United States v. Oladunjoye

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

AUSTIN OLADUNJOYE, a/k/a Anthony
No. 95-5275
James, a/k/a Stephen Packel, a/k/a
Joseph Gray, a/k/a Jack Trowell,
a/k/a Danny Austin,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CR-94-283-DKC)

Submitted: April 30, 1996

Decided: May 24, 1996

Before HALL and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Godwin Oyewole, Washington, D.C., for Appellant. Lynne A. Bat-
taglia, United States Attorney, Douglas B. Farquhar, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Austin Oladunjoye appeals the 18-month sentence he received fol-
lowing his guilty plea to uttering a forged U.S. obligation, 18
U.S.C.A. § 472 (West Supp. 1995), 18 U.S.C.§ 2 (1988), use of
unauthorized access device, 18 U.S.C.A. § 1029 (West Supp. 1995),
18 U.S.C. § 2, and possession of false identification documents with
intent to use unlawfully, 18 U.S.C.A. § 1928 (West Supp. 1995), 18
U.S.C. § 2. Oladunjoye contends that the district court erred in apply-
ing a two-level vulnerable victim adjustment. United States Sentenc-
ing Commission, Guidelines Manual § 3A1.1 (Nov. 1994). Finding
no error, we affirm.

In 1990 and 1991, Austin Oladunjoye worked as a nursing assistant
at the Great Oaks Center, a state facility for the severely mentally
retarded. Using personal information from patient files to which he
had access, Oladunjoye attempted to negotiate a stolen Social Secur-
ity check by depositing it into a checking account he had opened in
the name of Stephen Packel, one of the patients at Great Oaks (Count
One). He also opened at least two credit card accounts in the name
of Stephen Packel and incurred charges on the cards (Count Two).
Oladunjoye possessed four driver's licenses in the names of Great
Oaks patients but bearing his photograph, and a Virginia identifica-
tion card in the name of another Great Oaks patient (Count Three).

The probation officer recommended a two-level vulnerable victim
adjustment under USSG § 3A1.1. Oladunjoye objected that the
adjustment was unwarranted because none of the patients were vic-
tims of the offense. He argued that they had not been denied credit
as a result of his activities and were not likely to ever apply for credit
anyway. The probation officer responded that the patients were vic-
tims because their confidential personal records were used by Oladun-
joye to make them unwitting instrumentalities of the offense. At

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sentencing, the district court agreed with the government that the
Great Oaks patients were vulnerable victims.

On appeal, Oladunjoye contends that the adjustment did not apply
because the only victims of his offense were the financial institutions
and business organizations which he defrauded, none of which were
vulnerable victims. He also argues that he did not target the patients.
He does not contend that the patients were not vulnerable, but argues
that they were not victims of the offense of conviction, and that the
adjustment only applies to victims of the offense of conviction. This
court recently considered and rejected his argument in United States
v. Blake, ___ F.3d ___, 1996 WL 183821, at *3 (4th Cir. 1996). In
Blake, this court rejected the reasoning of United States v. Bondurant,
39 F.3d 665, 667-68 (6th Cir. 1994), on which Oladunjoye relies.

The term "offense" as used in the sentencing guidelines includes all
relevant conduct. USSG § 1B1.1, comment. (n.1(1)). Relevant con-
duct includes all acts committed by the defendant in preparation for
the offense of conviction. Therefore, "a victim of the offense" may be
one who is not a victim of the particular offense of conviction. Blake,
___ F.3d ___, 1996 WL 183821, at *3.

Oladunjoye invaded the confidential files of the Great Oaks
patients and appropriated their personal information in preparation for
the fraudulent acts of which he was convicted. He was also convicted
of possessing false identification documents bearing the names of
Great Oaks patients. Under Blake, the patients were victims of the
offense as the term is used in USSG § 3A1.1.

This court has held that before a district court increases a defen-
dant's base offense level under § 3A1.1 it must, first, "determine
whether this particular victim was more vulnerable to the offense than
the world of possible victims" and, second, "determine whether the
defendant specifically targeted the victim because of that vulnerabil-
ity." United States v. Holmes, 60 F.3d 1134, 1136 (4th Cir. 1995).*
When Oladunjoye argues that he did not target the patients, however,
_________________________________________________________________
*The 1995 clarifying amendment to § 3A1.1 deletes the language in
the commentary concerning the victim being made a target because of
his vulnerability. See USSG App. C, amd. 521.

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he means that they were not the targets of his fraudulent acts; he did
not expect to get money from them.

The district court in this case did not make the precise findings cal-
led for in Holmes because Oladunjoye did not contest the Great Oaks
patients' unusual vulnerability at sentencing. Instead, the court
addressed Oladunjoye's argument that the Great Oaks patients were
not victims of the offense at all. However, it is clear that Oladunjoye
targeted the patients as sources of personal information to be used in
his various frauds because of their inability to protect their privacy.
Moreover, the patients' extreme vulnerability to such abuse by their
caretakers was self-evident. Therefore, the district court did not err in
finding that the adjustment applied.

The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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