United States of America v. Olalekan Jacob Ponle

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2404
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
O LALEKAN J ACOB PONLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-00318 — Robert W. Gettleman, Judge.
____________________
A RGUED M ARCH 27, 2024 — DECIDED A UGUST 5, 2024
____________________
Before EASTERBROOK, J ACKSON -A KIWUMI , and LEE, Circuit
Judges.
LEE, Circuit Judge. Olalekan Jacob Ponle stole over $8 mil-
lion from seven businesses and tried to steal $51 million more
in a far-reaching scheme to fraudulently induce wire trans-
fers. He eventually pleaded guilty to one count of wire fraud
in violation of 18 U.S.C. § 1343. For fraud crimes, § 2B1.1 of
the United States Sentencing Guidelines directs a court to add
escalating enhancements to a defendant’s offense level

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2 No. 23-2404
depending on the amount of “loss.” U.S.S.G. § 2B1.1(b). The
greater the loss, the higher the enhancement. The question
here is whether “loss” in § 2B1.1(b) denotes only actual loss
or could also mean intended but unrealized loss. The district
court determined it was the latter and, taking the greater of
the two, applied a twenty-two point increase to Ponle’s of-
fense level, resulting in a custodial Guidelines range of 168 to
210 months. Ponle appeals, arguing that the district court
erred because “loss” means actual loss not intended loss. We
affirm.1
I. Background
In 2019, Ponle, along with several co-schemers, used
phishing emails and information purchased on the dark web
to gain access to individual corporate email accounts at dif-
ferent companies. They then used these email accounts to
send fake emails to other employees, instructing them to wire
funds to certain bank accounts ostensibly for corporate needs.
The employees complied, unaware that the bank accounts ac-
tually belonged to Ponle.
At times, the companies detected the fraudulent transfers
and were able to stop or reverse them. Sometimes, the receiv-
ing banks discovered the fraud and closed the accounts before
the transactions occurred. Despite this, Ponle successfully
stole $8,038,214.99 from seven companies. He also tried but
1 In his brief, Ponle also argued that the district court erred by apply-
ing a two-level enhancement for an offense involving ten or more victims
under U.S.S.G. § 2B1.1(b)(2)(A). Ponle’s counsel, however, abandoned this
position at oral argument, and we need not discuss it further. See United
States v. Bridges, 760 F.2d 151, 152 n.1 (7th Cir. 1985).

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No. 23-2404 3
failed to steal an additional $51,310,561.32 from the same
companies as well as five others.
The government indicted Ponle and charged him with
eight counts of wire fraud in violation of 18 U.S.C. § 1343 on
July 15, 2020. Ponle pleaded guilty to one count on April 6,
2023, and acknowledged that he owed over $8 million in res-
titution.
To aid the court in sentencing, the United States Probation
Office prepared a presentence investigation report (PSR). Rel-
evant here, the PSR determined that Ponle’s scheme caused
an actual loss of $8,038,214.99 and an intended loss of
$51,310,561.32 (that is, funds Ponle tried to steal but failed for
one reason or another). Then, relying on the Sentencing Com-
mission’s commentary to § 2B1.1(b), see U.S.S.G. § 2B1.1, cmt.
n.3(A) (noting that, subject to certain exclusions inapplicable
here, “loss is the greater of actual loss or intended loss”), the
PSR used the intended loss amount to add twenty-two levels
to Ponle’s base offense level. After applying additional adjust-
ments (not challenged here), the PSR calculated Ponle’s total
offense level to be thirty-six, which, combined with Ponle’s
criminal history of I, resulted in a Guidelines range of 188 to
235 months of imprisonment and one to three years of super-
vised release.
At the sentencing hearing, Ponle’s principal objection to
the proposed Guidelines calculation was its use of intended
loss to increase his offense level. According to Ponle, the court
should not rely upon the commentary to § 2B1.1(b)(1) because
the word “loss” in that section unambiguously means actual
loss. Doing so, in his view, would violate the Supreme Court’s
instructions in Kisor v. Wilke, 588 U.S. 558 (2019), which pro-
hibits courts from deferring to agency interpretations of

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4 No. 23-2404
unambiguous regulations. The government responded that
Kisor did not overrule Stinson v. United States, 508 U.S. 36
(1993), where the Supreme Court recognized the Sentencing
Commission’s commentary as an important tool for interpret-
ing the Guidelines.
After considering the arguments, the district court agreed
with the government. As a result, and after ruling on other
objections, the court found Ponle’s total offense level to be
thirty-five and his criminal history category to be I, which re-
sulted in a custodial Guidelines range of 168 to 210 months.
The court then considered the sentencing factors in 18 U.S.C.
§ 3553(a) and, finding significant mitigating factors, imposed
a sentence of 100 months’ imprisonment with no supervised
release.2
II. Analysis
When examining a district court’s sentencing decision, we
review “legal interpretations of the Sentencing Guidelines de
novo and factual findings as to loss amount for clear error.”
United States v. Griffin, 76 F.4th 724, 745 (7th Cir. 2023).
Section 2B1.1(b)(1) contains an escalating table of offense
level enhancements when the “loss” resulting from a fraud
crime exceeds $6,500. U.S.S.G. § 2B1.1(b)(1). Relevant here,
when the loss is more than $3.5 million but less than $9.5 mil-
lion, the table instructs the court to add eighteen to the de-
fendant’s base offense level. Id. § 2B1.1(b)(1)(J). When the loss
is greater than $25 million but less than $65 million, the court
2 The court did not order a term of supervised release because Ponle
was a noncitizen whose deportation was likely.

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No. 23-2404 5
is to add twenty-two to the base offense level. Id.
§ 2B1.1(b)(1)(L).
The word “loss” is not defined in § 2B1.1(b)(1) itself. Ap-
plication Note 3 in the commentary to § 2B1.1, however, ex-
plains that “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1 cmt. n.3(A). The note goes on to define “actual
loss” as “the reasonably foreseeable pecuniary harm that re-
sulted from the offense,” id. cmt. n.3(A)(i), and “intended
loss” as “the pecuniary harm that the defendant purposely
sought to inflict; and includes intended pecuniary harm that
would have been impossible or unlikely to occur.” Id. cmt.
n.3(A)(ii) (internal numbering omitted).
In Stinson, the Supreme Court considered the role of the
commentary to the Guidelines. In a nutshell, it found that the
commentary “is authoritative unless it violates the Constitu-
tion or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” 508 U.S. at 38. Along
the way, the Court remarked that the Guidelines “are the
equivalent of legislative rules adopted by federal agencies.”
Id. at 45. And, while it recognized that the “analogy is not pre-
cise,” the Court described the commentary as “akin to an
agency’s interpretation of its own legislative rules.” Id.
The Supreme Court’s use of this “analogy” has prompted
some to believe that the Court overruled Stinson when decid-
ing Kisor. In Kisor, the Court considered the validity of prior
cases that had mandated judicial deference to “agencies’ rea-
sonable readings of genuinely ambiguous regulations.” 588
U.S. at 563.3 And, although it did not outright abandon Auer
3 Those cases were Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410 (1945). And the Supreme Court

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6 No. 23-2404
deference, it used Kisor as an opportunity to “restate, and
somewhat expand on” the principles articulated in Auer and
its progeny. 588 U.S. at 574. In short, Kisor confirmed that a
court should only defer to an agency interpretation of its reg-
ulations if, after applying “all traditional methods of interpre-
tation,” the regulation in question is “genuinely susceptible to
multiple reasonable meanings and the agency’s interpretation
lines up with one of them.” Id. at 581.
Ponle’s argument then goes like this. In Stinson, the Su-
preme Court likened the Guidelines to agency regulations,
and the Commission’s commentary to an agency’s interpreta-
tion of its own regulations. Then, in Kisor, the Court held that
only when a regulation is genuinely ambiguous can a court
defer to an agency’s interpretation of it. In § 2B1.1(b), Ponle
asserts, the word “loss” is not ambiguous and has a clearly
ascertainable meaning. Thus, he reasons, the district court
erred by relying on Application Note 3 to § 2B1.1 in violation
of the Supreme Court’s holding in Kisor. This reasoning has
found traction in some circuits. See, e.g., United States v. Cas-
tillo, 69 F.4th 648, 651 (9th Cir. 2023); United States v. Dupree,
57 F.4th 1269, 1275 (11th Cir. 2023) (en banc); United States v.
Nasir, 982 F.3d 144, 158 (3d Cir. 2020), cert. granted, judgment
vacated on other grounds, 142 S. Ct. 56 (2021); United States v.
Riccardi, 989 F.3d 476, 485 (6th Cir. 2021). But not in others.
See, e.g., United States v. Vargas, 74 F.4th 673, 680–83 (5th Cir.
2023) (en banc); United States v. Maloid, 71 F.4th 795, 805–08
(10th Cir. 2023).
referred to this practice as “Auer deference,” Kisor, 588 U.S. at 563, which
(it should be noted) is different from Chevron deference. See Loper Bright
Enter. v. Raimondo, 144 S. Ct. 2244, 2306 (2024) (Kagan, J., dissenting) (not-
ing that the Court had declined to overrule Auer deference in Kisor).

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No. 23-2404 7
Until recently, we had declined to definitively resolve this
issue, but continued to rely on Stinson, utilizing the Commis-
sion’s commentary to interpret the Guidelines. See, e.g., United
States v. Lomax, 51 F.4th 222, 228–29 (7th Cir. 2022) (deferring
to U.S.S.G. § 4B1.2’s Application Note 1 to conclude that a
“crime of violence” includes inchoate offenses); United States
v. Smith, 989 F.3d 575, 584–85 (7th Cir. 2021) (same with re-
spect to the term “controlled substance offense”). In United
States v. White, however, we took the issue head on. 97 F.4th
532 (7th Cir. 2024).
After reviewing the reasoning of our sister circuits and our
own cases, we conclusively held that “Kisor did not purport
to modify Stinson.” Id. at 539. We based our determination on
a number of factors. For one, we observed that “Kisor’s effect
on Stinson is unclear” because the Supreme Court in Stinson
had cautioned that the analogy was not precise; the Sentenc-
ing Commission is not an executive agency but an independ-
ent commission within the judicial branch; and the Commis-
sion’s “statutory charge is unique in ways that affect the def-
erence calculus.” Id. at 538–39 (internal citations omitted).4
4 For example, Congress has designated the Sentencing Commission
as “an independent commission in the judicial branch of the United
States,” comprised of seven voting members (at least three of whom must
be federal judges), rather than an agency within the executive branch, 28
U.S.C. § 991(a), “making it unquestionably … a peculiar institution within
the framework of our Government.” United States v. Moses, 23 F.4th 347,
352 (4th Cir. 2022) (quoting United States v. Mistretta, 488 U.S. 361, 384
(1989). Congress also has expressly authorized the Commission to prom-
ulgate “general policy statements regarding application of the guide-
lines.” 28 U.S.C. § 994(a)(2). And, although § 994(x) and § 994(p) require
the Commission to submit only proposed Guideline amendments to the
public for notice and comment and to Congress for modification and dis-
approval, respectively, the Commission generally follows the same

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8 No. 23-2404
More importantly, we explained that “the Court said nothing
in Kisor to suggest it was altering Stinson,” mentioning it only
in a footnote about Seminole Rock deference (another name for
Auer deference). Id. at 539. And we took seriously, as we must,
the Supreme Court’s instruction that we “resist invitations to
find its decisions overruled by implication.” Id. (citing Mallory
v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023)).
The holding in White provides the answer here—Stinson
controls. But because we are dealing with § 2B1.1(b)(1), while
White addressed § 4B1.2 (defining the terms used in the career
offender provision), we believe some additional analysis is
warranted.
As noted, one of the distinctive differences between the
Guidelines commentary and an executive agency’s interpre-
tation of its legislative rules is that the Commission typically
publishes proposed amendments to the commentary in the
Federal Register for public notice and comment. See Moses, 23
F.4th at 353. The commentary to the Guidelines that defines
“loss” as the greater of the actual and intended loss under-
went this process.
Prior to 2001, the Guidelines offered separate provisions
for theft and fraud offenses, and only the fraud Guidelines
defined “loss” as the greater of the actual and intended loss.
See U.S.S.G. App. C, Vol. II, amend. 617 at 172, 176. When the
Commission decided to combine these sections in June 2001,
process for adopting and amending the commentary as well. See Moses, 23
F.4th at 353. Furthermore, § 1B1.7 (which did go through the public notice
and comment and Congressional approval process) expressly provides
that the commentary accompanying a particular Guideline section “may
interpret the guideline or explain how it is to be applied.” U.S.S.G. § 1B1.7.

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No. 23-2404 9
it published two proposed amendments to the commentary
in the Federal Register for public notice and comment. Federal
Register Notice of Proposed Amendments to the Sentencing
Guidelines and Request for Public Comment; Notice of Public
Hearing, 66 Fed. Reg. 7962, 7993, 7995 (Jan. 26, 2001). While
these proposals offered alternative definitions for “actual
loss” and “intended loss,” both contained the general rule
that “loss” meant “the greater of actual loss or intended loss.”
Id.
Multiple stakeholders commented on these proposals,
with some proposing alternative ways to calculate “loss,”
such as averaging the intended and actual amounts. U.S.
Sent’g Comm’n, Public Comment on Proposed Amendments
60 (Mar. 2001), https://www.ussc.gov/sites/default/files/pdf/a
mendment-process/public-comment/200103/200103_PCpt1.p
df. But the language the Commission eventually adopted
remained unchanged: “loss is the greater of the actual loss or
intended loss.” Federal Register Notice of Amendments to the
Sentencing Guidelines for United States Courts, 66 Fed. Reg.
30512, 30529 (June 6, 2001). The final proposed amendments
were submitted to Congress for review, and that version of
the Guidelines was adopted, effective November 1, 2001. Id.
at 30513.5
The fact that the advisory note at issue underwent the pub-
lic notice and comment process and Congressional review
distinguishes it from an executive agency’s internal interpre-
tation of its own regulations that animated the Supreme
5 The general rule was initially part of Advisory Note 2, but the Com-
mission moved it, unamended, in 2003 to its current position in Note 3.
U.S.S.G. App. C, Vol. II, amend. 581 at 13.

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10 No. 23-2404
Court’s concern in Kisor. See Kisor, 588 U.S. at 607–08 (Gor-
such, J., dissenting) (criticizing Auer deference because it al-
lows an agency to promulgate a binding interpretation with-
out affording the public a chance to weigh in).
Turning back to this case, it is undisputed that Ponle in-
tended to defraud his victims of $51,310,561.32. And, con-
sistent with Advisory Note 3 to § 2B1.1(b), the district court
correctly utilized “the greater of the actual loss or intended
loss” to calculate Ponle’s offense level as Stinson requires.
III. Conclusion
For these reasons, we AFFIRM the judgment of the district
court.

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