Case: 20-50630 Document: 00515997691 Page: 1 Date Filed: 08/27/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 27, 2021 No. 20-50630 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Prince Charles Nana Yaw Owusu Boateng, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas No. 5:17-CR-880 Before Owen, Chief Judge, Smith and Graves, Circuit Judges. Per Curiam:* Defendant-Appellant Prince Charles Nana Yaw Owusu Boateng appeals the district court’s modified sentence imposing $11,032.03 in restitution for his conviction pursuant to a plea agreement on one count of access device fraud. The primary issues are whether the district court exceeded its statutory authority in setting restitution above $5,191.33, the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-50630 Document: 00515997691 Page: 2 Date Filed: 08/27/2021 No. 20-50630 amount to which Owusu stipulated in his plea agreement, and whether the district court exceeded its authority under rule 35(a) of the Federal Rules of Criminal Procedure in increasing an initial restitution order of $9,950 to $11,032.03. We affirm. I. In November 2017, a federal grand jury indicted Owusu on two counts of access device fraud and two counts of aggravated identity theft, charging that he used two fraudulently obtained Capital One credit cards for around forty unauthorized purchases over the course of a year. Owusu pled guilty to Count Two—access device fraud in violation of 18 U.S.C. § 1029(a)(5)—for his use of a credit card ending in 5001 between September 30, 2015, and September 30, 2016. Owusu admitted that he “used this card to effect transactions which had an aggr[eg]ate value [of] over $1000” during that one-year period. He stipulated that Capital One “suffered approximately [$]5191.33 in losses for [Owusu’s use of] the credit card,” and that restitution was mandatory under 18 U.S.C. §§ 3663 and 3664. Owusu agreed to pay restitution for “the charged crime and relevant conduct.” Finally, Owusu agreed to a standard waiver of his right to appeal his sentence, including “any . . . monetary penalty or obligation.” In the presentence report (“PSR”), a probation officer concluded that Owusu’s relevant offense conduct caused $11,032.03 in losses to Capital One. The PSR noted the stipulated $5,191.33 in losses attributable to the 5001 card, but the PSR also listed a loss amount of $5,840.70 for Boateng’s unauthorized use of another credit card during the same one-year period, which was charged in Count 1. The PSR concluded that restitution in the amount of $11,032.03 was required under 18 U.S.C. § 3663A, the Mandatory Victims Restitution Act. Owusu objected to the PSR and argued that he was responsible for less than $10,000 in restitution but he did not advocate a 2 Case: 20-50630 Document: 00515997691 Page: 3 Date Filed: 08/27/2021 No. 20-50630 specific amount. At the sentencing hearing, Owusu developed …
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