UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ADEDOYIN ADETOROY, a/k/a

No. 99-4284

Adedoyin Adetoro, a/k/a

Mohammed Fard, a/k/a Cory

Watson, a/k/a Bradley Miller,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Joseph Robert Goodwin, District Judge.

(CR-98-170)

Submitted: September 30, 1999

Decided: November 12, 1999

Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

R. Clarke Vandervort, Charleston, West Virginia, for Appellant.

Rebecca A. Betts, United States Attorney, Philip H. Wright, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Adedoyin Adetoroy* pled guilty to one count of bank fraud in violation of 18 U.S.C.A. § 1344 (West Supp. 1999) and was sentenced

to a term of thirty months' imprisonment. Adetoroy appeals his sentence, challenging the district court's determination of his relevant

conduct, the amount of restitution, an enhancement for obstruction of

justice, and a denial of a downward adjustment for acceptance of

responsibility. We affirm in part, vacate in part, and remand.

Adetoroy first challenges the court's determination of relevant conduct. In addition to his guilty plea to one count of bank fraud, Adetoroy admitted committing certain fraudulent acts in West Virginia

beginning in April 1998. He further admitted involvement with codefendant Olaitan Balogun in committing bank fraud in West Virginia. Adetoroy contends, however, that Balogun independently committed the acts of fraud the court attributed to him as relevant conduct

and that Balogun acted with a separate accomplice in committing

them.

District courts may take "relevant conduct" into account in determining a defendant's sentence whether or not the defendant has been

convicted of the charges constituting the relevant conduct. See U.S.

Sentencing Guidelines Manual § 1B1.3; United States v. Jones, 31

F.3d 1304, 1316 (4th Cir. 1994). Section 1B1.3(a)(1)(A) of the Sentencing Guidelines provides that relevant conduct includes all acts of

the defendant, acts aided and abetted by him, and acts for which he

is otherwise accountable which were "in furtherance of" the offense

of conviction. Further, § 1B1.3(a)(1)(B) provides that all reasonably

foreseeable acts and omissions of others in furtherance of jointly

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*We have maintained the spelling of Appellant's name as it was docketed in the district court.

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undertaken criminal activity, involving a criminal plan, scheme,

endeavor, or enterprise, whether or not charged as a conspiracy, may

be considered relevant conduct when calculating a sentence. In cases

of fraud, § 1B1.3(2) provides for inclusion of all acts mentioned in

§ 1B1.3(B) that were part of the same course of conduct or common

scheme or plan as the offense of conviction. The government must

establish the existence of these reasonably foreseeable acts and omissions by a preponderance of the evidence. See Jones, 31 F.3d at 1316

(citing United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir.

1992)). Whether the government has successfully shouldered its burden of proof is a question of fact reviewed for clear error. See Jones,

31 F.3d at 1316.

The probation department conducted an extensive investigation

into the fraudulent acts of Adetoroy and Balogun from January 1998

to September 1998. The results of that investigation were that Adetoroy, in conjunction with Balogun and Dimiji Bright, engaged in an

extensive scheme to defraud banks in West Virginia and other states

during 1998. At the sentencing hearing, Balogun testified that she and

Adetoroy did engage in fraudulent activities in West Virginia involving opening checking and/or savings accounts under phony names,

"boosting" those accounts with checks written on credit card accounts

or legitimate checking accounts that had been "taken over," and then

withdrawing funds from the accounts before the banks detected the

fraudulent activity. Purchases on the credit cards and bank cards of

these fraudulent accounts were also made.

Secret Service Agent Gina Noschese, who was involved in the

investigation, also testified at the sentencing hearing regarding the

different fraudulent activities by Adetoroy and Balogun. The presentence investigation report, adopted by the district court, along with the

testimony elicited at the sentencing hearing, established that Adetoroy, in concert with Balogun, in concert with Bright, and on his

own, engaged in a well-organized scheme to defraud banks in West

Virginia. The scheme involved several different acts of fraud involving several different aliases and different addresses, yet the method

of operation was similar in every case. Thus, the evidence established

that Adetoroy engaged in virtually an uninterrupted spree of fraudulent acts, all following the same pattern of establishing mail drops,

opening accounts, and making fraudulent transfers from one account

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to another during April 1998, May 1998 and July through September

1998. Accordingly, we find that the district court's factual findings

and determination of relevant conduct were not clearly erroneous. See

United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994).

Adetoroy next contends that the district court's order of restitution

for $54,859.74 includes $5000 from a fraudulent transaction in the

name of John Amoruso for which he should not be held responsible.

Because Adetoroy failed to object to the restitution order during his

sentencing hearing, we review for plain error. See United States v.

Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). Under the Victim and

Witness Protection Act (VWPA) of 1982, the district court may order

a defendant to pay "restitution to any victim" of an offense of conviction. 18 U.S.C. § 3663(a)(1) (West Supp. 1999); see United States v.

Blake, 81 F.3d 498, 506 (4th Cir. 1996) (observing that the authority

of a district court to order restitution is limited to the terms of the

VWPA). As Blake explains, an individual or organization is a "victim" under § 3663 if the act that harms them is either "conduct underlying an element of the offense of conviction, or an act taken in

furtherance of a scheme, conspiracy, or pattern of criminal activity

that is specifically included as an element of the offense of conviction." Blake, 81 F.3d at 506. Additionally, § 3663(a)(3) provides that

"[t]he court may . . . order restitution in any criminal case to the

extent agreed to by the parties in a plea agreement." Therefore, if a

plea agreement states an amount of restitution greater than the loss

attributable to the offense of conviction, the defendant may still be

ordered to pay up to the sum specified in the plea agreement. See

United States v. Broughton-Jones, 71 F.3d 1143, 1147-48 (4th Cir.

1995).

Here, Adeteroy's plea agreement included a provision in which he

assented to pay restitution of $54,825 "[n]otwithstanding the offense

of conviction." J.A. 25. In imposing restitution, however, the district

court did not refer to the agreement and in fact imposed restitution of

$54,859.74, an amount $34.37 higher than the agreed-upon amount.

The order of restitution thus does not appear to have been based on

the agreement of the parties pursuant to § 3663(a)(3).

The award of restitution is also inconsistent with§ 3663(a)(1). The

offense of conviction, as contained in Count Three of the Superseding

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Indictment, encompassed the Bradley Miller and Cory Watson frauds

and the identified victim is Bank One, West Virginia. (JA I, 19). The

presentence report attributes a loss of $16,800 to the Bradley Miller

fraud and $8800 to the Cory Watson fraud. (JA II, 174). Thus, it

appears that the loss for the offense of conviction is $25,600, well

below the amount agreed upon in the plea agreement. Also, the victims as identified by the court at sentencing, Bank One, Chase Manhattan Bank and NationsBank, go beyond the single victim listed in

the indictment and in the PSR for the offense of conviction, which

was Bank One. Further, the frauds committed by Adetoroy that

caused losses to NationsBank and Chase Manhattan did not constitute

an element of the offense of conviction. The court therefore erred in

ordering Adetoroy to pay restitution to NationsBank and Chase Manhattan Bank.

The restitution order of the district court thus was erroneous; moreover, the error was plain in light of the clear language of the VWPA

and the holding of this court in Blake. Further, the imposition of restitution that complied neither with § 3663(a)(1) nor the plea agreement

affected Adetoroy's substantial rights. We also conclude that the circumstances of this case warrant the exercise of our discretion to

notice plain error. See United States v. Olano , 507 U.S. 725, 732-37

(1993) (setting forth standards guiding plain error analysis). Accordingly, we vacate the district court's order of restitution and remand for

imposition of an order of restitution that complies either with the plea

agreement or with § 3663(a)(1).

Adetoroy next contends the district court erred in enhancing his

base offense by two levels for obstruction of justice under USSG

§ 3C1.1 because there was no evidence at the sentencing hearing that

he made materially false or misleading statements and nothing in the

presentence investigation report specified any false or misleading

statement allegedly made by him.

An adjustment for obstruction of justice is warranted "[i]f (A) the

defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the course of the investigation . . . of the instant offense of conviction, and (B) the obstructive

conduct related to (i) the defendant's offense of conviction and any

relevant conduct[.]" USSG § 3C1.1. This adjustment includes provid-

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ing materially false information to a probation officer in respect to a

presentence or other investigation for the court. See USSG § 3C1.1,

comment. (n. 4(h)). We review the district court's factual findings

concerning obstruction of justice for clear error. See United States v.

Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Whether the district

court properly applied § 3C1.1 to the defendant's conduct is reviewed

de novo. See United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir.

1990).

Adetoroy denied involvement in or knowledge of specific acts of

fraud that were included as relevant conduct by both the probation

department after its investigation and the district court. The presentence report listed specific denials Adetoroy made during the presentence investigation interview, and the findings and recommendations

of that report were adopted by the district court. While the court disagreed with the presentence report and determined that two separate

acts of fraud that occurred in January 1998 were not attributable to

Adetoroy, his denials during the presentence investigation encompassed more than those two acts. Adetoroy also denied involvement

in any fraudulent activity in April 1998, in the use of mail drops, in

the Chrnie King fraud, and the Kevin Ossey fraud. At the conclusion

of the sentencing hearing, however, the district court attributed all of

these acts of fraud to Adetoroy as relevant conduct. Therefore, the

district court's determination that materially false information was

given by Adetoroy during the presentence investigation was not

clearly erroneous. Furthermore, Adetoroy's enhancement was based

on his denials of involvement in or knowledge of several acts of fraud

which the court determined were part of his scheme to defraud banks

in West Virginia. The denial of this conduct clearly related to the relevant conduct in his case and, therefore, directly affected his sentence.

Therefore, the court correctly determined that Adetoroy's denials of

relevant conduct fell within § 3C1.1 and the application notes.

Finally, Adetoroy argues that he should have received a downward

adjustment, pursuant to USSG § 3E1.1(a), for acceptance of responsibility. He contends that the court failed to give consideration to the

degree of his cooperation in the investigation.

The Sentencing Guidelines provide for a two-level decrease of the

offense level if the defendant clearly demonstrates acceptance of

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responsibility for his offense. See USSG§ 3E1.1(a). The application

notes to § 3E1.1 explain that a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true

has acted in a manner inconsistent with acceptance of responsibility.

See USSG § 3E1.1, comment. (n. 1(a)).

The district court found at the conclusion of the hearing that Adetoroy had not fully accepted responsibility for his involvement in the

fraudulent scheme and denied the decrease in offense level for acceptance of responsibility. The record is clear that Adetoroy did not

acknowledge involvement in fraudulent acts which the court ultimately determined were part of the spree of fraudulent conduct he

committed in West Virginia in 1998 and therefore were relevant conduct. Further, the relevant portion of the presentence investigation

report, which was adopted by the court, recommended denying Adetoroy the downward adjustment and listed specific acts of fraud for

which Adetoroy denied responsibility.

Based on our review of the record, particularly the transcript of the

sentencing hearing wherein Adetoroy personally addressed the court,

we find the district court's factual findings and determination regarding Adetoroy's lack of acceptance of responsibility were not clearly

erroneous.

For the foregoing reasons, we affirm the district court's findings

and determination with respect to the issues of relevant conduct, the

enhancement for obstruction of justice, and denial of acceptance of

responsibility. We vacate the order of restitution and remand for further consideration by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

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