UNITED STATES of America, Appellee, v. Edmund AGBODJAN, Defendant-Appellant, 594 F. App'x 51

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Appellant Edmund Agbodjan (“Agbod-jan”), appeals a 96-month sentence imposed by the district court following a plea of guilty to access device fraud and aggravated identity theft. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issue on appeal. We review de novo a district court’s legal application of the sentencing Guidelines. United States v.

Cossey, 632 F.3d 82, 86 (2d Cir.2011). “A district court commits procedural error where it fails to calculate the Guidelines range ..., makes a mistake in its Guidelines calculation or treats the Guidelines as mandatory.” United States v. Desnoyers, 708 F.3d 378, 385 (2d Cir.2013) (alteration in original) (quoting United States v. Cavera, 550 F.3d 180, 190 (2d Cir.2008) (en banc)).

Agbod-jan argues on appeal that his possession of 710 access devices that he transported into Canada from the United States should be deemed a “foreign crime” and thus the district court should not have figured the conduct into his offense level calculation. We disagree. For the reasons set forth by the district court, we agree that Agbodjan’s possession of the access devices in the United States prior to entering Canada precludes a finding that the possession was a “foreign crime.” Possession of such devices is a crime in the United States. See 18 U.S.C. § 1029(a)(3).

The district court properly, and within its discretion, considered the possession relevant conduct in determining the offense level calculation. See U.S.S.G. § lB1.3(a)(2) (relevant conduct includes acts that are part of the “same course of conduct or common scheme or plan as the offense of conviction”). Accordingly, we AFFIRM the judgment of the district court.