United States Court of Appeals,
Eleventh Circuit.
No. 94-4949
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Julis OBASOHAN, Defendant-Appellant.
Jan. 22, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-68-Cr-LCN), Lenore Carrero Nesbitt,
Judge.
Before KRAVITCH, EDMONDSON and COX, Circuit Judges.
PER CURIAM:
Julis Obasohan was convicted of conspiracy to traffic in
counterfeit access devices, in violation of 18 U.S.C. § 1029(b)(2),
sentenced to 41 months imprisonment, and ordered to pay
restitution. He appeals his sentence on the ground that the
district court misapplied the Sentencing Guidelines. We AFFIRM.
I.
Obasohan was charged in a single count indictment with
knowingly and willfully conspiring "to produce, use, and traffic in
one or more counterfeit access devices." Evidence linked Obasohan
and co-defendant Oromie Ogionwo to a series of "true name" credit
card frauds, in which another person's name, date of birth, and
social security number were used to obtain a credit card which was
then used to make cash withdrawals and purchases. The evidence
revealed Obasohan's involvement with thirty fraudulent credit card
applications, eighteen of which were accepted and twelve of which
were rejected by banks. The government calculated the actual
losses from the accepted applications as approximately $135,397 and
the intended losses from the rejected applications as $90,264,
resulting in an aggregate loss of $225,661.
Obasohan pleaded guilty to all charges in the indictment and
was convicted of conspiracy to traffic in counterfeit access
devices, in violation of 18 U.S.C. § 1029(b)(2). During his plea
colloquy, he admitted to picking up a credit card in the name of
Robert Voelkell at a post office. Voelkell had not applied for the
card nor authorized anyone else to make such an application. 1 In
addition, the district judge explained to Obasohan, "If I find that
you were involved in other credit card frauds or misuse of credit
cards as a result of the conspiracy charged in this case, I could
take that into consideration in sentencing you."
Obasohan was sentenced to a term of 41 months imprisonment and
ordered to pay the following restitution: $27,476.66 to Fidelity
Investment Company; $2,000 to Discover Card Services; and
$7,724.49 to U.S.A.A. Credit Card Services. The sentence included
an eight level enhancement pursuant to U.S.S.G. § 2F1.1(b)(1)(I)
based on the district court's adoption of $225,661 as the total
loss.
II.
On appeal, Obasohan argues that the district court exceeded
its authority by ordering him to pay restitution for losses
resulting from any acts other than his attempts to obtain a
1
Obasohan had been charged with committing this overt act
"among others" in his indictment.
Discover credit card in Robert Voelkell's name. He contends that
he was charged and convicted only of conspiracy to obtain the
Voelkell card and suggests that, under Hughey v. United States, 495
U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), any restitution
must be limited to losses resulting from that offense.
Obasohan did not object to the district court's restitution
order at sentencing. Absent manifest injustice, we will not
entertain a sentencing issue on appeal if a defendant has failed to
raise an objection to the district court as long as the defendant
had the opportunity to raise such an objection. United States v.
Jones, 899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906,
111 S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136 (11th Cir.1993). In United
States v. Cobbs, 967 F.2d 1555 (11th Cir.1992), we recognized the
rule in Jones but noted that Jones "does not preclude review of an
issue if there is plain error." Id. at 1557 (citing United States
v. Webb, 943 F.2d 43 (11th Cir.1991)). In Cobbs, we concluded that
if a court orders restitution beyond that authorized by the
Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663
and 3664 (formerly codified at 18 U.S.C. §§ 3579 and 3580),
the resulting sentence is an illegal sentence subject to
review as plain error. Therefore, if the district court
imposed an illegal sentence in its restitution order by
requiring restitution beyond that authorized by statute, Cobbs
is entitled to relief notwithstanding his failure to object at
sentencing.
Cobbs, 967 F.2d at 1558. Accordingly, in spite of Obasohan's
failure to object at sentencing, we reach the merits of his claim.
Hughey involved a defendant who pleaded guilty to using one
unauthorized credit card. The district court ordered Hughey to pay
restitution under the Victim and Witness Protection Act of 1982
("VWPA") based upon the losses from the use of the credit card for
which he was convicted as well as the use of twenty-one other
credit cards, for which he was not convicted. The Supreme Court
reversed the restitution order, holding that restitution under the
VWPA may only be ordered based upon losses stemming from the
offense of conviction. Hughey, 495 U.S. at 422, 110 S.Ct. at 1985-
86; Cobbs, 967 F.2d at 1558-59 (interpreting Hughey ).
We need not consider the application of Hughey to a case such
as Obasohan's, however, because a post-Hughey amendment to the VWPA
makes clear that the restitution order in this case was authorized
under the statute. Effective November 29, 1990, Congress amended
18 U.S.C. § 3663 to expand the definition of "victim" under the
VWPA to include, in conspiracy cases, "any person directly harmed
by the defendant's criminal conduct in the course of" the
conspiracy. Pub.L. No. 101-647, 104 Stat. 4789, 4863 (codified at
18 U.S.C. § 3663(a)(2)). Other circuits to have applied this
amendment have held that a defendant convicted of conspiracy can be
required to pay restitution for all losses resulting from acts in
furtherance of the conspiracy. See United States v. Plumley, 993
F.2d 1140, 1142 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct.
279, 126 L.Ed.2d 230 (1993); United States v. Sanga, 967 F.2d
1332, 1334 (9th Cir.1992).2
2
In a recent Eleventh Circuit case considering the issue of
VWPA restitution in the context of a conspiracy, the court
refused to apply the 1990 amendment because the defendants were
sentenced prior to its effective date, and instead found Hughey
to govern. U.S. v. Elliott, 62 F.3d 1304, 1313-14 (11th
Cir.1995). In this case, in contrast, both the conduct
constituting the basis for Obasohan's conspiracy conviction and
Obasohan's sentencing occurred after the amendment became
effective.
We agree and conclude that a district court does not exceed
its authority by ordering a defendant to pay restitution for losses
which result from acts done in furtherance of the conspiracy of
which the defendant is convicted. In this case, the record
demonstrates that the losses which formed the basis of the
restitution award resulted from acts which were part of the
conspiracy of which Obasohan was convicted. 3 We therefore AFFIRM
the restitution award.
III.
Obasohan raises three additional claims on appeal. He argues
that the district court (1) erred in determining the loss
attributable to his actions and improperly enhanced his sentence by
eight levels; (2) erroneously denied him a sentence reduction for
acceptance of responsibility; and (3) improperly enhanced his
sentence for being involved with more than minimal planning or more
than one victim and for reckless endangerment of police officers
when he was arrested in January 1994. Our review of the record and
the applicable law reveals that these claims also are without
merit. Accordingly, we AFFIRM Obasohan's sentence.
3
The indictment charged Obasohan with a conspiracy extending
"[f]rom on or about a time unknown to the Grand Jury, to on or
about February 1, 1993, at Miami, Dade County, in the Southern
District of Florida" and listed as overt acts Obasohan's
receiving a Discover credit card in the name of Robert L.
Voelkell, Jr., "among others." Prior to accepting Obasohan's
guilty plea, the district judge advised him that he would be held
responsible at sentencing if it turned out that he had been
involved in other credit card fraud pursuant to the conspiracy.
Evidence presented at Obasohan's sentencing hearing did, in fact,
link him to a number of further acts of "true name" credit card
fraud, including those resulting in the losses for which he was
ordered to pay restitution. Clearly, then, Obasohan's indictment
and conviction were not limited to the Voelkell incident.
AFFIRMED.