In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐2224
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
OLUSOLA AROJOJOYE,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 CR 365 — Ronald A. Guzmán, Judge.
ARGUED APRIL 17, 2014 — DECIDED JUNE 3, 2014
Before MANION, SYKES, and TINDER, Circuit Judges.
MANION, Circuit Judge. Olusola Arojojoye participated in a
multi‐faceted fraudulent check‐cashing operation involving his
creation of fraudulent documents bearing the identities of
people and fictitious businesses. After he was caught in the act,
he was indicted by a grand jury on a dozen counts related to
fraud. He ultimately pleaded guilty to one count of bank fraud
in violation of 18 U.S.C. § 1344 and one count of aggravated
identify theft in violation of 18 U.S.C. § 1028A(a)(1). The
2 No. 13‐2224
district court imposed a below‐Guidelines sentence of 85
months’ imprisonment on the bank fraud count and 24 months
on the identity theft count, to be served consecutively for a
total sentence of 109 months. On appeal, Arojojoye challenges
his aggravated identity theft conviction and sentence. We
affirm.
I. Facts
From January 2005 to May 2008, Arojojoye and seven co‐
defendants engaged in an identity theft and bank fraud
operation that resulted in over a million dollars in losses to
financial institutions and adversely impacted the people whose
identities were stolen. To implement this operation, Arojojoye
surreptitiously acquired vital information, including social
security numbers, and manufactured false identification
documents and created fictitious businesses. With these
fraudulent documents, he opened mailboxes at commercial
mail‐receiving agencies. He then recruited co‐defendants
Kenneth Kormoi and Quintin Henderson to do the same. He
also opened fraudulent merchant credit card accounts and
bank accounts, and completed fraudulent transactions. To
perpetuate the scheme, he bought valid credit card numbers
from internet hackers and ran up fraudulent charges through
these merchant accounts through credit card processing
machines provided to him on the mistaken belief that he was
operating legitimate businesses. In order to receive these
payments (delivered to the fraudulently procured mailboxes)
from the credit card companies who had provided him the
machines, he was required to produce proof that his “busi‐
nesses” provided goods or services, and so he created false
invoices.
No. 13‐2224 3
Another facet of this operation involved the theft of
convenience checks—checks issued by credit card companies
to their customers that disburse funds drawn from the cus‐
tomer’s line of credit. Finally, the operation also involved the
theft of actual checks. One of Arojojoye’s co‐defendants, who
was gainfully employed by Navistar Financial Services
Corporation, stole two checks payable to the Navistar Leasing
Company in the total amount of $441,889.03. With the aid of
the fraudulent documents created by Arojojoye, these real
checks were negotiated through a fraudulently created
account.
This criminal enterprise continued for over three years until
Arojojoye was finally arrested after presenting a stolen credit
card and fraudulent driver’s license to purchase money orders
and prepaid phone cards at a Wal‐Mart in Illinois. An inven‐
tory search of his Mercedes produced voluminous evidence of
fraud and identity theft. Law enforcement authorities eventu‐
ally discovered that the scheme involved the creation of over
fifteen fictitious businesses, caused the theft of dozens of
personal identities, and resulted in substantial pecuniary loss
to a number of financial institutions.
A. Procedural History
On July 9, 2009, a grand jury returned a forty‐two‐count
indictment against Arojojoye and seven co‐defendants. On
April 4, 2011, Arojojoye pleaded guilty to one count of bank
fraud under 18 U.S.C. § 1344 and to one count of aggravated
identify theft in violation of 18 U.S.C. § 1028A(a)(1). The
remaining charges were dismissed pursuant to the plea
agreement.
4 No. 13‐2224
In connection with his guilty plea, Arojojoye submitted a
Plea Declaration whereby he acknowledged that he under‐
stood the charges and that the facts “establish[ed] his guilt
beyond a reasonable doubt.” The Plea Declaration contained
admissions that Arojojoye “participated in activities to defraud
using fake IDs, bank accounts, merchant accounts, stolen
identities and credit card numbers.” He also admitted that he
created fraudulent documents for use by himself and others by
getting names and information from the internet and by using
computer applications to produce fraudulent business docu‐
ments. He further admitted to paying co‐defendants
Henderson and Kormoi to open fraudulent mailboxes and to
engage in other aspects of the conspiracy.
Following entry of his guilty plea, the Probation Office
prepared a Presentence Investigation Report (“PSR”). Using
the November 2010 edition of the Sentencing Guidelines
Manual, the Probation Office determined that Arojojoye’s base
offense level was 29 and that his criminal history placed him in
category II. This resulted in an advisory guideline range of
97–121 months’ imprisonment in connection with Count 20, the
bank fraud conviction. Additionally, Count 36, the aggravated
identity theft count, carried a mandatory two‐year term of
imprisonment that must be served consecutive to any other
term of imprisonment imposed. 18 U.S.C. § 1028A(a)(1), (b)(2).
The Probation Officer’s calculation of Arojojoye’s total
offense level included: a sixteen‐level increase, pursuant to
U.S.S.G. § 2B1.1(b)(1)(I), based on a loss amount of $1,028,818;
a four‐level increase, pursuant to U.S.S.G. § 2B1.1(b)(2)(B),
because the scheme involved at least 50 victims who had their
means of identification used unlawfully and without authority;
No. 13‐2224 5
a two‐level increase, pursuant to U.S.S.G. § 2B1.1(b)(9)(C),
because the offense involved sophisticated means; and a
three‐level increase, pursuant to U.S.S.G. § 3B1.1(b), because
Arojojoye was a manager or supervisor and the criminal
activity involved five or more participants or was otherwise
extensive. The Probation Officer also recommended a
three‐level reduction in offense level, pursuant to U.S.S.G.
§ 3E1.1(a) and (b), because Arojojoye accepted responsibility
and pleaded guilty without delay. In submissions filed prior to
sentencing, Arojojoye objected to every increase to the offense
level except the enhancement for sophisticated means.1
B. Sentencing Proceedings
The parties disputed various aspects of the PSR’s calcula‐
tions. Due to the voluminous nature of the incriminating
evidence, the district court held four sentencing hearings to
address these disputes.
i. September 21, 2012, Sentencing Hearing
At his first sentencing hearing on September 21, 2012, the
government sought to hold Arojojoye accountable for actual
losses resulting from fraudulent transactions that he personally
conducted. But the government also sought to hold Arojojoye
responsible for actual losses resulting from fraud committed by
co‐schemers with the assistance of the fraudulent documents
he created—or fraudulent mailboxes or addresses he opened
1
Indeed, Arojojoye expressly agreed to application of the enhancement for
sophisticated means by including the enhancement in his own guideline
calculation submitted to the court, wherein he specifically stated that this
enhancement was “not contested.”
6 No. 13‐2224
or shared. These combined losses totaled over $1 million. In
support of that loss amount, the government introduced
exhibits evidencing the amount of the loss, as well as
Arojojoye’s connection to each loss. These exhibits included
items (such as computer equipment) seized from his Mercedes
following his arrest. Also, an affidavit from the case agent
attesting to the accuracy of the information contained in the
agent’s report totaled over 70 pages and detailed the items
gathered. The government submitted an itemized spreadsheet
listing, by individual victim and financial institution, the actual
loss amount as a result of the fraud. The agent submitted his
own commentary noting the evidence connecting Arojojoye to
each loss amount. On Arojojoye’s motion, he was granted a
continuance to rebut the government’s loss calculation.
ii. November 7, 2012, Sentencing Hearing
At the November 7, 2012, sentencing hearing, Arojojoye
disputed that the $441,899 loss resulting from the stolen
Navistar checks was reasonably foreseeable to him. He argued
that he could not foresee that co‐schemers would use his
fraudulent documents and mailbox address to perpetrate a
fraud involving such a large amount.
The court disagreed. It concluded that through his creation
of these many fraudulent documents and mailbox addresses,
Arojojoye “set up” a network or “structure” that was “sophis‐
ticated[,]” “clearly usable and intended for use for financial
fraudulent transactions[,]” and, ultimately, “made it possible”
for the transactions (with their resulting losses) “to take place.”
Because the government introduced a lengthy postal inspec‐
No. 13‐2224 7
tor’s report, Arojojoye was again granted a continuance to
prepare a rebuttal.
iii. February 21, 2013, Sentencing Hearing
At the February 12, 2013, sentencing hearing the district
court determined that the pecuniary loss exceeded $1 million,
and adjusted Arojojoye’s offense level accordingly. The district
court also addressed additional sentencing guideline enhance‐
ments. The parties disagreed over whether Arojojoye was
subject to enhancement for conduct as a manager or supervisor
pursuant to U.S.S.G. § 3B1.1(b). Regarding this role in the
offense enhancement, Arojojoye essentially conceded that he
managed or supervised two people—co‐defendants Henderson
and Kormoi—but argued that for the enhancement to apply, he
must have managed at least five people. The district court
rejected this interpretation of the guideline, and found that the
enhancement applied here where Arojojoye supervised two
participants in the course of a scheme which involved five or
more participants. A final continuance was granted for the
purpose of setting a final hearing on the remainder of the
government’s proposed sentencing enhancements.
iv. April 17, 2013, Sentencing Hearing
At the April 17, 2013, sentencing hearing, Arojojoye
objected (as he had done previously) to the PSR’s four‐level
increase under U.S.S.G. § 2B1.1(b)(2)(B). That increase was
based on a broad definition of “victim” and provided for a
four‐level increase where the scheme involved at least 50
individuals who had their means of identification used
unlawfully and without authority. Over his objection, the
8 No. 13‐2224
district court included the four‐level enhancement in its
guidelines calculation.
The district court determined that the total offense level
was 29, with a criminal history category of II resulting in an
advisory guideline range of 97 to 121 months on Count 20.
After acknowledging that Arojojoye utilized the four years he
was on pre‐trial release “to remain within the bounds of the
law and to make significant steps in his own rehabilitation,”
the district court explained that it chose the sentence it would
impose based on the § 3553(a) sentencing factors, rather than
on a particular advisory guideline range. The district court
then imposed a sentence of 85 months’ imprisonment on the
bank fraud count (a below‐guidelines sentence) and 24 months
on the identity theft count, to be served consecutively for a
total sentence of 109 months. The remaining counts in the
indictment were dismissed on the government’s motion.
Arojojoye appeals his convictions and sentence.
II. Analysis
Arojojoye raises five arguments on appeal. First, he argues
that the district court erred by accepting his plea to aggravated
identity theft (Count 36), because he did not admit to knowing
that the identification in question belonged to another actual
person. Second, he argues that the district court erred by
finding that his conduct involved 50 or more victims (Count
20). Third, he argues that the district court erred in finding that
he was a manager or supervisor of criminal conduct. Fourth,
he argues that the district court erred in its determination of
the the amount of loss attributable to him. Fifth, he argues that
No. 13‐2224 9
the district court erred in finding that his conduct involved
sophisticated means.
A. Arojojoyes’s Plea of Guilty to Aggravated Identity
Theft (Count 36)
Section 1028A(a)(1) of Title 18 states, in pertinent part, that
“[w]hoever, during and in relation to any felony violation …
transfers, possesses, or uses, without lawful authority, a means
of identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to a term
of imprisonment of 2 years.” Arojojoye first argues that he did
not admit to facts sufficient to establish a violation of 18 U.S.C.
§ 1028A(a)(1); consequently, he argues that the district court
erred in accepting his plea to Count 36. Before the district
court, Arojojoye did not seek to withdraw his guilty plea or
otherwise challenge the sufficiency of the factual basis for that
plea. Thus we review for plain error. United States v. Muratovic,
719 F.3d 809, 812 (7th Cir. 2013); United States v. Vonn, 535 U.S.
55, 59 (2002). Under that standard, Arojojoye “must show a
reasonable probability that, but for the error, he would not
have entered the plea.” United States v. Arenal, 500 F.3d 634, 637
(7th Cir. 2007) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004)).
Arojojoye argues that, for a conviction pursuant to 18
U.S.C. § 1028A(a)(1) to be sustained under the Supreme
Court’s decision in Flores‐Figueroa v. United States, 556 U.S. 646,
657 (2009), “the government must prove, or the defendant
must admit, that he knew the identification information he was
using belonged to another actual person.” Appellant Br. 15. He
argues further that “the law now ‘requires a defendant to
10 No. 13‐2224
know that he or she has assumed the identity of a ‘real person’‘
and ‘not simply a purely fictitious creation not tied to any
person.’” United States v. Aslan, 644 F.3d 526, 550 (7th Cir.
2011). Appellant Br. 16. The government does not disagree
with these rules, it merely disagrees with Arojojoye’s applica‐
tion of them to his facts. The government contends that the
district court found that Arojojoye knew that a particular
identity, “LE,” was an actual (and not merely a fictitious)
person. Arojojoye argues that the record does not contain
evidence providing he knew that “LE” was an “actual person”;
consequently, he argues that his guilty plea cannot be sus‐
tained.
“Before entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.” Fed. R.
Crim. P. 11(b)(3). At his change of plea hearing, Arojojoye
acknowledged to the district court no less than three
times—once in direct response to questioning by the court and
twice by proffer of his attorney (including once as a proffered
recitation of facts supporting guilt)—that “LE” was a real
person. First, Arojojoye’s attorney stated that Arojojoye “had
in his possession … the … date of birth, social security number
‐ ‐ for a lady named Lizel Emborgo.” Second, in connection
with his plea to Count 36, the district court asked Arojojoye if
he illegally “used another person’s identification, including
social security number, during the commission of bank fraud,”
to which he responded “Yes, your Honor.” Third, during the
recitation of facts supporting his change of plea, Arojojoye’s
attorney stated that “the evidence will show or would show …
that on a date before March 28, 2007, [Arojojoye] obtained
some identification information for a Lizel … Emborgo … and
No. 13‐2224 11
… when he was arrested, he had in his possession some of the
… vital information, name, social security number, of Lizel
Emborgo … .”
Later, at sentencing, Arojojoye twice admitted that he
possessed the social security number of Lizel Emborgo. He also
admitted to possessing her date of birth and vital information.
In light of these admissions, his claim of ignorance of her finite
existence is unsustainable. Consequently, it was not errone‐
ous—let alone plainly erroneous—for the district court to
accept Arojojoye’s guilty plea to Count 36. Muratovic, 719 F.3d
at 813; see also United States v. Gomez‐Castro, 605 F.3d 1245, 1248
(11th Cir. 2010) (rejecting defendant’s argument that he did not
know victim was a “real person” and affirming conviction
under § 1028A(a)(1) where defendant purchased a birth
certificate and social security card and used these documents
to obtain other fraudulent documents).
B. Arojojoye’s Challenge to the Imposition of a Four‐level
Adjustment for 50 or More Victims Under U.S.S.G.
§ 2B1.1(b)(2) on Count 20
In the district court, Arojojoye adopted his co‐defendant’s
Ex Post Facto Clause challenge to the four‐level increase under
U.S.S.G. § 2B1.1(b)(2), so his identical challenge is reviewed de
novo. See United States v. Rabiu, 721 F.3d 467, 470–71 (7th Cir.
2013).
When it imposed Arojojoye’s sentence, the district court
applied the sentencing guidelines that were in effect on the
date Arojojoye was sentenced, not the guidelines that were in
effect on the dates he committed his crimes. This practice
followed our precedent at that time, United States v. Demaree,
12 No. 13‐2224
459 F.3d 791 (7th Cir. 2006), which held that the Ex Post Facto
Clause was not implicated when current guidelines yielded a
greater advisory guideline range than the guidelines in effect
at the time the defendant committed his crimes. Id. at 795.
After Arojojoye was sentenced and he filed his notice of
appeal, the Supreme Court decided Peugh v. United States, 133
S.Ct. 2072 (2013), which held that the Ex Post Facto Clause of
the Constitution is violated when a defendant is sentenced
under guidelines in effect after the commission of a criminal
act that results in a more punitive guidelines range than would
have applied under the guidelines in effect at the time the
offense was committed. Id. at 2077. (“A retrospective increase
in an applicable Guidelines range thus creates a sufficient risk
of a higher sentence to constitute an ex post facto violation. ”).
That part of Peugh’s holding is relevant here, although only
preliminarily. In light of Peugh, Arojojoye argues that the
district court’s imposition of a four‐level adjustment for 50 or
more victims violates the Ex Post Facto Clause because it
imposed a four‐level adjustment based on the guidelines’
broader definition of “victim” in effect on the date of
Arojojoye’s sentencing, rather than the narrower definition of
“victim” found in the guidelines in effect at the time of his
crimes.
“[T]he government concedes that the evidence did not
establish 50 or more victims under the narrower definition of
‘victim.’” But Arojojoye’s problem is that Peugh—and our
subsequent precedent interpreting it, Rabiu—specifically
exempted from Ex Post Facto Clause protection situations
where “the sentencing court also stated on the record that the
identical sentence would have been imposed if the court
No. 13‐2224 13
followed the older, more lenient version” of the guide‐
lines—and that is exactly the situation Arojojoye’s case
presents. Rabiu, 721 F.3d at 470; Peugh, 133 S.Ct. at 2088 n.8, see
also United States v. Ruelas‐Valdovinos, 2014 U.S. App. LEXIS
6396, *7 (7th Cir., April 7, 2014) (applying Rabiu for the same
proposition).
Here, the district court stated:
The sentence that I impose is not necessarily tied in
to the Court’s finding as to the guideline range. It is,
I believe the appropriate sentence in this case re‐
gardless of whether the guideline range is that being
argued by the government or that being argued by
the defense.
Thus,“the overstatement of his guidelines range was
harmless and his sentence stands.” Rabiu, 721 F.3d at 471.
C. Arojojoye’s Challenge to the Imposition of a Three‐
level Increase for Conduct as a Manager or Supervisor
Arojojoye also challenges the district court’s application of
a three‐level increase under § 3B1.1(b), which imposes an
increase for being a manager or supervisor in a scheme
involving more than five participants. Specifically, he contends
that he did not manage or supervise any other participant in
the charged offense or relevant conduct.2 Generally, the district
court’s application of U.S.S.G. § 3B1.1 is reviewed de novo.
2
At sentencing, Arojojoye’s attorney conceded that the scheme involved
more than five participants. (“I mean, if you want to count the whole
scheme, you know, all the defendants named in the case, there are, you
know, eight or ten.”)
14 No. 13‐2224
United States v. Mendoza, 576 F.3d 711, 717 (7th Cir. 2009). And
the district court’s “determination concerning a defendant’s
role in the offense is a finding of fact, subject to a clearly
erroneous standard of review on appeal.” United States v.
Hankton, 432 F.3d 779, 793 (7th Cir. 2005). Arojojoye, however,
failed to raise this argument in the district court and therefore
has forfeited it. United States v. Vasquez, 673 F.3d 680, 684 (7th
Cir. 2012). We review forfeited arguments for plain error. Id. at
684–85.
“A supervisor, a manager, tells people what to do and
determines whether they’ve done it.” United States v. Figueroa,
682 F.3d 694, 697 (7th Cir. 2012). Arojojoye argues that the
district court plainly erred in finding that he managed or
supervised “at least two individuals” who were involved in
the scheme. However, at sentencing Arojojoye conceded that
he managed or supervised other participants in the scheme.
Specifically, Arojojoye’s attorney stated that Arojojoye
“managed, at best, Mr. Kormoi and Mr. Henderson.” And even
if we construe this remark as containing a reservation, i.e., “at
best,” Arojojoye admitted in his Plea Declaration that he
recruited and instructed Kormoi to open mail drops in false
names using fraudulent identification that one or the other
provided, and he recruited and directed Henderson to do the
same, as well as to deliver to him fraudulently obtained credit
cards and other items from the mail drops. For their services
rendered, Arojojoye, “gave [Henderson] about $800 for every
batch [] successfully ran through the merchant account,”and
“[Kormoi] was paid for his work by me.” Despite this evi‐
dence, Arojojoye contends that United States v. Weaver, 716 F.3d
439 (7th Cir. 2013), decided after Arojojoye’s sentencing,
No. 13‐2224 15
requires that his sentence be vacated. Like this case, Weaver
involved the imposition of a three‐level increase pursuant to §
3B1.1(b). Id. at 441. But in Weaver, the defendant simply
supplied others with drugs, whereas Arojojoye directed his co‐
defendantsʹ specific conduct and paid them for it once he
determined that they had done it. See Figueroa, 682 F.3d at 697.
In light of this evidence, the district court did not plainly err in
concluding that Arojojoye managed or supervised these two
co‐defendants who participated in the scheme.
D. Arojojoye’s Challenge to the District Court’s Attribu‐
tion of the $441,899.03 Loss Sustained From the Stolen
Navistar Checks
Arojojoye argues that the loss amount attributed to him as
the consequence of his fraud was improperly calculated and
that as a result of this error his sentence was inflated. The
district court’s loss findings, including those regarding the
scope of jointly undertaken activity and foreseeability, are
reviewed for clear error. See United States v. Wang, 707 F.3d 911,
914–15 (7th Cir. 2013).
Arojojoye argues that the district court erred in holding him
accountable for the scheme involving the cashing of stolen
Navistar Leasing Company checks totaling $441,899.03, which
he contends was undertaken by co‐defendants Ogunsegun,
Rabiu, and Adekanbi “when this scheme, its nature, and its
scope were not foreseeable to [him].”
Section 1B1.3(a)(1) of the guidelines provides for the loss
figure to be based on acts committed by the defendant as well
as those a defendant aids and abets, and in the case of “jointly
undertaken criminal activity,” all “reasonably foreseeable acts
16 No. 13‐2224
and omissions of others in furtherance of the jointly under‐
taken criminal activity.” In making determinations regarding
the scope of jointly undertaken criminal activity, we consider,
among other things, defendant’s knowledge that numerous
others were participating in the scheme, the similarity in
method of operation used, length and degree of defendant’s
participation, and degree of coordination among schemers. See
United States v. Salem, 657 F.3d 560, 564 (7th Cir. 2011).
To determine the foreseeability of loss, we start by consid‐
ering the evidence in context and in cumulation. United States
v. Adeniji, 221 F.3d 1020, 1028 (7th Cir. 2000). That’s exactly
what the district court did at sentencing, when it said:
As to the amount of loss or as to the reasonable
foreseeability of the amount of loss, the number of
victims and the proliferation of fraudulent schemes.
It’s clear to me from this massive evidence here that
the defendant was involved on an ongoing basis in
helping others conduct fraudulent schemes, some of
which he knew details about, some of which he
knew only slight information about and some of
which he was not knowledgeable about at all; but
that the likelihood that his co‐schemers were contin‐
uing to conduct such schemes and frauds clearly
had to be in his mind.
In the words of the district court, the “massive evidence”
showed that Arojojoye was the progenitor who created the
fraudulent documents and was responsible for the acquisition
of the mailbox address used by co‐defendants to open the bank
account into which the stolen Navistar checks were first
No. 13‐2224 17
deposited, and he also created fraudulent documents used to
open additional accounts into which the stolen funds were
thereafter transferred.
Our cases make clear that a “defendant need not know of
a co‐schemer’s actions for those actions reasonably to be
foreseeable to the defendant.” Aslan, 644 F.3d at 537. Nor is a
defendant required to interact personally with his co‐schemers
in order to be held accountable for their activities. See Wang,
707 F.3d at 916. While Arojojoye takes issue with the district
court’s statement at sentencing that he was being held respon‐
sible for “some [conduct] of which he was not knowledgeable
at all,” this doesn’t change the fact that the losses suffered by
the victims were foreseeable and attributable to him, so he
remains accountable for their losses. As the district court stated
when it addressed this argument, this issue “is not even a close
call.” See 11/7/12 Sen. Tr. 30 (rejecting Arojojoye’s argument at
sentencing that his co‐defendants “stole more than I thought
they were going to steal.”). We agree. The district court did not
commit any error—let alone clear error—by holding Arojojoye
accountable for the $441,899.03 loss sustained from the stolen
Navistar checks. When considered in context and in
cumulation this loss was not only reasonably foreseeable—it
was inevitable. Adeniji, 221 F.3d at 1028. Consequently, the
district court did not clearly err in so concluding.
E. Arojojoye’s Challenge to the District Court’s
Sophisticated Means Enhancement Imposed Pursuant
to U.S.S.G. § 2B1.1(b)(9)(C)
Finally, Arojojoye contends that the district court erred in
applying a two‐level sophisticated means enhancement to the
18 No. 13‐2224
guideline calculation. But in his sentencing memorandum
submitted to the district court, he expressly agreed to the PSR’s
application of the sophisticated means enhancement. He
included the two‐level enhancement in the guideline calcula‐
tion he submitted to the court and wrote that the enhancement
was “not contested.” When the government raised the sophisti‐
cated means enhancement at sentencing, his attorney re‐
sponded, “I don’t recall objecting to the sophisticated means.”
Arojojoye’s attorney offered no subsequent argument or
objection regarding that enhancement.
As we have acknowledged many times, most recently in
United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), “[t]he
Supreme Court has distinguished forfeiture as ‘the failure to
make the timely assertion of a right’ and waiver as ‘the
intentional relinquishment or abandonment of a known right.’”
Id. at 363 (quoting United States v. Olano, 507 U.S. 725, 733
(1993) (quotations omitted)). “We have found waiver where
‘either a defendant or his attorney expressly declined to press
a right or to make an objection.’” United States v. Walton, 255
F.3d 437, 441 (7th Cir. 2001) (quoting United States v. Cooper,
243 F.3d 411, 416 (7th Cir. 2001)). Here, Arojojoye’s attorney
expressly asserted in his sentencing memorandum that
Arojojoye had no objection to the imposition of the sophisti‐
cated means enhancement. Thus, Arojojoye waived any
objection to the imposition of that enhancement. See United
States v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001) (holding
that a defendant waived an objection to a sentencing enhance‐
ment where at sentencing the court asked the defendant’s
lawyer whether he had an objection to the enhancement and
the lawyer said “no”).
No. 13‐2224 19
In his reply brief, Arojojoye suggests that his attorney’s
remark at sentencing constitutes an objection to this enhance‐
ment, and was thus preserved for appellate review.
Arojojoye’s argument relies completely on the district court’s
immediate response to his attorney’s remark, where the district
court stated, “[o]kay. If there is an objection to sophisticated
means … [the schemes Arojojoye participated in were] more
than sufficient to establish sophisticated means.” But here, the
district court’s efforts to insulate itself from reversal by
speaking up and stating a reason for his decision on the record
does not turn Arojojoye’s attorney’s express disclaimer of any
objection into an objection.
Even if Arojojoye had only forfeited his objection to the
enhancement (and to forestall any ineffective assistance of
counsel claim based on our waiver holding), we still would
conclude that the district court did not plainly err. See Vasquez,
673 F.3d at 684 (“Ultimately, it does not matter whether we
find waiver or forfeiture as [defendant’s] argument still fails
under plain error review.”). The creation of fictitious busi‐
nesses and acquisition of merchant accounts for the sole
purpose of defrauding credit card companies fits squarely
within the guidelines’ definition of “sophisticated.” Further‐
more, as the district court recognized, this case involved the
creation of dozens of false documents and accounts, as well as
numerous false business entities, and continued for over three
years. The district court’s comments, including the comment
that Arojojoye “was wrapped up in dozens of different ways
in these schemes,” indicate that it understood these schemes to
be more sophisticated than a typical credit or bank fraud case.
See United States v. Green, 648 F.3d 569, 577 (7th Cir. 2011)
20 No. 13‐2224
(upholding sophisticated means enhancement where scheme
lasted three years, and involved the creation of false docu‐
ments, and multiple individuals). The district court acknowl‐
edged the extensive scope of this enterprise. Consequently, it
was not plain error for the district court to impose the sophisti‐
cated means enhancement on Arojojoye’s sentence.
III. Conclusion
It was not plain error for the district court to accept
Arojojoye’s guilty plea to Count 36. Although it was error to
sentence Arojojoye under the guidelines in effect on the date of
his sentencing, and not on the dates he committed his crimes,
under Peugh and our subsequent precedent the error was
harmless because the district court clearly stated it would
impose the same sentence regardless. The district court’s
conclusion that Arojojoye managed or supervised two co‐
defendants was not plainly erroneous. The district court also
did not commit clear error by holding Arojojoye accountable
for the $441,899.03 loss resulting from the stolen Navistar
checks because, when considered in context and in cumulation,
this loss was reasonably foreseeable. Finally, Arojojoye waived
his right to contest the district court’s imposition of the
sophisticated means enhancement, and even if he did not, the
district court did not commit plain error by imposing it. For
these reasons, we AFFIRM Arojojoye’s conviction for aggra‐
vated identity theft and sentence.