United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-1145 ___________________________ United States of America, lllllllllllllllllllllPlaintiff - Appellee, v. Anthony Tarpeh Kugmeh, lllllllllllllllllllllDefendant - Appellant. ____________ Appeal from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: April 19, 2019 Filed: August 8, 2019 ____________ Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges. ____________ COLLOTON, Circuit Judge. Anthony Kugmeh pleaded guilty to conspiracy to commit bank fraud, see 18 U.S.C. §§ 1344 and 1349, and aiding and abetting aggravated identity theft, see id. §§ 1028A and 2. The district court1 calculated an advisory sentencing guideline 1 The Honorable John R. Tunheim, Chief Judge, United States District Court for the District of Minnesota. range of 135 to 168 months’ imprisonment for the conspiracy offense. Kugmeh argues that the court made procedural errors in determining the range, but we reject his contentions and affirm the judgment. Kugmeh’s guilty plea stemmed from his involvement in a scheme to defraud financial institutions by cashing counterfeit checks drawn on accounts of businesses and individuals. He pleaded guilty in April 2015. In his plea agreement, Kugmeh stipulated to a base offense level and certain adjustments to the offense level on the conspiracy count. Among these stipulations were a sixteen-level increase for a loss amount of more than $1,000,000 but less than $2,500,000, and a two-level increase for an offense involving sophisticated means. See USSG § 2B1.1(b)(1)(I), (b)(10)(C) (2014). The government agreed to recommend a three-level reduction for acceptance of responsibility, see id. § 3E1.1, provided that certain conditions were met, including that Kugmeh “commit[] no further acts inconsistent with acceptance of responsibility.” In November 2015, the Sentencing Commission promulgated Amendment 792, which amended the definition of “intended loss” in the commentary to USSG § 2B1.1 and the “sophisticated means” guideline at USSG § 2B1.1(b)(10)(C). See USSG Supp. to App. C, Amend. 792 (2015). In his first sentencing memorandum, Kugmeh asserted that under the amended guidelines, he would receive a twelve-level increase for the loss amount (instead of the stipulated sixteen) and would not qualify for a sophisticated means enhancement. But he did not urge a different guideline calculation; rather, he asked the court “to consider the total effect of these amendments as reason for a variance under 18 U.S.C. § 3553(a).” Kugmeh then absconded from presentence release in April 2017 and failed to appear at a sentencing hearing in June 2017. Officers eventually apprehended him during a traffic stop in October 2017, although even then Kugmeh provided a false name, and police had to use a biometric system to ascertain his identity. This conduct -2- led the probation office to recommend a two-level increase under USSG § 3C1.1 for obstruction of justice and no reduction under USSG § 3E1.1 for acceptance of responsibility. At sentencing, Kugmeh conceded that the two-level increase for obstruction was appropriate, but he argued for a two-level reduction for acceptance of responsibility. He also maintained that Amendment 792 warranted different guideline adjustments than those to which ...
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