excuse Otuya’s act of using another person’s
identification to defraud Bank of America of thousands of
dollars simply because a coconspirator agreed to let him do so
would produce an untenable construction of the statute and an
unacceptable result.” See id. Most circuits to address the
issue have reached the same conclusion. See
id. (collecting
cases and noting that “[o]ur holding . . . places us in accord
with every circuit to have addressed the question”). But see
United States v. Spears,
729 F.3d 753, 758 (7th Cir. 2013) (en
banc) (“Section 1028A, we hold, uses ‘another person’ to refer
to a person who did not consent to the use of the ‘means of
identification.’”).
Adeyale asserts that Otuya does not control here because
the government charged him with aggravated identity theft in a
“unique way.” 3 See Appellant’s Br. at 10. In Adeyale’s view,
3
Alternatively, Adeyale asserts that we should revisit our
holding in Otuya if we conclude that Otuya resolves the
aggravated identity theft issue. Otuya’s holding, in Adeyale’s
(Continued)
9
the government “was explicit” that the predicate felonies
supporting the aggravated identity theft charge were Counts Five
and Six. See id. at 11. Adeyale argues that neither count can
sustain his aggravated identity theft conviction. Count Five
fails to do so, he asserts, because Smith used her own, new ATM
card and PIN to make the $5,000 withdrawal. Therefore, Adeyale
contends that he did not possess, transfer, or use Smith’s
identification during and in relation to that withdrawal. With
respect to Count Six, Adeyale argues that the government did not
present sufficient evidence that Campbell used Smith’s means of
identification to withdraw the $600. Without such evidence,
Adeyale suggests that there was not sufficient evidence to
connect him to the possession, transfer, or use of another
person’s means of identification during and in relation to the
$600 transaction.
We find Adeyale’s contentions unpersuasive. To begin with,
the record belies Adeyale’s suggestion that the government
waived reliance on Count One. The government explicitly cited
the conspiracy count as a predicate offense supporting the
view, depended on incorrect statutory interpretation. We do not
reach the merits of Adeyale’s argument, however, because we have
no authority to overrule a decision issued by a previous panel.
See McMellon v. United States, 387 F.3d 329, 332-33 (4th Cir.
2004) (en banc).
10
aggravated identity theft charge. Specifically, the government
charged that, between approximately October 29 and 30, 2008,
Adeyale
did knowingly transfer, possess and use, without
lawful authority, a means of identification of another
person, that is, the name, personal bank account
number and ATM/debit card issued to [Courtney Smith],
during and in relation to a felony violation, that is,
conspiracy to commit bank fraud . . . as charged in
Count One[,] . . . and bank fraud . . . as charged in
Counts Two through Seven.
J.A. 21. In addition, the government alluded to the conspiracy
count in its closing argument.
Count One amply supports Adeyale’s aggravated identity
theft conviction. The government presented detailed testimony
from multiple sources that Adeyale possessed and transferred
Smith’s means of identification during and in relation to the
conspiracy. And, as we have already explained with respect to
the same scheme, the fact that Smith consented to the nefarious
use of her personal information is of no import. See Otuya, 720
F.3d at 189.
Nor do Adeyale’s arguments about Counts Five and Six give
us pause. Regarding Count Five, we agree that the government’s
evidence indicates that Smith used her own ATM card to withdraw
the $5,000. And we acknowledge Smith’s testimony that she used
a new, temporary ATM card and PIN to make that withdrawal. But
we believe that a rational juror could still find, based on the
11
evidence at trial, that Adeyale possessed Smith’s means of
identification during and in relation to that withdrawal. The
relevant statutory phrase is sufficiently broad. See United
States v. Mobley, 618 F.3d 539, 549 (6th Cir. 2010) (explaining
that “the ‘in relation to’ element [of 18 U.S.C. § 1028A] is met
if the identity theft ‘facilitates or has the potential of
facilitating’ that predicate felony”); see also United States v.
Huerta-Loya, 496 F. App’x 307, 309 (4th Cir. 2012) (relying on
Mobley and explaining that we have interpreted the phrase “in
relation to” in a different statute “in an equally broad
fashion”); cf. Smith v. United States,
508 U.S. 223, 237-38
(1993) (explaining, in interpreting a different statute, that
the phrase “in relation to” is “expansive”).
Adeyale’s argument regarding Count Six fares no better. We
recognize that the evidence presented at trial with respect to
Campbell’s role in the $600 withdrawal was inconsistent because
Campbell testified that the ATM card did not work, thereby
suggesting that she did not make the withdrawal using Smith’s
means of identification. But, viewing the evidence in the light
most favorable to the government, we conclude that there was
sufficient evidence that Campbell made the withdrawal using
Smith’s ATM card and PIN. This is so based on, among other
evidence, Smith’s bank account statement and multiple witnesses’
12
identification of Campbell as the person depicted in a
surveillance photograph associated with the $600 withdrawal.
In any event, even if we agreed with Adeyale’s argument
about Counts Five and/or Six, any error was harmless because of
the overwhelming evidence of his guilt of aggravated identity
theft during and in relation to the conspiracy count. See Fed.
R. Crim. P. 52(a) (“Any error . . . that does not affect
substantial rights must be disregarded.”).
In sum, the government presented ample evidence to sustain
Adeyale’s aggravated identity theft conviction. Accordingly, we
conclude that the district court did not err in denying
Adeyale’s motion for judgment of acquittal.
B.
Adeyale also argues that the district court erred in
admitting summary testimony concerning the $600 withdrawal in
Count Six. 4 We review a district court’s evidentiary rulings for
abuse of discretion and “will only overturn an evidentiary
ruling that is arbitrary and irrational.” United States v.
Cole, 631 F.3d 146, 153 (4th Cir. 2011) (internal quotation
marks omitted).
4
On appeal, Adeyale does not challenge the government’s use
of summary testimony and summary charts in general. We
therefore limit our discussion to the specific summary testimony
that Adeyale challenges.
13
As relevant here, Inspector Zachariadis prepared a chart
summarizing the government’s evidence regarding the fraudulent
deposits into and withdrawals from Smith’s Bank of America
account. Zachariadis testified, over Adeyale’s objection, that
there was a $600 withdrawal using Smith’s ATM card and PIN on
October 29, 2008. The chart itself went further and stated that
Campbell made the withdrawal. Zachariadis stated that she based
this portion of the chart on Campbell’s and Richardson’s
testimony. She also stated that this portion of the chart was
consistent with a photograph of the person, identified by others
as Campbell, making the $600 withdrawal.
Adeyale asserts on appeal that there was insufficient
evidence to connect the $600 withdrawal to Campbell’s use of
Smith’s ATM card and PIN. In other words, Adeyale submits that
the district court erred in admitting this evidence because it
lacked proper foundation. 5
We conclude that the district court did not abuse its
discretion in admitting this evidence. Contrary to Adeyale’s
assertion, and as explained earlier when discussing the
aggravated identity theft issue, other evidence adequately
supported the challenged testimony. That evidence suffices to
5
Adeyale also briefly asserts that this testimony “drew
improper ‘conclusions’” but does not appear to raise this as an
independent basis for reversal. See Appellant’s Br. at 19.
14
establish that the district court’s evidentiary ruling was
neither arbitrary nor irrational.
C.
Adeyale next contends that the district court erred in not
dismissing Counts Five and/or Six because those counts are
multiplicitous. 6 We review the district court’s legal
conclusions on a motion to dismiss an indictment de novo and its
factual findings for clear error. United States v. Woolfolk,
399 F.3d 590, 594 (4th Cir. 2005).
“‘Multiplicity’ is charging a single offense in more than
one count in an indictment.” United States v. Mancuso, 42 F.3d
836, 847 n.11 (4th Cir. 1994) (internal quotation marks
omitted). As we have explained, “[t]he multiplicity doctrine
finds its roots in the Fifth Amendment’s Due Process Clause,
which assur[es] that the court does not exceed its legislative
authorization by imposing multiple punishments for the same
offense.” See United States v. Colton,
231 F.3d 890, 908 (4th
Cir. 2000) (internal quotation marks omitted). Relying on this
6
We have previously noted that “[v]arious courts, including
this one, have spelled multiplicity in its adjective form as
‘multiplicious’ and ‘multiplicitous.’” See United States v.
Goodine, 400 F.3d 202, 207 n.6 (4th Cir. 2005). In Goodine, we
explained that “multiplicitous” is apparently the preferred
spelling, see
id., and we use that spelling here.
15
doctrine, Adeyale asks us to vacate his convictions on Counts
Five and Six.
Section 1344 of Title 18 authorizes the government to
prosecute each execution of a scheme to defraud a financial
institution. See 18 U.S.C. § 1344; Colton, 231 F.3d at 908-09.
Although the government may not prosecute every act that
furthers a bank fraud scheme, it may charge multiple executions
of a single scheme.
Colton, 231 F.3d at 908-09. What
constitutes an execution of a bank fraud scheme in a particular
case depends on its underlying facts. See
Mancuso, 42 F.3d at
848.
Established principles guide our analysis. In deciding
whether acts constitute separate executions of a bank fraud
scheme, we consider whether the acts are independent or are
“integrally related” so that “one could not have succeeded
without the other.” See Colton, 231 F.3d at 909-10 (internal
quotation marks omitted). An act constitutes a separate
execution when it is “chronologically and substantively
independent from the other acts charged as the scheme.”
Id. at
909 (internal quotation marks omitted). Conversely, evidence
that a defendant “planned or contemplated” certain acts together
may indicate that the acts are interdependent, and
interdependent acts may not be charged separately.
Id.
(internal quotation marks omitted).
16
Our analysis in Mancuso is illustrative. There, the
government charged the defendants with multiple counts of
substantive bank fraud based on a scheme to divert checks
associated with several contracts. Mancuso, 42 F.3d at 847.
The government charged one count of substantive bank fraud for
each diverted check. See
id. In the defendants’ view, the
government should have only charged one count of bank fraud for
each contract--not one count for each check.
Id. We rejected
the defendants’ argument, explaining that “the diversion of a
separately identifiable and discrete amount of money can, as
here, be properly viewed as a separate execution of the
defendants’ scheme to defraud.”
Id. at 848.
The government in this case charged Adeyale with multiple
counts of substantive bank fraud. Pertinent to this appeal,
Count Five charged that Adeyale executed the scheme to defraud
Bank of America based on the $5,000 withdrawal from Courtney
Smith’s account. Count Six charged that Adeyale executed this
scheme based on the $600 withdrawal from Smith’s account.
The district court held that Counts Five and Six
constituted separate executions of the bank fraud scheme and
thus denied Adeyale’s motion to dismiss. The court determined
that the scheme was to deposit stolen checks and withdraw the
accompanying sums in a variety of ways. Accordingly, the
district court found, one deposit and all of the withdrawals
17
pertaining to that deposit constituted an execution of the
scheme. Because the court determined that the withdrawals in
Counts Five and Six pertained to separate deposits, it denied
Adeyale’s motion as to those counts.
Adeyale maintains that “the execution of the scheme to
defraud here was to obtain access to another person’s bank
account for the purpose of cycling money through that account.”
Appellant’s Br. at 32. He thus contends that the use of each
Bank of America account--not each deposit/withdrawal pairing--
constituted an execution of the scheme. 7 We disagree.
In making this argument, Adeyale attempts to analogize this
case to United States v. Heath, 970 F.2d 1397 (5th Cir. 1992).
There, the court held that a real-estate transaction involving
two separate loans from the same financial institution
constituted one execution of the scheme.
Id. at 1402. Based on
the underlying facts, the court determined that the two loans
“were integrally related” and “one could not have succeeded
without the other,” as both loans were made for the purpose of
facilitating the sale of a tract of land in Florida. See
id.
7
At oral argument, but not in his opening brief, Adeyale
asserted that the record was unclear as to whether the
withdrawals at issue in Counts Five and Six actually related to
separate deposits. Adeyale has waived this argument by not
raising it in his opening brief. See United States v. Leeson,
453 F.3d 631, 638 n.4 (4th Cir. 2006).
18
As we have explained, what constitutes an execution of a
particular bank fraud scheme depends on the facts at issue.
Heath does not involve similar facts to those presented here.
Whereas in Heath one loan could not have succeeded without the
other, the deposit/withdrawal pairings in this case were not
related to each other in the same way.
Each deposit/withdrawal pairing was “chronologically and
substantively independent from the other [deposit/withdrawal
pairings] charged as the scheme.” See Colton, 231 F.3d at 909
(internal quotation marks omitted). Put another way, the
success or failure of one deposit/withdrawal pairing did not
rely on the success or failure of another such pairing. We thus
reject Adeyale’s broader proposed unit of prosecution.
Moreover, Adeyale’s argument mischaracterizes the nature of
the overarching scheme. It is true that Adeyale and his
coconspirators used multiple Bank of America accounts to further
their fraud. But the scheme in no way depended on using a
certain account for a particular deposit and its corresponding
withdrawals. If a certain account was unavailable, the
conspirators could simply deposit one or more stolen checks into
a different account.
In sum, we discern no error in the district court’s
determination that, based on the facts of this case, each
deposit and its corresponding withdrawals constituted an
19
execution of the scheme. We therefore hold that Counts Five and
Six are not multiplicitous.
D.
Finally, Adeyale argues that his sentence is unreasonable
in light of the 18 U.S.C. § 3553(a) sentencing factors. We
review a sentence for procedural and substantive reasonableness
under a deferential abuse-of-discretion standard. United States
v. Savillon-Matute, 636 F.3d 119, 122-23 (4th Cir. 2011). A
sentence within or below the applicable Guidelines range is
presumptively reasonable. United States v. Susi,
674 F.3d 278,
289 (4th Cir. 2012).
Adeyale does not assert that the district court committed
procedural error, but he argues that the district court’s below-
Guidelines sentence is substantively unreasonable.
Specifically, he contends that the court failed to account
sufficiently for the need to avoid unwarranted sentencing
disparities and for his personal history and characteristics.
Adeyale also asserts that the district court placed too much
emphasis on deterrence and not enough on Adeyale’s allegedly low
risk of recidivism. The record does not support these
arguments. As explained below, the district court carefully
considered each of these arguments and imposed a below-Guideline
sentence that accounted for these concerns.
20
First, Adeyale’s contention that his sentence resulted in
an unwarranted sentencing disparity between him and his
codefendants is without merit. The district court sentenced
Otuya to 96 months’ imprisonment and another codefendant to 48
months’ imprisonment. Adeyale asserts that his sentence should
have been lower than 84 months considering Otuya’s allegedly
more senior role in the conspiracy and his more severe conduct.
Recognizing Adeyale’s argument, the district court first
explained that assessing any unwarranted disparity was difficult
in this case because some coconspirators cooperated with the
government, which may have influenced their resulting charges
and sentences. The district court acknowledged that Adeyale did
not initiate the scheme but explained that he was soon able to
run the scheme for his own benefit. Based on these facts, the
court imposed a sentence that was twelve months shorter than the
sentence Otuya received.
Second, contrary to Adeyale’s allegation, the district
court sufficiently considered his personal history and
characteristics. The court acknowledged Adeyale’s post-
conviction acceptance of responsibility, but it weighed his
belated acceptance of responsibility against other sentencing
factors. The court also recognized Adeyale’s youth; it weighed
his young age, however, against his serious role in the scheme,
21
the fact that he ran other fraud schemes, and the negative
consequences of his actions on many people.
Third, we find unpersuasive Adeyale’s contention that the
district court placed too much emphasis on the deterrence of
others and not enough on his allegedly low risk of recidivism.
The district court properly considered deterrence. In addition,
the court found that Adeyale’s belated acceptance of
responsibility demonstrated the deterrent value in imposing the
84-month sentence and hoped that the sentence would prevent
Adeyale from repeating his criminal conduct.
Adeyale, at bottom, asks us to reweigh the § 3553(a)
factors. This is outside of our purview. We “must defer to the
trial court and can reverse a sentence only if it is
unreasonable.” United States v. Evans, 526 F.3d 155, 160 (4th
Cir. 2008). Accordingly, we affirm the district court’s
sentence.
III.
For the foregoing reasons, we affirm the district court’s
judgment.
AFFIRMED
22
