UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4877
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY OBILO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:09-cr-00047-TSE-1)
Submitted: December 21, 2010 Decided: January 26, 2011
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Iweanoge, II, IWEANOGE LAW CENTER, Washington, DC, for
Appellant. Neil H. MacBride, United States Attorney, John
Eisinger, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Appellant Henry Obilo of conspiracy
to commit bank fraud in violation of 18 U.S.C. § 1349 (2006).
Obilo appeals his conviction, challenging the sufficiency of the
evidence and the propriety of the jury instructions. He also
argues his eighty-eight month sentence was unreasonable. For
the reasons explained below, we affirm.
First, Obilo maintains the evidence adduced at trial
was insufficient to support his conviction. When a defendant
challenges the sufficiency of the evidence, this court considers
whether the evidence, when viewed in the light most favorable to
the government, was sufficient for a rational trier of fact to
have found the essential elements of the crime beyond a
reasonable doubt. Glasser v. United States, 315 U.S. 60, 80
(1942); United States v. Cameron, 573 F.3d 179, 183 (4th Cir.
2009). This court must sustain a verdict supported by
substantial evidence. Glasser, 315 U.S. at 80. This court does
not review the credibility of witnesses and assumes the jury
resolved all contradictions in the testimony in favor of the
government. United States v. Sun, 278 F.3d 302, 312 (4th Cir.
2002). Thus, “[a] defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007).
2
To establish that an accused has committed conspiracy,
the government must prove the following elements: (1) an
agreement among the defendants to commit an illegal act;
(2) knowing and willing participation by the defendants in the
agreement; and (3) an overt act by the defendants in furtherance
of the purpose of the agreement. United States v. Hedgepeth,
418 F.3d 411, 420 (4th Cir. 2005). Moreover, “[k]nowledge and
participation in the conspiracy may be proved by circumstantial
evidence.” United States v. Meredith, 824 F.2d 1418, 1428 (4th
Cir. 1987).
At trial, three of Obilo’s coconspirators testified as
to the existence of the conspiracy and described the complex
methods it used to achieve its goal of stealing funds from high
balance home equity lines of credit. The witnesses also
identified Obilo and described his involvement with the
conspiracy. Further, two of the coconspirators and a law
enforcement officer identified Obilo’s voice on recorded
telephone calls, during which Obilo was attempting to access
bank accounts belonging to other people. Finally, one of the
coconspirators testified that he delivered cash proceeds from
the scheme to Obilo. Viewed in the light most favorable to the
Government, this evidence establishes Obilo’s guilt beyond a
reasonable doubt.
3
Next, Obilo contends his conviction should be reversed
because the district court refused to give the jury his proposed
multiple conspiracy instruction. This court reviews “the
district court’s decision to give or refuse to give a jury
instruction for abuse of discretion.” United States v. Passaro,
577 F.3d 207, 221 (4th Cir. 2009), cert. denied, 130 S. Ct. 1551
(2010). “A multiple conspiracy instruction is not required
unless the proof at trial demonstrates that [the appellant was]
involved only in separate conspiracies unrelated to the overall
conspiracy charged in the indictment.” United States v.
Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (internal
quotation marks and citation omitted). We have thoroughly
reviewed the record in this case, and conclude that it is devoid
of evidence indicating Obilo was involved in only an unrelated
conspiracy. Thus, we conclude the district court correctly
refused his proposed jury instruction.
Last, Obilo argues the district court’s imposition of
an eighty-eight month sentence was unreasonable. This court
reviews a district court’s sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Pauley, 511 F.3d 468,
473-74 (4th Cir. 2007). When sentencing a defendant, a district
court must: (1) properly calculate the Guidelines range;
(2) determine whether a sentence within that range serves the
4
factors set out in 18 U.S.C. § 3553(a) (2006); (3) implement
mandatory statutory limitations; and (4) explain its reasons for
selecting a sentence. Pauley, 511 F.3d at 473.
Here, the district court followed the necessary
procedural steps in sentencing Obilo and properly calculated the
Guidelines sentence. After the district court considered the
relevant § 3553(a) factors and the parties’ arguments, it
imposed a variant sentence that was twenty months below the
advisory Guidelines sentencing range. The district court varied
downward in order to avoid imposing a sentence unnecessarily
disparate from that of Obilo’s coconspirators, but selected a
sentence that still recognized Obilo’s more culpable conduct.
We have reviewed the record and conclude the district court did
not abuse its discretion in fashioning Obilo’s sentence.
For the foregoing reasons, we affirm the district
court’s judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
5