United States of America v. MICHAEL KYEREME, AKA Michael Appiahkyeremeh, AKA Appakyeremeh MICHAEL KYEREME

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1354
UNITED STATES OF AMERICA
v.
MICHAEL KYEREME, AKA Michael Appiahkyeremeh, AKA Appakyeremeh
MICHAEL KYEREME,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 2-08-cr-00469-001)
District Judge: Honorable Katharine S. Hayden
Submitted Under Third Circuit LAR 34.1(a)
March 11, 2010
Before: AMBRO, SMITH and ALDISERT, Circuit Judges
(Opinion filed: March 23, 2010)
OPINION
AMBRO, Circuit Judge
Michael Kyereme pled guilty to mail fraud and tax evasion in July 2008. He now
challenges the District Court’s sentence of 59 months’ imprisonment, arguing that the

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
pursuant to 18 U.S.C. § 3742.
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District Court erred in applying a two-level upward adjustment under § 3B1.3 of the
Sentencing Guidelines. We affirm.1
I.
Kyereme was an independent contractor hired to provide information technology
(“IT”) support to the City of Newark, New Jersey. As an independent contractor,
Kyereme assisted Newark employees with computer-related problems. When Kyereme
could not resolve a computer problem, he was authorized to communicate with Cisco
Systems, Inc. (“Cisco”) for additional technical assistance and, if necessary, to request
replacement parts for the City’s computers.
From 2002 through 2007, Kyereme falsely reported to Cisco that large numbers of
computer parts were malfunctioning and required replacement. When Cisco sent
replacement parts, however, Kyereme failed to return many of the allegedly inoperable
parts. When he did return parts to Cisco, they were different Cisco parts or parts from
other computer companies, all of which were of lesser value than the replacement parts.
Kyereme sold the fraudulently obtained Cisco parts to computer resellers outside of New
Jersey. His fraudulent scheme resulted in losses to Cisco of more than $4,000,000.
In July 2008, Kyereme pled guilty to one count of mail fraud (in violation of 18
U.S.C. § 1341) and one count of tax evasion (in violation of 26 U.S.C. § 7201). The
District Court determined that Kyereme’s offense level was 25, which included a two-

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The District Court determined that the two-level upward adjustment was also2
warranted because Kyereme “abused a position of public or private trust.” U.S.S.G.
§ 3B1.3. Because we agree that he used a special skill to facilitate significantly the
commission and/or concealment of his crimes, we need not address this alternative basis
for the § 3B1.3 adjustment.
The District Court also denied Kyereme’s request that the mail fraud and tax
evasion counts be grouped pursuant to U.S.S.G. § 3D1.2(c). He does not challenge that
ruling on appeal.
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level upward adjustment pursuant to U.S.S.G. § 3B1.3 because Kyereme “used a special
skill[] in a manner that significantly facilitated the commission or concealment of the
offense[.]” With a criminal history of category I, his Guidelines range was 57 to 712
months’ imprisonment. The Court sentenced Kyereme to 59 months’ imprisonment, and
he timely appealed.
II.
Although the Sentencing Guidelines are now advisory, district courts must still
correctly calculate the Guidelines range at the first step of our Court’s post-Booker
sentencing procedure. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
“[A] sentencing court is required to make two findings before imposing an upward
adjustment for use of a special skill [under U.S.S.G. § 3B1.3]: ‘(1) the defendant
possesses a special skill; and (2) . . . used it to significantly facilitate the commission or
concealment of the offense.’” United States v. Bond, 581 F.3d 128, 140 (3d Cir. 2009)
(quoting United States v. Batista De La Cruz, 460 F.3d 466, 468 (3d Cir. 2006)) (second
alteration in original). We review a district court’s interpretation of the Guidelines de
novo, including whether a defendant possesses a “special skill” within the meaning of

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§ 3B1.3. See United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998). We review a
district court’s finding that a defendant used a special skill “in a manner that significantly
facilitated the commission or concealment of the offense” for clear error. See Bond, 581
F.3d at 141; Batista De La Cruz, 460 F.3d at 468.
III.
First, we agree that Kyereme has a “special skill” within the meaning of § 3B1.3.
See U.S.S.G. § 3B1.3 cmt. n.1 (a “special skill” is one “not possessed by members of the
general public and usually requir[es] substantial education, training or licensing”).
Kyereme holds an undergraduate degree in information systems, a masters of science
degree, and an MBA. He has completed numerous computer and network training
courses, and holds several professional licenses, including certifications as a Cisco
Network Associate and a Microsoft Systems Engineer. Finally, Kyereme has been
employed in the IT field since 1991, including as a computer engineer, project manager,
IT manager, senior engineer, network engineer, and implementation engineer. See
Urban, 140 F.3d at 236 (section 3B1.3 is “applicable to a person who has developed a
special skill through . . . his or her work experience”). Thus, contrary to Kyereme’s
suggestion, his knowledge of computers and systems management cannot be equated with
that of a typical computer user. Cf. United States v. Lee, 296 F.3d 792, 794–95, 799 (9th
Cir. 2002) (defendant who created an internet website to obtain registration fees for a
phony event did not possess a “special skill,” where the defendant simply copied and
pasted “scripts” from a legitimate website to create the phony website).

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Kyereme’s central complaint is that he did not “use[]” a special skill “in a manner
that significantly facilitated the commission or concealment of the offense.” U.S.S.G.
§ 3B1.3. In particular, he notes that (1) he did not identify himself as a Certified Cisco
Network Associate when he requested replacement computer parts (thus, Cisco
purportedly did not rely on his certification in approving the shipments of replacement
parts); and (2) he typically used email, “the most rudimentary computer skill,” to request
replacement parts from Cisco. Accordingly, Kyereme contends that any City of Newark
employee could have committed a similar fraudulent scheme, regardless of his or her
technical knowledge of Cisco’s products.
We disagree. As the District Court found, Kyereme’s technical knowledge of
computers and Cisco products significantly facilitated his crimes by: (1) making his
requests for replacement parts credible (e.g., by using technical language to describe
fabricated problems with computer parts); and (2) allowing him to identify the types of
parts that “might routinely break down” and to “group parts that are breaking down,” thus
avoiding suspicion by Cisco. The fact that Kyereme communicated with Cisco by email,
and that he did not identify himself as a Certified Cisco Network Associate when
requesting replacement parts, even cumulatively does not render the Court’s findings
clearly erroneous. As Cisco’s representative testified at sentencing, to become certified
as a Cisco Network Associate, an individual must pass examinations to “demonstrate a
level of technical proficiency with [Cisco] products,” including their configuration and
design. And, as the Court explained, Kyereme’s familiarity with and technical

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For example, in one email request to Cisco, Kyereme wrote: “Problem Details:3
7600-SIP-600 not responding/dead. Has been deactivated/reactivated and even reseated.
6513 chasi has also been rebooted still no good need RMA.” As a Cisco representative
testified at sentencing, she understood this message to indicate that Kyereme had already
taken steps to troubleshoot the problem (to no avail, of course, thus necessitating a
replacement part).
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knowledge of Cisco products “permitted him to talk the talk and be afforded the
credibility he was afforded by Cisco personnel,” thereby facilitating the commission and
concealment of his fraud.3
For the foregoing reasons, we affirm Kyereme’s sentence.

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