Unpreserved § 2S1.1(a)(1) vs. (a)(2) Disputes Fail on Plain-Error Review When “Additional Involvement” Is Reasonably Debatable

I. Introduction

United States v. Idowu arises from an online “romance” fraud attributed to the “Yahoo Boys,” operating largely from Nigeria, which induced U.S. victims—often elderly—to send money under false pretenses. Because the fraudsters were overseas, the scheme depended on U.S.-based accounts to receive victim payments and move funds onward.

The government proved that Nelly Idowu opened and controlled multiple U.S. bank accounts, including accounts tied to a shell LLC and an alias, and that these accounts received hundreds of thousands of dollars from victims. A jury convicted her of conspiracy to commit money laundering and two counts of conducting monetary transactions with criminal proceeds, in violation of 18 U.S.C. §§ 1956(h) and 1957.

This appeal followed a prior remand for resentencing to correct a mathematical Guidelines error; on remand, the district court reimposed the same below-Guidelines 72-month sentence. The key issue in this second appeal was narrow but consequential: whether the district court should have computed Idowu’s base offense level under U.S.S.G. § 2S1.1(a)(1) (tied to the underlying offense, here wire fraud) or under § 2S1.1(a)(2) (a value-of-funds-based method typically associated with “third-party” money launderers).

II. Summary of the Opinion

The Tenth Circuit affirmed. Because Idowu did not object at either sentencing to using § 2S1.1(a)(1), review was for plain error. The panel held it “need not decide whether the district court erred,” because any error was not “plain”: existing Tenth Circuit authority did not resolve the precise question, the Guidelines’ text and commentary did not clearly foreclose § 2S1.1(a)(1) on this record, and the record left the “additional involvement” question in “reasonable dispute.”

III. Analysis

A. Precedents Cited

• United States v. Johnson, 120 F.3d 1107 (10th Cir. 1997)
  Cited for the elements of wire fraud: “(1) a scheme or artifice to defraud…; and (2) use of interstate wire communications to facilitate that scheme.” This mattered because § 2S1.1(a)(1) turns on whether the defendant “committed” or is “accountable for” the underlying offense (here, wire fraud). The panel used Johnson to frame how providing essential domestic infrastructure (accounts) could plausibly be conduct facilitating completion of the fraud itself, not merely laundering after the fact.
• United States v. Malone, 937 F.3d 1325 (10th Cir. 2019)
  Supplied the four-prong plain-error standard and the requirement that the defendant satisfy all prongs to obtain relief.
• United States v. Caraway, 534 F.3d 1290 (10th Cir. 2008)
  Reinforced that failing any one plain-error prong defeats the claim; the court disposed of the appeal at prong two (plainness).
• United States v. Thornburgh, 645 F.3d 1197 (10th Cir. 2011)
  Cited for the definition of “plain” error: “clear or obvious under current, well-settled law.”
• United States v. Jones, 74 F.4th 1065 (10th Cir. 2023)
  Provided two routes to plainness: (i) Supreme Court or controlling circuit authority resolving the issue, or (ii) an error that contravenes the plain language of a rule. The panel used Jones to reject both theories as applied to Idowu’s § 2S1.1(a)(1) challenge.
• United States v. Brown, 316 F.3d 1151 (10th Cir. 2003)
  Supported the proposition that even absent controlling case law, an error can be plain if the guideline’s “plain language” clearly settles the issue. The panel distinguished Brown by concluding § 2S1.1 and its commentary did not “clearly prescribe” the answer on these facts.
• United States v. Diaz-Menera, 60 F.4th 1289 (10th Cir. 2023)
  Idowu relied on Diaz-Menera as resolving the dispute, but the panel limited it to its issue: whether a drug conspiracy can be an “underlying offense” under § 2S1.1(a)(1). The court also rejected any implication that Diaz-Menera created a categorical requirement for express on-the-record findings when § 2S1.1(a)(1) is applied—explaining that express findings were made there because the defendant objected.
• United States v. Starks, 34 F.4th 1142 (10th Cir. 2022)
  Cited for the stringent plainness threshold: the error must be so clear it is not “subject to any reasonable dispute.” The panel invoked Starks to hold that the record made it at least plausible Idowu’s conduct constituted “additional involvement” in the underlying fraud.
• United States v. Finnesy, 953 F.3d 675 (10th Cir. 2020)
  Used to confirm that where the record does not make the alleged error “clear or obvious,” prong two fails.
• United States v. Abbas, 100 F.4th 267 (1st Cir.), cert. denied, 145 S. Ct. 319 (2024)
  Although not controlling, the panel cited Abbas to rebut Idowu’s emphasis that she never communicated with victims, noting authority rejecting the notion that direct communications are necessary where evidence shows the defendant set up and controlled recipient accounts.

B. Legal Reasoning

The opinion is structured around plain-error review. Idowu conceded she did not preserve the guideline-selection argument, so she had to show: (1) error; (2) that is plain; (3) affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings (per United States v. Malone). The panel resolved the case at prong two—plainness—without deciding prong one.

The core interpretive question concerned the Guidelines’ distinction—reflected in Amendment 634’s commentary—between “direct money launderers” and “third party money launderers.” Under § 2S1.1(a)(1), the court uses the offense level of the “underlying offense” if the defendant (A) “committed” it or (B) would be “accountable” for it under § 1B1.3(a)(1)(A) (relevant conduct: “committed, aided, abetted… or willfully caused”). Under § 2S1.1(a)(2), the base offense level is a formula tied to the value of laundered funds, typically for those who launder proceeds from offenses they did not commit and are not accountable for.

Idowu characterized herself as an “after-the-fact” launderer who never communicated with victims, arguing the commentary’s statement that laundering “after the commission of the underlying offense, without additional involvement,” does not establish commission or aiding/abetting (U.S.S.G. § 2S1.1, cmt. n.2(B)) compelled § 2S1.1(a)(2). The panel disagreed that the guideline “plainly” compelled that result:

• No controlling precedent squarely resolved these facts. Diaz-Menera did not answer whether opening/controlling recipient accounts constitutes “additional involvement” in wire fraud for § 2S1.1(a)(1) purposes, and it did not impose an express-findings requirement absent a defense objection.
• The guideline text/commentary did not categorically foreclose § 2S1.1(a)(1). The commentary’s “without additional involvement” carve-out did not specify whether providing essential U.S. accounts used to receive victim payments is “additional involvement.”
• The record supported a reasonable dispute about Idowu’s role. The PSR described the scheme as requiring U.S. accounts “to receive the funds” and “complete the fraud.” Given Idowu’s alleged opening and control of multiple accounts (including under an alias and shell LLC), the panel found it “at least plausible” her conduct furthered execution of the fraud, not merely subsequent laundering.

Because reasonable jurists could disagree on whether those facts placed her within § 2S1.1(a)(1)’s “committed/accountable” category, any possible error was not “clear or obvious,” defeating prong two under Starks and Finnesy.

C. Impact

Although labeled “not binding precedent,” the decision is practically important in three ways for litigants and sentencing courts within the Tenth Circuit:

• Preservation is decisive in § 2S1.1(a) disputes. The opinion shows that failing to object to application of § 2S1.1(a)(1) will often be fatal on appeal, because the “direct vs. third-party” line can be fact-dependent and thus rarely “plain.”
• “Additional involvement” may include enabling the fraud’s mechanics. The court’s reasoning suggests that supplying and controlling domestic recipient accounts—especially when the scheme depends on them to receive victim payments—can plausibly be treated as participation facilitating the underlying fraud, not merely post-offense laundering.
• No implied requirement of express findings absent an objection. By distinguishing Diaz-Menera, the opinion signals that when the defense does not contest § 2S1.1(a)(1) at sentencing, appellate courts are unlikely to treat the absence of explicit district-court findings as plain error.

IV. Complex Concepts Simplified

• Plain-error review: A demanding appellate standard applied when the defendant did not raise the issue in the trial court. The error must be obvious (not reasonably debatable), must matter to the outcome, and must undermine the fairness/integrity of proceedings.
• § 2S1.1(a)(1) vs. § 2S1.1(a)(2): (a)(1) ties the money-laundering base offense level to the “underlying offense” if the defendant committed it or is responsible for it as “relevant conduct.” (a)(2) is a fallback for laundering proceeds of crimes the defendant did not commit and is not accountable for, using a formula tied to laundered amount.
• Relevant conduct (§ 1B1.3(a)(1)(A)): A sentencing concept that attributes conduct to a defendant if she committed it or aided/abetted it (or otherwise willfully caused it), even if not separately convicted of that underlying crime.
• Guidelines commentary and “additional involvement”: Commentary note 2(B) indicates that merely laundering funds after the underlying crime, “without additional involvement,” does not itself prove the defendant committed or aided the underlying crime—leaving courts to decide what counts as “additional.”

V. Conclusion

United States v. Idowu affirms a money-laundering sentence by holding that, on plain-error review, a defendant cannot obtain relief from the district court’s choice of U.S.S.G. § 2S1.1(a)(1) over § 2S1.1(a)(2) when the record leaves a reasonable dispute about whether the defendant’s conduct constituted “additional involvement” in the underlying fraud. The decision underscores the strategic necessity of timely sentencing objections and suggests that providing and controlling recipient bank accounts essential to a fraud’s operation can plausibly place a defendant within § 2S1.1(a)(1)’s “direct” framework.