United States Court of Appeals

for the Fifth Circuit

No. 22-30289

United States of America, 

Plaintiff—Appellee,

versus

Chukwuma N. Okoye, Jr., 

Defendant—Appellant.

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 5:21-CR-36-1

Before Graves, Ho, and Duncan, Circuit Judges.

Per Curiam:*

Defendant Chukwuma Okoye challenges the amount of restitution 

ordered by the district court for his participation in a criminal conspiracy, 

alleging that proceeds of the entire conspiracy were not sufficiently 

established as foreseeable as required by the statute. Because the record 

provides sufficient basis for establishing that the amount ordered was 

foreseeable, we affirm.

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2023

Lyle W. Cayce

Clerk

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I.

This case arises out of Defendant’s participation—along with two

indicted co-defendants who have since fled the country—in a criminal 

conspiracy that illicitly obtained funds intended for emergency relief during 

the COVID-19 pandemic. The scheme involved using the stolen personal 

identifying information from at least 29 different individuals to apply for 

loans from the Small Business Administration and unemployment insurance 

from the Washington State Employment Security Department. Those funds 

were then deposited into PayPal accounts, which were in turn used to load 

Green Dot debit cards—both of which were also created using stolen 

personal identifying information. Those cards were then used at online 

retailers and various physical stores to purchase merchandise and money 

orders as well as to withdraw cash. The scheme was uncovered after the 

discovery of these transactions at a Walmart store in Bossier City, Louisiana, 

with investigators later concluding that $941,244 was laundered through that 

store alone in just 44 days. 

Defendant was indicted and subsequently entered into an agreement 

with the government by which he pled guilty to conspiracy to use 

unauthorized access devices. As part of the plea agreement, prosecutors and 

Defendant jointly “agree[d] and stipulate[d] that the reasonably foreseeable 

loss amount as to [Defendant’s] role in the conspiracy is between $250,000 

and $550,000, based on the number of transactions conducted at the Bossier 

City Walmart by [Defendant] and other conspirators,” though they added 

the caveat that the description “d[id] not represent the totality of the 

evidence obtained in this case.” Subsequently, the presentence report (PSR) 

detailed that the total amount deposited into the PayPal accounts from the 

federal and state agencies was $2,379,860 and recommended that Defendant 

be held responsible for restitution of that amount pursuant to the Mandatory 

Victim Restitution Act (MVRA), 18 U.S.C. § 3663A. 

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Defendant filed his objections to the restitution amount, citing the 

stipulated loss range and alleging that he “was a small part of a much larger 

conspiracy.” The probation officer declined to amend the restitution 

amount, explaining how the evidence indicated that Defendant was 

responsible for a much larger loss than the amount stipulated. The district 

court overruled Defendant’s objection to the restitution amount, explaining 

that “[t]he reasons related by the probation officer [made] perfect sense.” 

After adopting the PSR’s findings, the court ordered Defendant to pay the 

full $2,379,860 in restitution and made the restitution joint and several with 

his co-defendants. Defendant objected to the restitution order and filed a 

timely notice of appeal. 

II.

The MVRA mandates restitution to victims of offenses committed by 

fraud or deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). “To be a victim under the 

MVRA, a person or organization must suffer a foreseeable loss as a result of 

the conduct underlying the convicted offense.” United States v. Benns, 810 

F.3d 327, 329 (5th Cir. 2016). The MVRA also requires that the restitution 

award must reflect “the value of the . . . loss.” 18 U.S.C. § 

3663A(b)(1)(B)(i)(I). 

This court reviews the legality of a restitution order de novo and its 

amount for abuse of discretion. United States v. Williams, 993 F.3d 976, 980 

(5th Cir. 2021). A factual finding concerning the amount is reviewed for clear 

error. Id. There is no clear error if a factual finding is plausible in light of the 

record as a whole. Id.

III.

Defendant’s contention, laid out in the two-page argument section of

his brief, is that the government failed to establish that any loss above the 

range stipulated in the plea agreement was foreseeable. He asserts that the 

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government only established that $2,379,860 was the total amount laundered 

and did not make sufficient further findings to establish the foreseeability of 

that total amount. 

But as Defendant admits, the district court was not bound by the 

stipulation. And the record goes far beyond what the stipulation contained. 

While the stipulated facts focus on Defendant’s role in making purchases and 

withdrawals with the debit cards, the PSR details how Defendant and his coconspirators were responsible for utilizing stolen personally identifiable 

information to open the PayPal accounts into which the stolen relief funds 

were all deposited and for transferring the money to the debit cards. The 

probation officer’s response to Defendant’s objections to the PSR also detail 

their culpability in the purchases and withdrawals far beyond those included 

in the stipulation, explaining how they visited Walmart stores in 27 cities 

across Oklahoma, Arkansas, Texas, and Louisiana. This provides a sufficient 

basis for establishing Defendant’s involvement in the entirety of the criminal 

scheme, rather than merely playing a small role in the purchases and 

withdrawals at a single Bossier City Walmart store.1

The record is open to different plausible interpretations as to whether 

the responsibility for these actions was Defendant’s alone or shared with his 

1 Without rebuttal evidence to show that information in the PSR was “materially 

untrue, inaccurate or unreliable,” the district court can adopt the contents of the PSR. 

United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001). Here, the defendant’s objections 

to it don’t contain any new evidence to demonstrate his allegedly minimal role in the 

scheme. To be sure, “[t]he PSR . . . cannot just include statements, in the hope of 

converting such statements into reliable evidence, without providing any information for 

the basis of the statements.” Id. But that’s just not the case here, with the PSR 

documenting how information was gathered by Walmart’s Global Investigations Team, the 

Bossier City Police Department, and others. And the PSR makes clear that “[t]he total 

amount deposited into the 29 PayPal account from the [Small Business Administration] 

was $2,148,200; and the amount deposited by the [Washington State Employment Security 

Department] was $231,660, for a total . . . loss amount of $2,379,860.” 

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two co-conspirators. But we need not wade into allocating liability among the 

three because “a participant in a conspiracy . . . is legally liable for all the 

actions of [his] co-conspirators in furtherance of this crime” and “[t]he 

district court was therefore well within its discretion to order restitution for 

the losses resulting from the entire fraudulent scheme and not merely the 

losses directly attributable to [Defendant’s] actions.” United States v. 

Ismoila, 100 F.3d 380, 398–99 (5th Cir. 1996). See also United States v. 

Shelton, 694 F. App’x 220, 222–25 (5th Cir. 2017) (applying this rule in the 

MVRA context). 

* * *

For these reasons, we affirm.

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James E. Graves, Jr., Circuit Judge, dissenting:

I disagree with the majority’s conclusion that the amount of 

restitution ordered was foreseeable in light of the stipulation of facts. 

Because I would vacate and remand for resentencing, I respectfully dissent.

Chukwuma Okoye pleaded guilty pursuant to a plea agreement to 

conspiracy to use unauthorized devices. The factual basis included a 

stipulation of facts that was signed and agreed to by both parties. The parties 

stipulated that “the reasonably foreseeable loss amount as to Okoye’s role in 

the conspiracy” was “between $250,000 and $550,000, based on the number 

of transactions conducted at the Bossier City Walmart by Okoye and other 

conspirators.” (Emphasis added). The factual basis listed only three specific 

transactions of $1,003.74 involving Okoye at one Walmart in Bossier City. 

Significantly, the parties also stipulated that the pin number for the card 

Okoye used was provided to him by a co-conspirator.

The factual basis also recounted the involvement of Patrick 

Madubuko, Barnabas Akporehe, and others, and the use of Green Dot cards 

funded by the Small Business Administration (SBA) and the Washington 

State unemployment insurance via 29 PayPal accounts at one Walmart store 

in Bossier City. The factual basis made clear that the government knew the 

extent of the conspiracy at the time it entered into the plea agreement. 

Importantly, the factual basis also said: “The above-described facts do not 

represent the totality of the evidence obtained in this case. However, the 

parties signing below agree and stipulate that the preceding paragraphs 

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adequately describe Chukwuma N. Okoye, Jr.’s role in the offense.”1

(Emphasis added).

After Okoye’s guilty plea was secured based on a binding agreement 

that he was responsible for an amount between $250,000 and $550,000

involving transactions in Bossier City, the government then moved the mark 

by introducing a Presentence Investigative Report (PSR) seeking restitution 

in the amount of $2,379,860, which the district court granted. The PSR also 

sought to give Okoye a 16-level enhancement because the loss was more than 

$1.5 million. The district court correctly sustained Okoye’s objection as to 

that enhancement, instead giving him a 12-level enhancement instead for an 

intended loss of $550,000.2 But the district court erroneously overruled 

Okoye’s objection to the restitution amount, saying that “the reasons related 

by the probation office make perfect sense to me.” The district court then 

adopted the PSR’s findings and ordered Okoye to pay restitution of 

$2,379,860.

 The district court ordered the higher amount of restitution despite 

the government’s concessions in its written response to Okoye’s objections 

to the PSR which said that it “agrees that the loss amount reasonably 

foreseeable to Okoye is between $250,000 and $550,000 as set forth in the 

factual basis” and “Okoye should be ordered to pay restitution in an amount 

between $250,000 and $550,000.” Notably, the government argues on 

appeal that the district court did not err.

1 Both the majority and the probation officer disregard the second sentence of this 

quote. The probation officer repeatedly relied on only the first sentence as meaning he was 

free to expand the evidence to which the government had already stipulated.

2 Okoye was sentenced to 46 months, which was at the top of his guidelines range

of 37-46 months. 

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The majority now affirms “[b]ecause the record provides sufficient 

basis for establishing that the amount ordered was foreseeable.” 3

 I disagree. 

The amount that the parties stipulated to was what was foreseeable. 

Moreover, the amount that went through the Bossier City Walmart and that 

the Walmart investigator attributed to this group, as discussed above, was 

less than $1 million. Authorities already seized $719,496. That puts the loss 

within the $250,000 and $550,000 stipulated amount.

The majority opinion says, “as defendant admits, the district court 

was not bound by the stipulation. And the record goes far beyond what the 

stipulation contained.” The majority is correct that the sentencing 

guidelines state that the court is not bound by the stipulation. See U.S.S.G. § 

6B1.4(d).4 However, the government is bound by the stipulation, as this 

court has repeatedly concluded.

“Evidentiary stipulations are binding on the parties,” United States v. 

Banks, 624 F.3d 261, 264 (5th Cir. 2010) (citing United States v. Cantu, 510 

F.2d 1003, 1004 (5th Cir. 1975). “A judicial admission is a formal concession 

in the pleadings or stipulations by a party or counsel that is binding on the 

party making them. Although a judicial admission is not itself evidence, it 

has the effect of withdrawing a fact from contention.” Martinez v. Bally’s, 

244 F.3d 474, 476 (5th Cir. 2001).

The majority relies on the probation officer’s response to Okoye’s 

objections as providing a sufficient basis for Okoye’s “involvement in the 

3 The “record” the majority references is the PSR and the probation officer’s 

response to Okoye’s objections to the PSR, discussed more fully herein.

4 The district court also cited United States v. Gremillion, 418 Fed. App’x 273 (5th

Cir. 2011), for this proposition. However, Gremillion is both unpublished and 

distinguishable, as it involved a situation where the defendant did not plead guilty pursuant 

to a binding plea agreement. Id. at 275.

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entirety of the criminal scheme, rather than merely playing a small role in the 

purchases and withdrawals at a single Bossier City Walmart store.”5

 The 

majority then says, “[t]he record is open to different plausible interpretations 

as to whether the responsibility for these actions was [Okoye’s] alone or 

shared with his two co-conspirators.”

The probation officer’sresponse to Okoye’s relevant objection set out 

a list of Walmart stores in Oklahoma, Arkansas, Texas and Louisiana that the 

three men allegedly visited and cited the PSR at ¶¶ 21, 23, 29 and 56.6 

Paragraph 21 of the PSR said, “[t]he [Walmart] investigator believed there 

were more stores that had been used including stores in Arkansas, Louisiana, 

5 In footnote 1, the majority says that “[w]ithout rebuttal evidence to show that 

information in the PSR was ‘materially untrue, inaccurate or unreliable,’ the district court 

can adopt the contents of the PSR,” citing United States v. Taylor, 277 F.3d 721, 724 (5th 

Cir. 2001). The majority acknowledges that Taylor also says: “The PSR, however, cannot 

just include statements, in the hope of converting such statements into reliable evidence, 

without providing any information for the basis of the statements.” Id. (internal marks and 

citation omitted). The majority then says: “But that’s just not the case here, with the PSR 

documenting how information was gathered by Walmart’s Global Investigations Team, the 

Bossier City Police Department, and others.” The majority also quotes a statement in the 

PSR about money from the SBA and Washington state that was deposited into PayPal 

accounts. Significantly, the PSR in no way connects Okoye to Washington state, the PayPal 

accounts, or those amounts, as discussed herein. As quoted from Taylor above, merely 

including such statements in no way converts them into reliable evidence. Moreover, 

$719,496.42 of the amount referenced by the majority was already seized by authorities. 

The majority’s claim is unsupported by the PSR. Nothing in the PSR documents how 

Okoye was responsible for a foreseeable loss of $2,379,860. Instead, as discussed more fully 

herein, the PSR documents that Okoye was responsible for three transactions of $1,003.74 

and that the government stipulated the reasonably foreseeable loss attributed to Okoye’s 

role in the conspiracy was between $250,000 and $550,000 to induce a guilty plea before 

reneging on the stipulation. The majority now ignores both the record and precedent, 

thereby nullifying the effect of legal stipulations and condoning the fraudulent inducement 

of guilty pleas.

6 The probation officer follows a troubling pattern of citing his original statement 

of facts without a source as authority for stating them a second time throughout his 

responses. However, this circular logic does not establish an indicia of reliability. 

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Texas, and Oklahoma. An aggregate amount of $960,324 was the amount 

the Walmart investigator calculated this particular group amassed from 

unloaded gift cards.” (Emphasis added).

Paragraphs 23 and 29 referenced the response from Green Dot, 

clusters of addresses in Texas, and various transactions. However, paragraph 

23 did not mention Okoye, and paragraph 29 only possibly mentioned him to 

the extent that it said transactions at the 8 oz. Burger Bar in Bossier City 

matched a participating Walmart employee’s statement of eating there with 

“the suspects.” Paragraph 29 also said that the “total amount of money that 

was transferred from PayPal to Green Dot cards was $1,339,600.”7

Paragraph 56 essentially blamed Okoye for the entire conspiracy and 

said:

The investigative material indicates the defendant 

defrauded the Cares Act and/or the Washington State 

Unemployment Insurance in that he, using the identity of at 

least 29 people, applied for and received loans and 

unemployment benefits. The defendant then laundered the 

money by opening PayPal accounts in the names of the victims 

and transferred the money to Green Dot debit cards. To obtain 

the laundered money from the Green Dot cards, the defendant 

traveled in rented cars (from Dallas, Texas) to areas (mostly) 

in Arkansas, Oklahoma, and Louisiana . . . .

Other than the broad statement that, “[t]he investigative material 

indicates,” this paragraph offered no source for any of the alleged facts. 

However, as discussed above, paragraph 21 said that the source for part of it 

is an investigator from Walmart, and the facts were what he “believed.” The 

7 The PSR does not address what happened to the remainder of the $2,379,860.

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PSR also reflected that Green Dot and PayPal allegedly replied to requests

and provided partial information but neither identified Okoye as having any 

involvement. The PSR discussed the statements of the three Walmart 

employees who were involved in the conspiracy, but the reference is 

repeatedly to “the suspects” without identifying Okoye. One Walmart 

employee specifically referenced someone named “Steve.” The PSR also 

said that one of the participants, Willie Townsel, provided an interview and 

said that he got the cards and pin numbers from Madubuko and Akporehe. 

The PSR specifically referenced Okoye in other paragraphs though. 

For example, in paragraph 30 the PSR stated that a comparison of records 

from the Horseshoe Casino and Green Dot transactions revealed that 

Madubuko was a guest at the hotel on specific days the Walmart employees 

alleged. It then says, “The following suspects were also developed: Patrick 

Madubuko, Barnabas Akporehe, Willie Townsel, and Okoye. These names 

also matched information from the Margaritaville Casino/Hotel.” The PSR 

does not explain what exactly that is supposed to mean. In paragraph 31, the 

PSR said that the Walmart employees were able to identify Okoye and others

in a photo lineup. However, there is no explanation as to what that means 

beyond the fact that Walmart employees recognized photos of the guys they 

had been helping and socializing with at the casino hotel. There is also no 

indication that any of the Walmart employees ever said that Okoye set up any 

of the PayPal accounts or Green Dot cards or that he had more than the role 

stipulated to by the government.

This court has previously concluded that a probation officer’s 

conclusions lack an indicia of reliability when there is nothing else in the 

record to support them and they do not provide the source. See United States 

v. Shacklett, 921 F.2d 580, 584 (5th Cir. 1991). Such is the case here. 

Additionally, Okoye’s indictment did not mention any transactions in 

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Arkansas or Oklahoma; it only mentioned the three transactions in Bossier 

City. 

There is no evidence that Okoye even had the pin number for the 

Green Dot card(s) he used. Instead, the government stipulated that Okoye 

obtained the pin number from a co-conspirator. That is an indication that 

Okoyewas not involved in setting up the PayPal accounts or Green Dot cards. 

Also, the PSR recites nothing that directly connects Okoye to Washington 

state, the SBA or the PayPal accounts. 

This court has previously said that the PSR cannot merely include a 

recitation of conclusions “in the hope of converting such statements into 

reliable evidence, without providing any information for the basis of the 

statements.” United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001). 

Further, “[b]ald, conclusionary statements do not acquire the patina of 

reliability by mere inclusion in the PSR.” United States v. Elwood, 999 F.2d 

814, 817-18 (5th Cir. 1993). The PSR is rife with bald, conclusory statements

that have now been accepted as fact.8 

Here, there was a stipulation of facts. Because they were stipulated 

to, both Okoye’s role in the conspiracy and the amount of foreseeable loss

were withdrawn from contention. See Martinez, 244 F.3d at 476. Also, the 

8 The government asserts that Okoye “did not rebut the evidence in the 

presentence report.” The government does not explain how Okoye would have rebutted 

evidence that did not exist. Again, nothing in the PSR directly tied Okoye to the SBA, 

Washington state, or setting up either the PayPal accounts or Green Dot cards. The 

government also asserts that Okoye is liable in restitution for the reasonably foreseeable 

losses caused by their co-conspirators. But nothing in the PSR directly tied Madubuko or 

Akporehe to the SBA, Washington state or setting up the PayPal accounts. There is 

arguably evidence indicating that Madubuko and/or Akporehe were involved in setting up 

the Green Dot cards, as Townsel said they provided the pin numbers. But there is not 

substantial evidence that Okoye played a much larger role than what was in the stipulation.

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stipulated facts are just as binding on the government as they are on Okoye. 

See Banks, 624 F.3d at 264. 

This court has said that a “trial court may disregard stipulations 

between parties only if accepting them would be manifestly unjust or if the 

evidence contrary to the stipulation was substantial.” United States v. Ret.

Serv. Group, 302 F.3d 425, 430 (5th Cir. 2002) (quoting Hymel v. Comm’r, 

794 F.2d 939, 940 (5th Cir. 1986). Here, accepting the stipulation between 

Okoye and the government would not be manifestly unjust, and there is not 

substantial evidence contrary to the stipulation. The district court did not 

address either finding before disregarding the stipulation and overruling 

Okoye’s objection.

The district court had no basis for even considering a much higher 

amount for restitution until the government reneged on the stipulation and 

used the PSR to seek more time and more restitution after Madubuko and

Akporehe fled the country. The district court clearly erred in finding that the 

amount of loss was $2,379,860 rather than within the stipulated range. The 

majority now fails to provide any authority to support a conclusion that the 

government is not bound by a binding agreement regarding Okoye’s role and 

the amount of reasonably foreseeable loss attributable to him. Because I 

would vacate and remand for resentencing, I respectfully dissent.

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