21-2573 United States v. Keita

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of June, two thousand twenty-two.

Present: ROSEMARY S. POOLER, ROBERT D. SACK, ALISON J. NATHAN, Circuit Judges.

UNITED STATES OF AMERICA,

Appellee,

v. 21-2573-cr

ALSENY KEITA, AKA SEALED DEFENDANT 1,

Defendant-Appellant. 1

For Appellee: KEDAR S. BHATIA, Assistant United States Attorney (David Abramowicz, Assistant United States Attorney, on the brief),

1 The Clerk of Court is directed to amend the caption as above. for Damian Williams, United States Attorney for the Southern District of New York, New York, New York.

For Defendant-Appellant: MATTHEW KELLER, Barket Epstein Kearon Aldea & LuTurco, LLP, Garden City, New York.

Appeal from the United States District Court for the Southern District of New York

(Caproni, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on October 1, 2021, is AFFIRMED.

Defendant-Appellant Alseny Keita appeals from the sentence of the United States District

Court for the Southern District of New York (Caproni, J.). We assume the parties’ familiarity

with the underlying facts, the procedural history, and the issues presented for review.

On March 23, 2021, Keita pled guilty to one count of wire fraud, in violation of

and 2, one count of bank fraud, in violation of

and 2, and one

count of conspiracy to commit wire fraud and bank fraud, in violation of

. The

district court sentenced Keita to 18 months’ imprisonment, to be followed by a 5-year term of

supervised release, and imposed restitution in the amount of $305,385.57. Keita challenges the

procedural reasonableness of his sentence.

A district court commits a procedural error when it fails to calculate the Guidelines range

(unless omission of the calculation is justified), makes a mistake in its Guidelines calculation,

treats the Guidelines as mandatory, does not consider the factors in

(a), rests its

sentence on a clearly erroneous finding of fact, or “fails adequately to explain its chosen

sentence.” United States v. Cavera,

(2d Cir. 2008) (en banc). We review the

“district court’s applications of the Guidelines de novo, while factual determinations underlying

2 a district court’s Guidelines calculation are reviewed for clear error.” United States v. Cramer,

(2d Cir. 2015).

Keita makes two arguments to challenge the procedural reasonableness of his conviction,

but both are unavailing. First, Keita argues that the district court improperly calculated his loss

amount of $305,385.57 because that figure represents not just his deposits captured on

surveillance video, but the total value of all checks deposited in the bank accounts he accessed.

The district court concluded that the full amount of checks that flowed through those accounts

were both within the scope of Keita’s conspiratorial agreement and foreseeable to him. This was

a reasonable interpretation of the evidence, and the district court’s findings were sufficiently

particularized to attribute this loss amount to Keita. See United States v. Getto,

(2d Cir. 2013); JA-222-24. We therefore find no error, let alone clear error. Even if the loss

amount calculation were error, the district court stated that even a loss amount $100,000 less

would not change the sentence it ultimately imposed. Thus, we conclude that any error on the

loss amount calculation was harmless and does not warrant vacatur of Keita’s sentence. See

United States v. Jass,

(2d Cir. 2009).

Second, Keita argues that the district court failed to consider the need to avoid

unwarranted sentencing disparities when it imposed his sentence of 18 months’ incarceration.

The district court identified at least four differences between Keita and co-defendants Toure and

Dukuray for sentencing. These findings were not clearly erroneous. Nor was the district court’s

decision to impose the same sentence on Keita as it later imposed on Sylla, the alleged

“mastermind” of the conspiracy. Although Sylla was more culpable in the conspiracy, Sylla took

responsibility for his criminal conduct and cooperated with the government after he was arrested.

3 Keita, in contrast, fled the country and lied to authorities when he was finally arrested. These

facts provide a “reasonable explanation” for the sentences. See United States v. Ebbers,

(2d Cir. 2006).

We have considered the remainder of Keita’s arguments and find them to be without

merit. The judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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