NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 03 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50094
Plaintiff - Appellee, D.C. No. 2:12-cr-00186-ABC-1
v.
MEMORANDUM*
OSAYANSE OBARGHEDO, AKA Abu,
AKA Thomas Lester, AKA John Price,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted August 28, 2014
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and BYBEE, Circuit Judges.
Appellant Osayanse Obarghedo (Obarghedo) appeals his conviction and
sentence for possession of fifteen or more unauthorized access devices. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The district court acted within its discretion when it denied
Obarghedo’s third motion to substitute counsel. See United States v. Mendez-
Sanchez, 563 F.3d 935, 944 (9th Cir. 2009).
2. The district court did not clearly err when it denied Obarghedo’s
motion to dismiss the information based on alleged Speedy Trial Act violations.
After an evidentiary hearing, the district court determined that Obarghedo failed to
provide “direct [or] indirect support for his contention that prosecutors conspired
with [immigration authorities] to extend his detention until an indictment could be
returned.” United States v. Pena-Carrillo, 46 F.3d 879, 883 (9th Cir. 1995).
3. The district court acted within its discretion when it excluded the
voicemail purportedly from Obarghedo’s cousin because Obarghedo failed to
prove his cousin’s unavailability. Moreover, Obarghedo failed to demonstrate the
requisite corroborating circumstances clearly indicating the statement’s
trustworthiness as required by Fed. R. Evid. 804(b)(3). See United States v.
Gadson, Nos. 12-30007, 12-30047, – F.3d –, 2014 WL 4067203, at *5-*6 (9th Cir.
Aug. 19, 2014).
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4. The district court did not clearly err in its calculation of the financial
institutions’ actual losses and corresponding restitution. See United States v.
Armstead, 552 F.3d 769, 778-79 (9th Cir. 2008), as amended (recognizing that the
district court may consider uncharged conduct in calculating a reasonable estimate
of the amount of loss).
5. The district court’s upward departure in Obarghedo’s criminal history
category was substantively reasonable because it was based on Obarghedo’s
extensive criminal history, his fraudulent conduct, recidivism concerns, and the
need for deterrence. See United States v. Ellis, 641 F.3d 411, 413, 420-21 (9th Cir.
2011). Obarghedo’s procedural challenges—based on the district court’s failure to
state in writing the basis for its departure and the district court’s consideration of
evidence of immigration and mortgage fraud introduced at Obarghedo’s trial—also
fail. See id. at 422.
AFFIRMED.
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