United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Decided June 10, 2014
`
`
`
`Argued March 17, 2014
`
`
`No. 12-3082
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`OLABIMPE M. OLEJIYA, ALSO KNOWN AS BIM,
`ALSO KNOWN AS BIMPE,
`APPELLANT
`
`
`
`No. 12-3090
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`OLUYINKA AKINADEWO, ALSO KNOWN AS OLU BLACK,
`ALSO KNOWN AS OLU DUDU, ALSO KNOWN AS OLU,
`APPELLANT
`
`
`
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:11-cr-00150)
`
`
`
`
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Decided June 10, 2014
`
`
`
`Argued March 17, 2014
`
`
`No. 12-3082
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`OLABIMPE M. OLEJIYA, ALSO KNOWN AS BIM,
`ALSO KNOWN AS BIMPE,
`APPELLANT
`
`
`
`No. 12-3090
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`OLUYINKA AKINADEWO, ALSO KNOWN AS OLU BLACK,
`ALSO KNOWN AS OLU DUDU, ALSO KNOWN AS OLU,
`APPELLANT
`
`
`
`
`
`Appeals from the United States District Court
`for the District of Columbia
`(No. 1:11-cr-00150)
`
`
`
`
`
`2
`Lisa B. Wright, Assistant Federal Public Defender, argued
`the cause for appellant Akinadewo. Richard Seligman,
`appointed by the court, argued the cause for appellant Olejiya.
`A.J. Kramer, Federal Public Defender was on brief. Tony
`Axam Jr., Assistant Federal Public Defender, entered an
`appearance.
`
`
`Anne Y. Park, Assistant United States Attorney, argued the
`cause for the appellee. Ronald C. Machen Jr., United States
`Attorney, and Elizabeth Trosman, Suzanne G. Curt and Bryan
`G. Seeley, Assistant United States Attorneys were on brief.
`
`
`Before: HENDERSON and MILLETT, Circuit Judges, and
`GINSBURG, Senior Circuit Judge.
`
`Opinion for the Court filed by Circuit Judge HENDERSON.
`
`KAREN LECRAFT HENDERSON, Circuit Judge: Olabimpe
`Olejiya and Oluyinka Akinadewo both pleaded guilty to one
`count of conspiracy to commit bank fraud based on their
`participation in a scheme that involved opening fraudulent
`bank accounts in the name of unwitting individuals, funding
`the accounts with fraudulent checks and wire transfers and
`withdrawing funds before the accounts’ fraudulent nature was
`detected. They now raise parallel challenges to their
`sentences, claiming that the district court erred in calculating
`their respective United States Sentencing Guidelines offense
`levels by (1)
`improperly applying an aggravated role
`enhancement of three levels for Olejiya and four for
`Akinadewo, see U.S.S.G § 3B1.1, and (2) failing to make the
`factual findings necessary to support a 12-level increase for
`both based on the amount of intended loss involved in the
`conspiracy, see U.S.S.G. § 2B1.1(b)(1). For the reasons that
`follow, we affirm the district court’s judgments.
`
`
`
`
`
`
`3
`I. Background
`
`As admitted by Olejiya and Akinadewo in their plea
`proceedings, the conspiracy lasted from April 2007 to
`December 2007.
` The conspiracy’s goal—enriching its
`members—was achieved by the following overt acts. On
`September 12, 2007, two checking accounts were opened at
`E*Trade via the internet, using the name, birthdate and social
`security number of A.S. A.S., however, was unaware of the
`accounts and had given no one permission to use his personal
`information. In the following months, members of the
`conspiracy
`transferred $109,200 from A.S.’s
`legitimate
`account at the Armed Forces Bank to the two fraudulent
`E*Trade accounts set up in his name and withdrew over
`$50,000 of that amount before the fraud was detected.
`Moreover, beginning as early as July 2007, numerous calls
`from a cell phone belonging to Akinadewo were made to both
`Armed Forces Bank and E*Trade in an apparent effort to
`monitor accounts. Akinadewo did not have a legitimate
`account at either bank. On October 6 and 8, 2007, Akinadewo
`used a debit card associated with one of the fraudulent E*Trade
`accounts to purchase twelve money orders, each worth $500,
`from a Walmart in Landover Hills, Maryland. On October 7,
`2007, Olejiya purchased four $500 money orders from three
`Walmart stores in Laurel, Bowie and Landover Hills,
`Maryland.
`
`Another fraudulent checking account in the name of
`A.S.—this one at Branch Banking and Trust (BB&T)—was
`opened via the internet on August 25, 2007. Although
`Akinadewo did not have an account at BB&T, six calls were
`made to the bank from his phone during the time of the
`conspiracy. On September 11, 2007, Akinadewo made an
`initial deposit of $50 in the account at a BB&T branch in the
`District of Columbia. Three days later, he made another $50
`
`
`
`
`
`4
`deposit at a Maryland branch. On October 3, 2007, using an
`ATM in Silver Spring, Maryland, Akinadewo deposited a
`$20,000 check, drawn on one of the fraudulent E*Trade
`accounts, into the fraudulent BB&T account. The next day,
`he attempted to repeat the maneuver with a $30,000 check
`drawn on one of the E*Trade accounts but it bounced. All
`told, members of the conspiracy successfully withdrew over
`$30,000 from the BB&T account by cashing checks drawn on
`the account and making ATM withdrawals.
`
`On November 3, 2007, the name, birthdate and social
`security number of another unwitting individual, U.J., were
`used to open another BB&T checking account via the internet.
`That account was funded with $8,000 transferred from yet
`another fraudulent account, this one opened with Charles
`Schwab in the name of A.S. According to Olejiya, on
`November 30, 2007, he contacted Akinadewo and informed
`him that another conspirator, Samuel Akinleye, was willing to
`cash a check written on the fraudulent BB&T account in the
`name of U.J. Akinadewo then met up with Olejiya and
`Akinleye, wrote a $4,000 check to Akinleye and signed U.J’s
`name. Akinadewo instructed Akinleye to cash the check and
`return the money to Akinadewo, which Akinleye did in
`exchange for a portion of the proceeds. During his plea
`colloquy, Akinadewo denied any recollection of writing the
`check on November 30, 2007, instead stipulating more
`generally that “during the time period of the conspiracy, [he]
`had access to checks in others’ names, and provided some of
`these checks to co-conspirators to either cash or deposit.”
`4/20/12 Tr. 30–31.
`
`All told, the conspiracy resulted in actual losses of
`$90,987.48 before the fraud was detected, which amount
`includes all of the funds withdrawn from the fraudulent
`accounts. When the funds that passed through the fraudulent
`
`
`
`
`
`5
`accounts are added, the intended loss of the conspiracy totals
`$363,939.76.
`
`On May 13, 2011, a grand jury returned a one-count
`indictment charging Olejiya and Akinadewo with conspiracy
`to commit bank fraud in violation of 18 U.S.C. §§ 1344 and
`1349. On March 22, 2012, Olejiya entered a plea of guilty.
`Olejiya’s presentence report (PSR) calculated his Guidelines
`range at 41-51 months, based on a criminal history category of
`II and an offense level of 21. The offense level included a
`3-level enhancement, to which Olejiya objected, for his role as
`a “manager or supervisor.” See U.S.S.G. § 3B1.1(b). It also
`included a 12-level increase for an intended loss from the
`offense greater than $200,000, to which Olejiya objected solely
`on fairness grounds, asking the district court to grant a variance
`from the Guidelines. See U.S.S.G. § 2B1.1(b)(1)(G). At the
`sentencing hearing, the district court found that Olejiya
`qualified for the 3-level aggravated role enhancement and the
`12-level
`increase and sentenced him
`to 35 months’
`imprisonment.1 He timely appealed.
`
`Akinadewo pleaded guilty on April 20, 2012. His PSR
`calculated the applicable Guidelines range at 41-51 months,
`based on a criminal history category of II and an offense level
`of 21.
` Akinadewo’s offense level included a 4-level
`enhancement for his role as an “organizer or leader,” see
`U.S.S.G. § 3B1.1(a), and a 12-level increase for the loss
`amount, see U.S.S.G. § 2B1.1(b)(1)(G). Like Olejiya,
`Akinadewo objected to the aggravated role enhancement and
`made a similar “fairness” objection to the loss amount. At the
`
`
`1 The district court sentenced Olejiya to a six-month concurrent
`term on one count of misuse of a passport in violation of 18 U.S.C.
`§ 1544, which charge resulted from Olejiya’s attempt to flee to
`Canada to avoid prosecution.
`
`
`
`
`
`6
`sentencing hearing, the district court found that Akinadewo
`qualified for the 4-level aggravated role enhancement and the
`12-level
`increase and sentenced him
`to 46 months’
`imprisonment. He timely appealed.
`
`
`II. Aggravated Role
`
`Olejiya and Akinadewo both argue that the district court
`erred by enhancing their respective offense levels by three and
`four points for their aggravated roles in the offense. “In
`reviewing a sentencing decision, we address purely legal
`questions de novo, accept the district court’s factual findings
`unless they are clearly erroneous, and give ‘due deference’ to
`that court’s application of the Guidelines to the facts.” United
`States v. Saani, 650 F.3d 761, 765 (D.C. Cir. 2011). The
`district court’s fact-specific determination that a defendant was
`an “organizer or leader” or a “manager or supervisor” warrants
`due deference, see United States v. Quigley, 373 F.3d 133, 138
`(D.C. Cir. 2004); United States v. Yeh, 278 F.3d 9, 15 (D.C.
`Cir. 2002), a standard which reflects “the recognition that the
`district courts should be afforded some flexibility in applying
`the guidelines to the facts before them,” United States v. Kim,
`23 F.3d 513, 517 (D.C. Cir. 1994); see also United States v.
`Tann, 532 F.3d 868, 874 (D.C. Cir. 2008) (due deference
`standard survives United States v. Booker, 543 U.S. 220
`(2005)).
`
`The Guidelines provide for an increase in the offense level
`if the defendant played an aggravated role in the offense:
`
`(a) If the defendant was an organizer or leader of a
`criminal activity
`that
`involved
`five or more
`participants or was otherwise extensive, increase by 4
`levels.
`
`
`
`
`
`
`7
`(b) If the defendant was a manager or supervisor (but
`not an organizer or leader) and the criminal activity
`involved five or more participants or was otherwise
`extensive, increase by 3 levels . . . .
`
`U.S.S.G. § 3B1.1. We consider several factors in applying the
`aggravated role enhancement, including
`
`
`the exercise of decision making authority, the nature
`of participation in the commission of the offense, the
`recruitment of accomplices, the claimed right to a
`larger share of the fruits of the crime, the degree of
`participation in planning or organizing the offense,
`the nature and scope of the illegal activity, and the
`degree of control and authority exercised over others.
`
`
`Id. cmt. n.4; see also United States v. Graham, 162 F.3d 1180,
`1185 n.5 (D.C. Cir. 1998) (although factors distinguish
`between 3- and 4-level enhancement, they are relevant to
`whether any aggravated role enhancement applies). No single
`factor is dispositive. Graham, 162 F.3d at 1185; see also
`United States v. Brodie, 524 F.3d 259, 270 (D.C. Cir. 2008);
`United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994).
`
`
`A. Olejiya
`
`Olejiya argues that the district court erred in applying the
`“manager or supervisor” enhancement because he did not
`exercise “control” over criminally liable subordinates. The
`defendant must manage or supervise one or more other
`participants in the criminal activity—not simply the property
`or assets of the conspiracy, as, according to Olejiya, the district
`court concluded—in order to warrant an aggravated role
`enhancement. U.S.S.G. § 3B1.1 cmt. n.2. We have said that
`“[a]ll persons receiving an enhancement [under § 3B1.1] must
`
`
`
`
`
`8
`exercise some control over others.” Graham, 162 F.3d at
`1185; accord United States v. Clark, 747 F.3d 890, 896 (D.C.
`Cir. 2014); United States v. Smith, 374 F.3d 1240, 1250 (D.C.
`Cir. 2004). We elaborated on this statement in Quigley,
`explaining that “[w]e understand the concept of ‘control’ or
`‘authority,’ implicit in the notion of ‘management’ or
`‘supervision,’
`to connote
`some
`sort of hierarchical
`relationship, in the sense that an employer is hierarchically
`superior to his employee.” 373 F.3d at 140.2
`
`During Olejiya’s sentencing hearing, the district court
`heard testimony from Special Agent Spencer Brooks of the
`Federal Bureau of Investigation (FBI). He explained that
`conspirators in this type of bank fraud play different roles.
`High-level participants typically control the fraudulent bank
`accounts, checkbooks and debit cards and are responsible for
`funding the accounts. Low-level participants—often referred
`to as “runners”—are
`typically recruited by high-level
`participants to do the front-line work of cashing fraudulent
`checks. In exchange, the runners receive a small portion of
`the proceeds. Agent Brooks testified that, consistent with this
`model, Olejiya recruited runners, including Samuel Akinleye
`and Okorie Awa, to the conspiracy. Awa was caught on
`camera cashing three fraudulent checks in the amounts of
`$3,000, $4,500 and $5,500 and Agent Brooks testified that,
`according to Awa, Olejiya gave Awa the checks, told him to
`cash them and paid him between $500 and $1,000 for his
`
`2 One judge of this Court has noted tension between Graham’s
`suggestion that “control” is required for an aggravated role
`enhancement and the fact that control is but one of several
`non-dispositive factors listed in the application notes. See Clark,
`747 F.3d at 897–99 (Randolph, J., concurring). We need not
`explore that tension here, however, because the district court
`correctly concluded that both Olejiya and Akinadewo exercised
`control over other participants.
`
`
`
`
`
`9
`effort. The district court credited Agent Brooks’ testimony
`and concluded that, although Olejiya was not the kingpin, he
`was also not merely a runner but instead at least a manager or
`supervisor.
`
`Seeing no error in the district court’s factual findings and
`granting due deference to the district court’s application of the
`Guidelines to the facts, we agree that Olejiya was a manager or
`supervisor. By recruiting others to the scheme, Olejiya
`ensured that he would not perform the risky task of cashing a
`fraudulent check but would instead superintend underlings
`who performed the task at his behest. His recruitment of
`Akinleye and Awa satisfies one of the application note factors
`and his supervision of Awa’s check-cashing demonstrates the
`existence of others, including decision-making authority and
`control exercised over others. See U.S.S.G. § 3B1.1 cmt. n.4.
`This case is more similar to those in which we have found the
`requisite hierarchical relationship, see, e.g., Brodie, 524 F.3d at
`270–71; United States v. Wilson, 240 F.3d 39, 46–47 (D.C. Cir.
`2001); Kelley, 36 F.3d at 1129, than it is to those in which the
`defendant was “simply a barnacle clinging to the outer hull of
`middle management,” Graham, 162 F.3d at 1184.
`
`
`B. Akinadewo
`
`Akinadewo also argues that the district court erred in
`applying the “organizer or leader” enhancement because he did
`not exercise control over other conspirators. Akinadewo’s
`argument is considerably weaker than Olejiya’s. Akinadewo
`stipulated that he had access to the scheme’s checkbooks and
`provided checks to co-conspirators to either cash or deposit,
`making him the sort of high-level participant that relies on
`runners to take the risks. Akinadewo also made several initial
`deposits to fund the fraudulent accounts and numerous calls
`were made from his cell phone to the banks used in the scheme,
`
`
`
`
`
`10
`from which the district court inferred that he was keeping tabs
`on the various accounts. Although Akinadewo contends that
`he was merely the account manager, there is ample evidence
`that he controlled other participants. At Akinadewo’s
`sentencing hearing Agent Brooks testified that, according to
`Awa, Akinadewo supervised one of Awa’s trips to cash a
`fraudulent check by following in another car; after Olejiya had
`collected the money from Awa, Olejiya gave it to Akinadewo.
`Agent Brooks also testified that on one occasion—the one
`disputed in the plea colloquy—Akinadewo wrote a check to
`Akinleye for him to cash; Akinleye did so and returned the
`money to Akinadewo in exchange for a portion of the
`proceeds.
` The district court credited Agent Brooks’
`testimony and found that there was “compelling evidence” that
`Akinadewo was an organizer or leader.
` At bottom,
`Akinadewo asks us to draw an inference from this evidence
`other than the inference reasonably drawn by the district court
`but, even if Akinadewo’s preferred inference (that he merely
`managed the accounts) were plausible, we would nonetheless
`defer to the district court’s reasonable application of the
`Guidelines. See Yeh, 278 F.3d at 15.
`
`
`III. Loss Amount
`
`
`The Guidelines provide that, for certain crimes, the
`offense level is to be increased based on the amount of “loss”
`involved in the offense, which is defined as “the greater of
`actual loss or intended loss.” U.S.S.G. § 2B1.1(b)(1) & cmt.
`n.3. The loss amount is one part of the defendant’s relevant
`conduct that—in the case of jointly undertaken criminal
`activity—includes “all reasonably foreseeable acts and
`omissions of others in furtherance of the jointly undertaken
`criminal activity.” Id. § 1B1.3(a)(1)(B). Because “the scope
`of the criminal activity jointly undertaken by the defendant . . .
`is not necessarily the same as the scope of the entire
`
`
`
`
`
`11
`conspiracy,” id. cmt. n.2, “the Guidelines expressly require
`sentencing courts to determine the scope of each defendant’s
`conspiratorial agreement.” United States v. Mellen, 393 F.3d
`175, 183 (D.C. Cir. 2004); see United States v. Childress, 58
`F.3d 693, 722–24 (D.C. Cir. 1995). “[W]e have not hesitated
`to remand for resentencing when the district court has failed to
` United States v.
`make these individualized findings.”
`Graham, 83 F.3d 1466, 1479 (D.C. Cir. 1996) (collecting
`cases).
`
`
`
`increased both Olejiya’s and
`The district court
`Akinadewo’s offense levels by twelve points to reflect the
`amount of
`intended
`loss
`involved
`in
`the
`entire
`conspiracy—$363,939.76. They now contend that the district
`court failed to comply with the “strict procedural mandate,”
`Childress, 58 F.3d at 722, to support the increase by making
`particularized factual findings regarding the scope of their
`conspiratorial agreement.
`
`
`A. Olejiya
`
`The Government contends that Olejiya waived any
`challenge to the loss amount by affirmatively conceding below
`that he was responsible for the full amount of the intended loss
`involved in the conspiracy. Olejiya contends that he, at most,
`forfeited the issue. “Whereas forfeiture is the failure to make
`the timely assertion of a right, waiver is the intentional
`relinquishment or abandonment of a known right.” United
`States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks
`omitted). “Forfeiture occurs when silence on the part of the
`appealing party has prevented examination by the trial court
`and our review is for plain error.” United States v. Laslie, 716
`F.3d 612, 614 (D.C. Cir. 2013) (citations and quotation marks
`omitted).
` “By contrast, waiver
`is
`intentional, and
`extinguishes an error so that there is no review, because the
`
`
`
`
`
`12
`defendant has knowingly and personally given up the waived
`right.” Id. (quotation marks omitted). We believe that
`Olejiya’s repeated and emphatic concessions, made in written
`submissions and at sentencing, constitute a knowing and
`intentional waiver.
`
`As noted, the PSR calculated Olejiya’s offense level as 21,
`which included a 12-level increase to reflect the full amount of
`intended loss involved in the conspiracy. In his supplemental
`sentencing memorandum, Olejiya conceded that the PSR’s
`Guidelines calculation was correct as to the applicable loss
`amount. See Appendix for Appellants (App.) 113 (“The PSR
`[] quite correctly . . . adds 12 levels . . . .”). He argued,
`however, that the Guidelines “unfairly dictate consideration of
`intended loss amounts.” Id. At Olejiya’s sentencing hearing,
`the prosecutor noted his uncertainty whether Olejiya was
`disputing the Guidelines calculation or simply asking for a
`downward variance from the applicable range. See 10/11/12
`Sent. Tr. 9–10.3 After the district court inquired, defense
`counsel repeated his concession that “the probation office
`correctly calculated the guidelines and that under the
`guidelines they can and perhaps should take into account the
`intended loss.” Id. at 10. Although defense counsel pressed
`the argument that “the way the guidelines work in these fraud
`cases . . . [is] not fair,” he repeated that Olejiya was “not
`disputing that under the guidelines, the court can add 12
`points.” Id. at 12; see also id. at 78 (“Can you legally accept
`that? Of course you can. I have admitted that from Day One.
`. . . I can’t appeal it.”). As a result of these concessions, the
`
`
`3 See generally Gall v. United States, 552 U.S. 38, 51 (2007)
`(noting difference between “procedural error” of court’s failure to
`calculate Guidelines range properly and sentence’s “substantive
`reasonableness”).
`
`
`
`
`
`13
`district court treated the loss amount as undisputed. Id. at 56,
`96.
`
`
`
`We recently held that a defendant who conceded the
`propriety of a sentencing enhancement in a plea agreement and
`at sentencing waived any challenge to the enhancement
`because he
`
`did not merely fail to object to the enhancement; his
`decision not to challenge the enhancement was
`deliberate. Starting with his plea agreement and
`continuing through filings and arguments at his
`sentencing hearing, [he] affirmed that the district
`court should use the enhancement in calculating his
`Guidelines range. His focus was elsewhere, on
`persuading the court to sentence him outside of the
`Guidelines.
`
`Laslie, 716 F.3d at 614; see also United States v. Jackson, 346
`F.3d 22, 24 (2d Cir. 2003) (finding waiver where defendant
`conceded applicability of enhancement in letter to sentencing
`court and at sentencing hearing). So too here. Although,
`unlike Laslie, Olejiya did not plead guilty pursuant to a plea
`agreement, he nonetheless conceded that the PSR correctly
`calculated his Guidelines range. He instead focused his
`efforts on persuading the court to sentence him below that
`range.
`
`
`Whether or not there was a strategic purpose for Olejiya’s
`concession is irrelevant so long as it was indeed a knowing and
`intentional decision and not a mere oversight: “Even if we
`could determine counsel’s reasons for the concession, the
`District Court was entitled to rely” on it. United States v.
`Moore, 703 F.3d 562, 572 (D.C. Cir. 2012). Moore held that a
`defendant who objects to the PSR’s Guidelines calculation but
`
`
`
`
`
`14
`the
`the objection has waived
`subsequently withdraws
`opportunity to raise it on appeal. Id. at 571–72; accord United
`States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014); United
`States v. Bowers, 743 F.3d 1182, 1184–85 (8th Cir. 2014);
`United States v. Venturella, 585 F.3d 1013, 1018–19 (7th Cir.
`2009).
` The initial objection is significant because it
`demonstrates that the defendant did not simply overlook the
`issue. See United States v. Zubia-Torres, 550 F.3d 1202,
`1204–07 (10th Cir. 2008) (discussing distinction between
`waiver and forfeiture in similar case); cf. Olano, 507 U.S. at
`733. Although Olejiya did not withdraw an initial objection,
`we nevertheless think it plain that he was aware of the relevant
`conduct issue and simply chose not to contest it. The
`Government’s sentencing memorandum—under a bold-faced
`heading labeled “Enhancement . . . for Loss Amount”—cited
`Childress for the proposition that only conduct reasonably
`foreseeable to the defendant can be attributed to him at
`sentencing. App. 86–87. And at the sentencing hearing, the
`district court made a point of clarifying that Olejiya’s
`acceptance of the loss amount calculation in his sentencing
`memorandum was indeed a knowing concession that no
`procedural error had occurred. See 10/11/12 Sent. Tr. 9–10.
`
`Just as “[t]his court does not allow parties to reopen issues
`waived by stipulation at trial . . . , we will not review a belated
`challenge on an issue a party agreed not to dispute in
`sentencing proceedings below.” Laslie, 716 F.3d at 615
`(citing United States v. Harrison, 204 F.3d 236, 240 (D.C. Cir.
`2000)); cf. United States v. Warren, 42 F.3d 647, 658 (D.C.
`Cir. 1994) (defendant waived argument that crack cocaine
`found in cigarette package should not have been considered in
`calculating Guidelines offense level after conceding opposite
`below). Olejiya waived any argument that the district court
`committed procedural error.
`
`
`
`
`
`
`15
`B. Akinadewo
`
`As noted, Akinadewo did not raise the loss attribution
`
`issue below. The Government contends that he waived his
`challenge to the loss amount by conceding that the Guidelines
`were correctly calculated. We assume without deciding that
`Akinadewo merely forfeited the issue because we conclude
`that he cannot establish plain error. See Tann, 532 F.3d at
`872.
`
`
`
`On plain-error review, the defendant bears the burden of
`demonstrating that any error was prejudicial. Olano, 507 U.S.
`at 734. In the sentencing context, that burden is “slightly less
`exacting than it is in the context of trial errors.” United States
`v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994). Nonetheless, the
`defendant must “offer some reason to suspect that the District
`Court’s error likely resulted in an incorrect sentence.” United
`States v. Williams, 358 F.3d 956, 966 (D.C. Cir. 2004).
`Akinadewo has not done so.
`
`
`
`The Government’s “Flow of Funds” chart, as Akinadewo
`concedes, explicitly links him to $126,200 in stolen funds—a
`$109,200 wire transfer from A.S.’s legitimate Armed Forces
`Bank account to two fraudulent E*Trade accounts and a
`$17,000 check drawn on another legitimate account and
`deposited in the fraudulent Charles Schwab account. 4
`Although that amount is less than the $200,000 necessary for
`the 12-level enhancement, Akinadewo has given us no reason
`to believe the district court would likely reach a different
`sentence. As discussed, Akinadewo played a supervisory role
`
`
`4 Akinadewo deposited a $20,000 check and attempted to
`deposit another $30,000 check, both drawn on the fraudulent
`E*Trade accounts. He also purchased $6,000 in money orders
`using a debit card associated with the E*Trade accounts.
`
`
`
`
`
`16
`in the scheme and had access to the checkbooks for the
`fraudulent accounts. From the numerous calls made from
`Akinadewo’s cell phone (or his sister’s) to all of the banks
`involved in the scheme, the district court inferred that
`Akinadewo was checking the balances on the accounts. It was
`therefore “reasonably foreseeable” to Akinadewo that more
`than $200,000 in fraudulent funds was in fact held in those
`accounts and thus involved in the conspiracy. U.S.S.G.
`§ 1B1.3(a)(1)(B); see United States v. Wilson, 605 F.3d 985,
`1036–37 (D.C. Cir. 2010) (relying in part upon defendant’s
`“regular and constant communications with Mr. Franklin about
`the quantity of PCP on the street” to establish conspiracy’s
`entire amount was foreseeable by, and therefore attributable to,
`defendant). Because the balance in the fraudulent accounts
`formed the basis for the district court’s loss calculation, we
`have no reason to think that the district court would attribute a
`lower amount to Akinadewo on remand. See Childress, 58
`F.3d at 724 (no plain error where it is not “reasonably likely
`that the district court would have assigned [defendant] a
`different and lower base offense level if it had made the
`requisite findings”).
`
`
`
`For the foregoing reasons, we affirm the judgments of the
`district court.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`So ordered.
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