UNITED STATES of America, Appellee, v. Oluwole OJUDUN, Defendant, Anthony Davis, Defendant-Appellant, 630 F. App'x 25

SUMMARY ORDER Defendant-Appellant Anthony Davis was convicted pursuant to guilty pleas of bank fraud conspiracy in violation of 18 U.S.C. § 1349 and possession of stolen mail in violation of 18 U.S.C. § 1708. The district court sentenced Davis to the following terms of imprisonment on both counts: seven years and three years, respectively. On appeal, Davis argues that (1) the district court’s intended loss calculation was “speculative[ ],” and (2) the district court abused its discretion by imposing an above-Guidelines sentence. We assume the parties’ familiarity with the underlying facts and the procedural history of the case. I. The loss calculation We “review the district court’s

interpretation of the Guidelines de novo, and its findings of fact relevant to the Guidelines application for clear error.” United States v. Broxmeyer, 699 F.3d 265, 281 (2d Cir.2012). When calculating the proper offense level for a crime involving altered or counterfeit instruments under the Guidelines, the district “court heed only make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1, cmt. n. 3(c); accord United States v. Carboni, 204 F.3d 39, 46 (2d Cir.2000). The “loss” is the “greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. n. 3(a).

Davis does not dispute that his preguilty plea intended loss figure was “approximately” one million dollars. Nor does Davis dispute that his post-guilty plea intended loss figure was at least $4,460. What Davis contends is that the district court’s equating of “approximately one million” with one “million even” was speculative. Davis does not point to any evidence that the intended loss was less than one million dollars, however, and we decline to conclude that the district court failed to “make a reasonable estimate of the loss.” U.S.S.G. § 2B1.1, cmt. n. 3(c); see also United States v.

Norman, 776 F.3d 67, 79-80 (2d Cir.2015) (holding that the district court did not commit clear error by relying on the defendant’s representation of loss where there was nothing in the record to support a finding that the loss was in fact less than that amount). II. The upward variance “[Ajppellate courts may not presume that every variance from the advisory Guidelines is unreasonable.” Rita v. United States, 551 U.S. 338, 355, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We must “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v.

United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In this Circuit, we apply an abuse of discretion standard to substantive sentencing appeals. United States v. Rigas, 583 F.3d 108, 121 (2d Cir.2009). And we evaluate whether an upward variance “represents an abuse of discretion based on the reasons given by the district court when imposing the sentence.” United States v. Douglas, 713 F.3d 694, 700 (2d Cir.2013) (citing United States v. Sindima, 488 F.3d 81, 85-86 (2d Cir.2007)).

The district court calculated a Guidelines range of 70-87 months, and imposed a 33 month upward variance from the top of that Guidelines range. When the district court imposed the sentence in this case, she explained that the upward variance was due to Davis’s continuation of his scheme after his cohorts were indicted and even after he was arrested for his participation and had pled guilty. On this record there are “ ‘sufficiently compelling reasons to support the deviation.” United States v. Aldeen, 792 F.3d 247, 254 (2d Cir.2015) (quoting United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc)).

Defendant contends, briefly and for the first time on appeal, that the upward variance imposed by the district court resulted in his receiving an unjustifiably disparate sentence when compared to his codefen-dant Oluwole Ojudun. Ojudun, however, was not charged with or convicted of possession of stolen mail. Nor did Ojudun abuse a position of public trust or continue the scheme post-plea. The district court did not exceed the bounds of its discretion by imposing disparate sentences under these circumstances. We have considered all of Davis’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.