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United States v. Sunmola

United States Court of Appeals, Seventh Circuit

April 16, 2018

United States of America, Plaintiff-Appellee,
Olayinka I. Sunmola, Defendant-Appellant.

          Argued January 19, 2018

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:13-cr-30272-DRH-1 - David R. Herndon, Judge.

          Before Bauer, Manion, and Rovner, Circuit Judges.

          Bauer, Circuit Judge.

         A grand jury charged Olayinka Sunmola with an eight-count indictment in relation to an online dating scheme. Three days into trial, Sunmola pleaded guilty to all eight counts. Applying a number of enhancements and taking into consideration other § 3553(a) factors, the district court sentenced Sunmola to 324 months in jail with an adjusted restitution payment of $1, 669, 050.98. Sunmola now appeals the district court's application of four sentencing enhancements, restitution calculation, and application of general deterrence in his final sentencing. For the following reasons, we affirm.

         I. BACKGROUND

         Starting in March 2008, Sunmola carried out an international online romance scheme from the Republic of South Africa, targeting middle-aged women in the United States, specifically in Georgia and Illinois. Sunmola and his co-conspirators created profiles on dating websites under fictitious names and led women to believe they were successful businessmen. Sunmola often used pictures of men in U.S. military uniforms as part of his online profile. After gaining the women's trust, Sunmola and his co-conspirators would ask for money and merchandise. These women would ship electronics and make electronic fund transfers under the false claims of financial distress.

         In some instances, Sunmola sexually exploited the victims. He persuaded one woman to pose in a sexually suggestive manner in front of a web camera. Unbeknownst to the victim, he recorded her, posted the video to the internet, and sent a link to her and her relatives with an extortion demand, promising that "by the time he was finished with her she would want to kill herself." He posted nude photos obtained from another woman online, and threatened to post photos of a third woman. During the investigation, authorities also discovered evidence of credit card fraud affecting various businesses.

         On November 20, 2013, a grand jury sitting in the Southern District of Illinois charged Sunmola in an eight-count indictment with conspiracy, in violation of 18 U.S.C. § 371 (Count One); mail fraud, in violation of 18 U.S.C. §§ 1341 and 1342 (Counts Two through Four); wire fraud, in violation of 18 U.S.C. §§ 1343 and 1342 (Counts Five through Seven); and interstate extortion, in violation of 18 U.S.C. § 875(d) (Count Eight).

         On August 9, 2014, authorities arrested Sunmola while he was traveling in London and transferred him to the custody of the United States on February 26, 2015. His initial appearance and arraignment were held on March 4, 2015. He then waived his rights to a detention hearing and was ordered detained pending trial.

         Trial commenced on February 29, 2016. Three days into trial, Sunmola openly pleaded guilty to all counts. The judge asked Sunmola questions to ensure he knowingly and voluntarily entered the pleas. The Government established a factual basis for the pleas, Sunmola admitted to the essential elements of each offense, and the judge accepted the guilty pleas without a plea agreement. The probation officer filed the initial PSR on July 8, 2016. However, through a series of objections and amendments, the parties were working from the fifth amended PSR when Sunmola's sentencing hearing was scheduled to be held.

         Both parties and the district court agreed that the sentencing hearing should be held in two stages. On August 12, 2016, the Government presented its evidence, including victim impact testimony and expert testimony on the psychological impact of Sunmola's scheme on the victims. On February 2, 2017, the district court held the second half of the sentencing hearing where the Government's case agent, United States Postal Inspector Adam Latham, testified under oath. Latham verified the factual accuracy of the Government's sentencing memorandum, the Government's responses to Sunmola's objections to the PSR, and an addendum to the PSR containing 39 additional victims' losses.

         After all the testimony and evidence was presented, the judge considered and overruled each of Sunmola's outstanding PSR objections, largely adopting the findings of the probation officer and, in some instances, the Government's responses. The judge applied a four-level leadership enhancement, a two-level enhancement for acting on behalf of a government agency, a four-level substantial financial hardship enhancement, a two-level vulnerable victim enhancement, a 16-level enhancement for an intended loss of $2, 054, 972.66, and a two-level enhancement due to Sunmola committing the offense outside of the United States. With a base offense level of seven, the application of the enhancements resulted in a total adjusted offense level of 37 and with no prior convictions, a category I criminal history.

         The judge also granted two upward departures the Government requested, one for psychological injury to a victim and a second for gratuitous infliction of injury to a victim. These upward variances resulted in a Guidelines range of 262 to 327 months. The Government advised the judge that the clerk of the court had possession of $220, 000 liquidated assets. The defendant then gave a brief allocution.

         Before making a final determination, the judge noted the importance of general deterrence due to Sunmola's continued contact with individuals in Nigeria. Taking everything into consideration, the judge sentenced Sunmola to 324 months' imprisonment and ordered restitution in the amount of $1, 707, 260.98. The district court later amended the judgment to $1, 669, 050.98 to match the amount stated in the PSR.

         Sunmola now appeals: the four-level "substantial financial hardship" enhancement (U.S.S.G. § 2B1.1(b)(2)(B)); the two-level "vulnerable victim" adjustment (U.S.S.G. § 3A1.1(b)(1)); the two-level enhancement for acting on behalf of a government agency (U.S.S.G. § 2B1.1(b)(9)(A)); the four-level aggravating role adjustment for acting as the organizer or leader (U.S.S.G. § 3B1.1(a)); the loss calculation ...

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