16‐1008‐cr United States v. Kupoluyi

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 22nd day of May, two thousand seventeen. 4 5 PRESENT: JOHN M. WALKER, JR., 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 10 UNITED STATES OF AMERICA, 11 12 Appellee, 13 14 v. No. 16‐1008‐cr 15 16 OLADIPUPO KUPOLUYI, 17 18 Defendant‐Appellant. 19 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 20 21 FOR APPELLANT: DEVIN MCLAUGHLIN, Langrock 22 Sperry & Wool, LLP, Middlebury, 23 VT. 24 25 FOR APPELLEE : RAJIT S. DOSANJH (Miroslav Lovric, on 26 the brief), Assistant United States 1 Attorneys, for Richard S. Hartunian, 2 United States Attorney for the 3 Northern District of New York, 4 Syracuse, NY. 5 6 Appeal from a judgment of the United States District Court for the

7 Northern District of New York (Thomas J. McAvoy, Judge).

8 UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED,

9 AND DECREED that the judgment of the District Court is AFFIRMED in part and

10 VACATED in part, and the matter is REMANDED for resentencing consistent

11 with this order.

12 Defendant Oladipupo Kupoluyi appeals from a judgment of the District

13 Court (McAvoy, J.) sentencing Kupoluyi principally to 33 months’ imprisonment

14 followed by a three‐year term of supervised release. Kupoluyi pleaded guilty to

15 conspiracy to commit bank fraud, mail fraud, and wire fraud, in violation of 18

, 1343, 1344, 1349. On appeal, Kupoluyi argues that the District

17 Court committed procedural error by (1) applying a two‐level enhancement

18 under United States Sentencing Guidelines (“U.S.S.G.”) § 2B1.1(b)(11); (2)

19 applying a two‐level enhancement for use of sophisticated means under U.S.S.G.

20 § 2B1.1(b)(10)(C); and (3) failing to apply a mitigating role adjustment under

21 U.S.S.G. § 3B1.2. We assume the parties’ familiarity with the facts and record of

2 1 the prior proceedings, to which we refer only as necessary to explain our decision

2 to affirm in part and vacate in part, and remand for further proceedings.

3 Kupoluyi argues that the District Court erred in applying a two‐level

4 enhancement under § 2B1.1(b)(11). On this record, however, it is unclear on

5 which subsection of that guideline the District Court relied. The District Court

6 did not refer to any particular subsection, or explain why it applied the

7 enhancement, other than to adopt the calculation in the Presentence Report

8 (“PSR”). But that reference is ambiguous. The original PSR relied on

9 § 2B1.1(b)(l l)(B)(i) (production or trafficking in an unauthorized or counterfeit

10 “access device”); the revised PSR withdrew that reliance and specifically stated

11 that the Probation Department agreed that the subsection “does not apply in this

12 respect,” and relied instead, in its guideline calculation, on subsection (A)(ii)

13 (possession of an “authentication feature”), which the Government now concedes

14 is inapplicable; and the addendum to the revised PSR also alludes to the

15 applicability of subsection (C)(i) (unauthorized use of a means of identification to

16 obtain another means of identification). In discussing the enhancement at the

17 sentencing hearing, neither the prosecutor, defense counsel, nor the District Judge

18 referenced any subsection by number, but all three refer to an “access device” (the

3 1 critical term in subsection (B)(i)), and no one used the terms “authentication

2 feature” or “means of identification [used] to . . . obtain any other means of

3 identification” (the respective critical terms of subsections (A)(ii) and (C)(i)). On

4 appeal, the Government relies primarily on subsection (B)(i), albeit on a different

5 theory than that initially embraced and later rejected by the Probation

6 Department, and alternatively on (C)(i). At oral argument, the Government

7 agreed that it would be appropriate to vacate Kupoluyi’s sentence and remand to

8 the District Court to determine whether the enhancement can be applied under

9 § 2B1.1(b)(11)(C)(i), a subsection to which the District Court never specifically

10 referred at sentencing. In light of the confused state of the record, we vacate

11 Kupoluyi’s sentence and remand to permit the District Court to reassess the

12 applicability of the § 2B1.1(b)(11) enhancement, and, if it continues to find that

13 enhancement applicable, to state on which subsection(s) it relies. In doing so, we

14 express no position on whether the opening of bank accounts in KY’s name was

15 “unauthorized” for purposes of § 2B1.1(b)(11)(C)(i) or on the merits of the

16 Government’s argument for the applicability of § 2B1.1(b)(11)(B)(i). We note that

17 Kupoluyi is scheduled to be released from the custody of the Bureau of Prisons on

18 October 19, 2017. Although we leave it to its discretion, the District Court is

4 1 urged to expedite resentencing on remand, as Kupoluyi may soon complete the

2 term to which he may be resentenced.

3 We have considered Kupoluyi’s arguments relating to the District Court’s

4 imposition of a sophisticated means enhancement under § 2B1.1(b)(10)(C) and the

5 denial of a mitigating role adjustment under § 3B1.2 and conclude that they are

6 without merit. For the foregoing reasons, the judgment of the District Court is

7 AFFIRMED in part and VACATED in part, and the matter is REMANDED for

8 resentencing consistent with this order. In the interest of expedition, this panel

9 will retain jurisdiction over any subsequent appeal, see United States v. Jacobson,

10

(2d Cir. 1994), and should there be such an appeal, the parties

11 should request expedited briefing and argument. The mandate shall issue

12 forthwith.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk of Court

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