[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 31, 2007
No. 06-15691 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00449-CR-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HILARY EGHOSA AGBAI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 31, 2007)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Hilary Eghosa Agbai appeals his 41-month sentence for use of a counterfeit
device, in violation of 18 U.S.C. § 1029(a)(2) and (b)(1). On appeal, Agbai argues
that his sentence was procedurally unreasonable, and thus invalid, because the
district court applied the Guideline range as presumptively reasonable.
Additionally, Agbai contends his sentence was substantively unreasonable. We
AFFIRM.
I. BACKGROUND
A grand jury charged Agbai with one count of bank fraud, in violation of 18
U.S.C. §§ 1344 and 2, and five counts of credit card fraud, in violation of 18
U.S.C. § 1029(a)(2) and (b)(1). Agbai pled guilty to one count of credit card fraud
as part of a plea agreement, and the government agreed to dismiss the remaining
counts in the indictment. The plea agreement, however, also provided that the
government could use the conduct charged in the dismissed counts as part of
Agbai’s relevant conduct in calculating his Guideline range.
According to the Presentence Investigation Report (“PSI”), between 2001
and 2004, Agbai: (1) used stolen credit cards and false identification to access
credit and financial resources; (2) used stolen personal information to obtain new
credit cards, on which he charged thousands of dollars; (3) used a fake driver’s
license and a fraudulently-obtained credit card to lease a vehicle; and (4) opened
fraudulent bank accounts and deposited stolen checks into them. Agbai was
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assisted in his bank fraud and credit card schemes by Kevin Tate; Agbai directed
Tate on various occasions to open fake bank accounts and negotiate funds in those
accounts. In October 2003, Agbai and Tate were arrested after Agbai attempted to
purchase computer equipment using a stolen credit card and a fake driver’s license.
The offense to which Agbai pled guilty took place in January 2004, when Agbai
once again attempted to purchase computer equipment using a stolen credit card
and a fake driver’s license. At the time of his arrest, Agbai possessed the victim’s
name, date of birth, social security number, and address. Agbai had purchased the
identification and the victim’s personal information from a flea market. Again,
Agbai recruited Tate to participate in the credit card and bank fraud schemes, and
he also had provided Tate with the information and identification necessary to open
fraudulent bank accounts. Tate pled guilty to one count of bank fraud and was
sentenced to 24 months of imprisonment.
In preparing the PSI, the probation officer began with a base offense level of
6, then added 12 points due to the amount of loss involved (calculated at
$304,318.34), 2 points because Agbai’s offense involved the use of unlawful
means of identification, and 2 points for Agbai’s leadership role in the offense. As
a result, Agbai had a total offense level of 22 and a criminal history category of I,
which produced an advisory Guideline range of 41-51 months of imprisonment.
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Agbai objected to the PSI as follows: (1) he denied several of the claims by Tate
regarding Agbai’s involvement with Tate; (2) he denied involvement in the bank
fraud scheme with Tate, which accounted for a significant portion of the loss
amount; (3) he sought a reduction for acceptance of responsibility; (4) he claimed
that the restitution total was too high because some of the credit card purchases
were lawful; and (5) he denied recruiting or directing Tate to participate in any of
the schemes and, therefore, should not have received a role enhancement. In light
of his objections, Agbai asserted that the total offense level should have been 10,
resulting in an advisory Guideline range of 6-12 months of imprisonment.
At the sentencing hearing, the district court heard, and deemed credible,
testimony by Tate. As a result, Agbai’s objections–to his involvement in the bank
fraud scheme, to other claims by Tate, and to his role in directing Tate–all failed.
Agbai withdrew his objection to the restitution amount. The district court denied
Agbai’s request for a reduction for acceptance of responsibility because Agbai had
denied his participation in relevant conduct. Thus, the total offense level did not
change as a result of the sentencing hearing.
The district court gave Agbai the opportunity to argue for a particular
advisory Guideline sentence or for a sentence outside the advisory Guidelines.
Agbai asserted that, under § 3553(a), a sentence of 12 months of imprisonment
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would be appropriate. Agbai noted that he had a virtually spotless criminal history
before coming to Atlanta and that he was “redeemable.” R6 at 75. In response, the
government reiterated its recommendation for a sentence of 41 months of
imprisonment, arguing that because Agbai denied much of his most significant
criminal conduct, there was no basis for providing a sentence below the low end of
the advisory Guideline range. The government asserted that Agbai deserved to
serve more time than Tate because Agbai, unlike Tate, had done nothing to assist
the government.
After both sides had completed their arguments, the district court stated:
All right. I’ve been at this for a long time and for prosecutors and
defense lawyers and for judges there’s some cases that are very
interesting and there are some that are cookie-cutter cases.
I remember as a young assistant U.S. Attorney we used to make theft
of mail, forgery and government check cases, and AUSA Gail
McKenzie handled those and I think she must have handled 200 or
300 a year with the aid of the postal inspectors and everyone was just
like every other one.
The reason I’m saying that is that this is a cookie-cutter bank fraud,
credit card fraud case. There’s nothing unusual about it. The
defendant has already gotten credit for having no criminal history.
This is a pervasive kind of offense. Specific and general deterrence is
of great concern to society with this sort of thing.
Behind all of the other charging language is a victim some place that
may have been subject to identity theft and all of the pain and
aggravation that goes with it.
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I would imagine the vast majority of the sentences in this kind of case
are Guideline sentences. Certainly I gave his codefendant a Guideline
sentence or something that approaches these Guidelines. I don’t
remember whether it was a Guideline sentence or not.
So I don’t see any call to give other than a Guideline case because I
think that cookie-cutter cases that are devoid of unusual features ought
to get the same sentence as others similarly situated.
Id. at 78-79. Accordingly, the district court sentenced Agbai to 41 months of
imprisonment. Agbai then “object[ed] to the sentence as an unreasonable sentence
under 18-3553(a), and [] maintain[ed] [his] previous objections as well.” Id. at 81.
II. DISCUSSION
On appeal, Agbai argues that his sentence was procedurally unreasonable,
and thus invalid, because the district court applied the Guideline range as
presumptively reasonable. Agbai relies heavily on our opinion in United States v.
Hunt, 459 F.3d 1180 (11th Cir. 2006), and argues that the district court “treated the
[G]uideline range as presumptively reasonable for an entire class of cases, rather
than for this defendant in particular.” Appellant Br. at 11. According to Agbai, the
district court failed to consider the factors set forth in 18 U.S.C. § 3553(a), as
applied to him, as it was required to do by United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005).
Agbai also argues that his sentence was substantively unreasonable under
the § 3553(a) factors. In support of that argument, he asserts that the nature and
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circumstances of his offense indicate that his sentence is too severe in light of the
relatively small amount of actual loss caused. Agbai contends that the amount of
actual loss was only $16,400.34, and thus, the vast majority of the loss was
intended loss that never materialized. The inclusion of the entire amount of
intended loss in the advisory Guideline calculation resulted in a 12-level increase
for Agbai. He also maintains that: (1) the history and characteristics of his life
demonstrate that the sentence is unreasonable because his life has been, for the
most part, honorable; (2) the need to promote respect for the law and provide just
punishment does not warrant the sentence imposed; (3) the need for deterrence and
to protect the public can be met by a much shorter sentence; (4) the Guidelines
failed to yield a reasonable sentence; (5) the need to avoid unwarranted sentencing
disparities would be served by a sentence below the Guideline range because his
co-defendant, Tate, who already had numerous felony convictions, received a
shorter sentence than Agbai; and (6) the need for restitution would be met by a
shorter sentence because the prison term imposed will make it more difficult for
him to pay the amount of restitution ordered.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005)
(per curiam). “Our review for reasonableness is deferential.” United States v.
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Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (alterations, internal quotations, and
citation omitted). Unreasonableness may be procedural, when the district court’s
procedure does not follow Booker’s requirements, or substantive. See Hunt, 459
F.3d at 1182 n.3.
In Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2468-69 (2007), the
Supreme Court considered, inter alia, what constitutes a legally sufficient statement
of reasons by the district court for imposition of a sentence under 18 U.S.C. §
3553(c). The Court noted that a lengthy explanation is not necessarily required
when a judge decides to follow the Guidelines in a particular case. The Court
stated:
[c]ircumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence is
a proper sentence (in terms of § 3353(a) and other congressional
mandates) in the typical case, and that the judge has found that the
case before him is typical. Unless a party contests the Guidelines
sentence generally under § 3553(a)–that is argues that the Guidelines
reflect an unsound judgment, or, for example, that they do not
generally treat certain defendant characteristics in the proper way–or
argues for departure, the judge normally need say no more.
Id. at ___, 127 S. Ct. at 2468 (emphasis added). The Court also concluded,
however, that “[t]he sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.” Id. (citation
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omitted). In holding that the sentencing judge’s explanation in Rita was adequate,
the Court noted that the sentencing judge listened to the arguments, considered the
supporting evidence, and was fully aware of the defendant’s special conditions and
work history. Id. at ___, 127 S. Ct. at 2469. Ultimately, the sentencing judge
found the defendant’s circumstances insufficient to warrant a sentence below the
Guideline range. Id. The Court added that the sentencing judge could have said
more by noting, for example, that
he thought the Commission in the Guidelines had determined a
sentence that was proper in the minerun of roughly similar perjury
cases; and that he found that Rita’s personal circumstances here were
simply not different enough to warrant a different sentence. But
context and the record make clear that this, or similar, reasoning,
underlies the judge’s conclusion.
Id.
We disagree with Agbai’s assertion that the district court applied the
advisory Guidelines as presumptively reasonable and that its explanation of
Agbai’s sentence was inadequate. The record established that the district court
considered § 3553(a) factors. It mentioned that: (1) there was nothing unique
about Agbai’s case; (2) there was a need for specific and general deterrence; (3)
there were real victims; and (4) there was a need to ensure that Agbai’s sentence
was consistent with those of similarly-situated defendants who commit similar
offenses. As in Rita, while the sentencing judge “might have said more,” see id.,
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the district court stated that it thought the facts made Agbai’s offense a “cookie-
cutter case.” R6 at 78. Essentially the district court indicated that it thought the
advisory Guideline range was “proper in the minerun of roughly similar” cases, see
Rita, ___ U.S. ___, 127 S. Ct. at 2469, and Agbai’s personal circumstances were
simply not different enough to warrant a different sentence. Consequently, the
district court’s explanation of its sentence was adequate, and we cannot say here
that Agbai’s sentence, at the low end of the advisory Guideline range, was
unreasonable given the offense and his conduct.
III. CONCLUSION
The record establishes that district court properly considered 18 U.S.C. §
3553(a) factors in addition to the advisory sentencing Guidelines range. We
cannot say that Agbai’s sentence, at the low end of the advisory range, was
unreasonable. Consequently, we AFFIRM.
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