UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 92-1686

______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE EVBUOMWAN,

Defendant-Appellant.

______________

Appeal from the United States District Court

for the Northern District of Texas

______________

( May 18, 1993 )

Before GOLDBERG and WIENER, Circuit Judges.*

GOLDBERG, Circuit Judge:

Joe Evbuomwan appeals his sentence for one count of credit

card fraud. Finding that the district court misapplied U.S.S.G §

1B1.3 in calculating Evbuomwan's sentence, we remand this case for

resentencing.

* Judge Garwood participated in the oral argument of this case but

subsequently thereto recused himself. Accordingly, he did not

participate in this de cision. The case is being decided by a

quorum. 28 U.S.C. 46(d).2 BACKGROUND and PROCEEDINGS BELOW

Evbuomwan pled guilty to one count of credit card fraud, in

violation of 18 U.S.C. § 1341, for obtaining an Exxon credit card

under a false name. Evbuomwan was sentenced to eighteen months in

custody plus two years of supervised release.

The total loss attributable to Evbuomwan's credit card fraud,

the offense to which Evbuomwan pled guilty, was $1,500. However,

the trial cou rt calculated Evbuomwan's sentence using a base

offense level of $90,471. The district court reached the $90,471

f igure by applying § 1B1.3 of the Federal Sentencing Guidelin es,

under which a defendant's base offense level may be adjusted to

accou nt for the "reasonably foreseeable acts" of others taken in

the "furtherance of a jointly undertaken criminal activity."

Of the $90,471, at least $66,000 is attributable to losses

arising from the "Bite Electronics" check fraud scheme perpetrated

against the NCNB Bank by Michael Aakh ideno and Mark Dorenuma.

Aakhideno and Dorenuma opened a checking account at the NCNB Bank

under the name of "Bite Electronics," and wrote checks on that

account to pay off fraudulently obtained credit cards. Evbuomwan

was never charged with participating in this check fraud scheme or

with obtaining the credi t cards paid off with the NCNB checks.

Evbuomwan's appeal challenges the district court's application

of § 1B1.3 in calculating Evbuomwan's base offense level.

Specifically, Evbuomwan contends that the district court erred by

including the losses incurred by the NCNB bank as a result of the3

Bit e Electronics check fraud scheme in Evbuomwan's base offense

level. A "sentence imposed as a result of an incorrect application

of the sentencing guidelines must be reversed even if reasonable."

U.S. v. Mejia-Orosco

, 867 F.2d 216, 218 (5th Cir. 1989) cert. den.

492 U.S. 924 (1989).

ANALYSIS

Under U.S.S.G § 1 B1.3, effective at the date of Evbuomwan's

sentencing in August 1992, a defendant's base offense level could

be adjusted on the basis of "all acts and omissions committed or

aided by the defendant, or for which the defendant would be

otherwise accountable ." The commentary clarified when a defendant

would be "otherwise accountable:"

In the case of criminal activity un dertaken in concert

with others, whether or not charged as a conspiracy, the

conduct for which the defendant 'would be otherwise

accountable' also includes conduct of others in

furtherance of the execution of the jointly-undertaken

criminal activity that was reasonably foreseeable by the

defendant. Because a count may be broadly worded and

include the conduct of many participants o ver a

substantial period of time, the scope o f the jointlyundertaken criminal activity, and hence the relevant

conduct, is not necessarily the same for every

participant. Where it is established that the conduct

was neithe r within the scope of the defendant's

agreement, nor was reasonably foreseeable in connection

with the criminal activity the de fendant agreed to

jointly undertake, such conduct i s not included in

establishing the defendant's offense level under this

guideline. U.S.S.G. § 1B1.3, Application Note 1.

Under § 1B1.3, to hold Evbuomwan accountable for the losses

arising out of the Bite Electronics check fraud scheme, the

government must prove that: (1) the Bite Electr onics check fraud4

scheme was within the scope of Evbuomwan's agreement to j ointlyundertake criminal activities with Aakhideno and Dorenuma, and (2)

that the check fraud scheme was reasonably foreseeable to

Evbuomwan. While the district court found that Aakhideno and

Dorenuma's participation in the check fraud scheme was reasonably

foreseeable to Evbuomwan, the lower court did not address the

question of whether the Bite Electro nics check fraud scheme was

within the scope of Evbuomwan's agreement to jointly undertake

criminal activities with Aakhideno and Dorenuma, or even whether

Evbuomwan agreed to jointly undertake any criminal activities with

Aakhideno and Dorenuma.

The government's Pre-Sentence Report ("PSR") stated that "the

total loss attributable to the defendant's involvement in the

instant offense is $90,471." On the basis of this figure, the PSR

recommended a sentence increase on the basis of a loss exceeding

$70,000. Evbuomwan filed an objection to the PSR's computation of

the amount of loss, claiming that much of the alleged loss arose

from the fraudulent acts of third parties with whom Evbuomwan never

a greed to jointly undertake criminal activities. The government

responded to Evbuomwan's objection in an Addendum to the PSR. The

response stated in part:

The U.S. Secret Service Agents determined that the loss

cause by Mark Dorenuma was approximately $ 90,471. Even

though the defendant might not have had actual knowledge

that Co-offender Dorenuma was so extensively involved in

mail fraud and credit card fraud, it is reasonably

foreseeable that the defendant would at least 'suspect'

that his as sociate Dorenuma was involved in the same

criminal activity that the defendant and the ot her two

co-offenders were involved in. As stated in U.S.S.G §

1 B1.3 Application Note 1, in the case of criminal5

activity undertaken in conc ert with others, whether or

not charged as a conspi racy, the conduct for which the

defendant 'would be otherwise accountable' also includes

conduct of others in furtherance of the execution of the

jointly undertaken criminal activity that was reasonably

foreseeable by the defendant.

Significantly, while the PSR Addendum found that it was

reasonably foreseeable "that the defendant would a t least

'suspect'" Dorenuma's activity, the PSR Addendum did not claim that

Evbuomwan agreed to j ointly undertake any criminal actions with

Dorenuma.

At the sentencing hearing , Evbuomwan again objected to the

PSR's calculation of his base offense level, claiming that the

government had produced no evidence showing that Evbuomwan agreed

to jointly undertake criminal activities with Aakhideno or

Dorenuma. At the close of the hearing, the district court decided

to calculate Evbuomwan's sentence using the base offense level

recommended in the PSR, explaining:

I believe that it was reasonably foreseeable when you got

all these interconnected items of evidence, I don't have

any question in my mind that these individuals each knew

that the others were up to something they weren't suppose

to be up to and I think he's responsible under the

guidelines. So I'm going to adopt and accept the

findings contained in the probation report as well as the

addendum.

The district court's analysis repeats the error committed by

the government in its Addendum PSR. While finding that the acts of

Aak hideno and Dorenuma were reasonably foreseeable to Evbuomwan,

the cou rt never considered whether Evbuomwan agreed to jointly

undertake c riminal acts with Dorenuma and Aakhideno, and whether

the Bite Electronics check fraud scheme was within the scope of any1 The revised guidelines are not applicable to the

defendant. However, as we explained in United States v.

Aguilera-Zapata , 901 F.2d 1209, 1213 (5th Cir. 1990), if an

amendment

was intended only to clarify Section 1B1.3's

application and, therefore, implicitly was not intended

to make any substantive changes to it or its

commentary, we may consider the amended language of

Application Note 1 to Section 1B1.3 even though it was

not effective at the time of the commission of the

offense in question.

6 such agreement.

The Commentary to § 1B1.3 dictates that a defendant can be

sentenced on the basis of the "conduct of others in furtherance of

the execution of the jointly-undertaken criminal activity " that was

reasonably foreseeable by the defendant. Application Note 1. The

Commentary emphasizes that if "it is established that the conduct

was [not] within the scope of the defendant's agreement

. . . such

conduct is not included in establishing the defendant's offense

level under this guideline." Id

.

The revised Sentencing Guidelines, effective November 1, 1992,

clarify the requirements for sentence enhancement under § 1B1.3 and

describe a situation analogous to the case at hand in example

number (5):

Defendant O knows about h er boyfriend's ongoing drugtrafficking activity, but agrees to participate on only

one occasion by making a delivery for him at his request

when he was ill. Defendant O is accountable under [§

1B1.3] for the drug quantity involved on that one

occasion. Defendant O is not accountable for the other

drug sales mad by her boyfriend because those sales were

not in furtherance of her jointly undertaken cri minal

activity (i.e., the one delivery). 1

The above example illustrates that the mere knowledge that

criminal acti vity is taking place is not enough for sentence7

enhancement under § 1B1.3. The rule does not hold accountable any

person who reasonably suspects that crim inal activity is taking

place, regardless of their own involvement. To hold a defendant

accountable for the crime of a third person, the government must

establish that the defendant agreed to jointly undertake criminal

activities with the third person, and that the particular crime was

within the scope of that agreement.

A finding that Evbuomwan agreed to jointly undertake criminal

activities with Aakhideno and Dorenuma, and that the Bite

Electronics scheme was within the scope of that agreement, is an

absolute prerequisite to calculating Evbuomwan's base offense level

on the basis of the loss arising from the Bite Electronics scheme.

If Evbuomwan did not agree to jointly undertake criminal activities

with Aakhideno and Dorenuma, or if the Bite Electronics check fraud

scheme was not in the scope of Evbuomw an's agreement, the

government and lower court's findings that the check fraud scheme

was reasonably foreseeable is simply irrelevant. The appropriate

application of § 1B1.3 requires giving temporal primacy to the

determination of whether a defendant has agreed to join tly

undertake a criminal activity. If the defendant has not joined the

criminal activity, it does not matter that he could have foreseen

the criminal act. The reasonably foreseeable standard applies only

after it is shown that a jointly undertaken activity has taken

place.

In U.S. v. Rivera

, 898 F.2d 442 (5th Cir. 1990), the district

court, in calculating the defendant's base offense level, adopted8

the government's pre-sentence report's inclusion of quantities of

heroin attributable to the defendant's co-defendants. On appeal,

the defendant argued that the district court erred in adopting the

pre-sentence report because the r ecord contained no "factual

finding that Rivera was part of a jointly-undertaken scheme to

distribute heroin with any of his co-defendants." I d

. at 446. We

remanded the case to the district court for resentencing,

explaining that "in the absence of a joint undertaking or plan, the

quantities of heroin distributed by persons other than Rivera

should not have been included in the calculation of his base

offense level." Id

. See also U.S. v. Mir , 903 F.2d 825 (5th Cir.

1990)(remanded for resentencing because there was "no finding that

the conduct of the other persons named in the indictment was within

the scope of [defendant's] agreement").

The government concedes tha t the trial court never ruled on

whether Evbuomwan agreed to jointly undertake the relevant criminal

activity, but argues that this ruling is implicit in the trial

court's adoption of the government's Addendum PSR. Unfortunately,

the Addendum PSR also does not make a finding that Evbuomwan agreed

t o jointly undertake the criminal activity. The government

maintains that this finding is implicit in the fact that the

Addendum PSR correctly recites § 1B1.3 after stating its

conclusion. We cannot assume that the trial court complied with §

1B1.3 by making an implicit ruling on the basis of the Addendum

PSR's implicit finding. We do not tolerate inferences based on

inferences. We remand this case for an explicit ruling on whether9

Evbuomwan agreed to jointly undertake any criminal activi ty with

Dorenuma and Aakhideno, and if Evbuomwan did agree, whether the

Bite Electronics check fraud scheme was within the scope of that

agreement.

CONCLUSION

For the foregoing reasons we VACATE Evbuomwan's sentence and

REMAND this case to the district court for resentencing consistent

with this opinion.