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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15066; 14-15067
Non-Argument Calendar
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D.C. Docket Nos. 1:13-cr-20803-WJZ-1; 0:14-cr-60145-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMANUEL A. ADEIFE,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(July 10, 2015)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Emmanuel Adeife pleaded guilty to one count of access device fraud, in
violation of 18 U.S.C. § 1029(a)(2), one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1), and one count of failure to appear, in
violation of 18 U.S.C. § 3146(a)(1).1 Adeife appeals his total seventy-six-month
upward variance sentence. On appeal, he contends that the district court erred in
applying a four-level sentencing enhancement because its finding that the offense
involved more than fifty victims was clearly erroneous. Adeife further argues that
his seventy-six-month term of imprisonment is both procedurally and substantively
unreasonable since the district court failed to adequately explain why it deviated
upward from the Guidelines.
After a thorough review of the record and the parties’ briefs, we conclude
that the district court’s factual finding with regard to its calculation of the number
of victims was not clearly erroneous, and, therefore, the district court did not err in
applying the four-level enhancement. However, because the district court imposed
a sentence above the Guidelines without adequate explanation, despite announcing
its intent to impose a sentence within the Guideline range, we vacate Adeife’s
seventy-six-month sentence and remand for further clarification and resentencing.
1
This appeal arises from two separate criminal prosecutions, with separate indictments,
that were consolidated for purposes of appeal.
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I.
The district court’s interpretation and application of the Guidelines is
reviewed de novo, and its calculation of the number of victims is reviewed for
clear error. United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013).
Although estimations are permitted, the district court is prohibited from
speculating about the existence of a fact that would yield a more severe sentence.
Id. The Sentencing Guidelines provide for a four-level enhancement if the offense
involved fifty or more but fewer than 250 victims. U.S.S.G. § 2B1.1(b)(2)(B)–(C).
For sentencing enhancement purposes, a “victim” is defined as “any person who
sustained any part of the actual loss.” § 2B1.1 cmt. n.1. However, when a case
involves a means of identification, a victim is also defined as “any individual
whose means of identification was used unlawfully or without authority.” § 2B1.1
cmt. n.4(E)(ii).
Here, Adeife admitted that he filed 112 fraudulent Social Security retirement
benefit claims using the identities of real people without their authorization. We
acknowledge that Adeife was only successful in receiving payment on forty-five of
those claims. However, the fact that he did not receive payment on all 112 claims
is of no moment because the mere unlawful use of a means of identification or its
use without authorization is sufficient to convert an individual into a victim for
enhancement purposes. See § 2B1.1 cmt. n.4(E)(ii). Therefore, Adeife’s claim
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that these individuals were not victims within the meaning of Application Note
4(E)(ii), simply because he was unsuccessful in receiving payments on every
claim, is without merit. Accordingly, the district court’s finding of fact that the
offense involved 112 victims was not clearly erroneous, and, therefore, its
application of the four-level enhancement was appropriate.
II.
Adeife also argues that his sentence is procedurally and substantively
unreasonable.
Here, the district court explicitly stated that it found “no reason to depart or
vary from the sentence called for by the guidelines” and that the sentence it
imposed was “within the advisory guideline range.” The calculated Guideline
range was sixty-five to seventy-five months’ imprisonment, and both parties
requested a sentence within the Guidelines. Despite unequivocally declaring its
intent to impose a sentence within the guidelines, the district court sentenced
Adeife to seventy-six months’ imprisonment, which is not a sentence within the
guidelines range. The seventy-six month sentence is in direct conflict with the
district court’s expressed, unequivocal intention to sentence Adeife within the
Guidelines. See id. Because it appears that the district court did not intend to
impose an above Guidelines sentence, we vacate Adeife’s sentence and remand to
the district court for further clarification and resentencing. Finally, because it is
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necessary to first cure this error, we do not reach the issue of whether Adeife’s
sentence was substantively reasonable. United States v. Barner, 572 F.3d 1239,
1253 (11th Cir. 2009).
AFFIRMED in part; VACATED and REMANDED in part.
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