United States v. Lassissi Afolabi , 455 F. App'x 184 ( 2011 )


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  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 10-3287
    ________________
    UNITED STATES OF AMERICA
    v.
    LASSISSI AFOLABI,
    a/k/a Bogard, a/k/a Fovi
    Lassissi Afolabi,
    Appellant
    ________________
    On Appeal from the United States District Court
    For the District of New Jersey
    (Crim. No. 2:07-cr-00785-002)
    District Judge: Honorable Jose L. Linares
    ________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    October 6, 2011
    BEFORE: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges
    (Opinion Filed: December 16, 2011)
    ________________
    OPINION OF THE COURT
    ________________
    FUENTES, Circuit Judge.
    Lassissi Afolabi appeals from the criminal judgment entered by the United States
    District Court for the District of New Jersey. He argues that the government breached its
    plea agreement with him and that the District Court improperly calculated his advisory
    Sentencing Guidelines offense level. For the reasons set forth below, we affirm.1
    I.
    Because we write for the parties, we discuss the facts only to the extent necessary
    for the resolution of the issues raised on appeal. From October 2002 through September
    2007, Afolabi conspired with his wife, Akouavi Afolabi, and others to commit forced
    labor of more than 20 girls, aged 10 to 19. They recruited the girls from impoverished
    villages in Togo and Ghana and brought them to the United States with fraudulently
    obtained visas. The girls were required to work in hair-braiding salons for up to 14 hours
    per day, six or seven days a week, and to relinquish all of their earnings. They were
    beaten and psychologically and sexually abused.
    Pursuant to a plea agreement, Afolabi pled guilty to one count of Conspiracy to
    Commit Forced Labor, Conspiracy to Commit Trafficking with Respect to Forced Labor,
    and Conspiracy to Commit Document Servitude, in violation of 
    18 U.S.C. § 371
    ; one
    count of aggravated sexual abuse, in violation of 
    18 U.S.C. § 1589
    ; and one count of
    Transportation of a Minor with Intent to Engage in Criminal Sexual Activity, in violation
    of 
    18 U.S.C. § 2423
    (b). The parties agreed that Afolabi’s total Sentencing Guidelines
    offense level was 32, after including a “downward adjustment of 2 levels for acceptance
    of responsibility . . . if Lassissi Afolabi’s acceptance of responsibility continues through
    the date of sentencing.” (SA22). The plea agreement further recognized that Afolabi’s
    1
    We have jurisdiction over Afolabi’s timely appeal pursuant to 
    18 U.S.C. § 3742
    (a) and
    
    28 U.S.C. § 1291
    . The District Court had subject matter jurisdiction pursuant to 
    18 U.S.C. § 3231
    .
    2
    sentence was within the sole discretion of the District Judge and that the government was
    not bound by any stipulation to which it received credible contrary evidence prior to
    sentencing.
    After signing the plea agreement and admitting to his culpable conduct, Afolabi
    testified as a defense witness at the trial of his wife and co-defendant, Akouavi Afolabi.
    On direct examination, Afolabi contradicted certain admissions in his plea colloquy,
    denying that his victims were forced to work or to turn over their tips. Although Afolabi
    recanted these statements on cross examination, the government took the position that
    Afolabi’s testimony demonstrated that his acceptance of responsibility had not continued
    through his sentencing date.
    At a sentencing hearing on July 12, 2010, the District Court noted that the parties’
    stipulated calculation of Afolabi’s Guidelines offense level “differ[ed] severely” from the
    probation department’s calculations in its presentence report, which had arrived at a total
    offense level of 46. (A32). The Court therefore asked each party to speak on the matter.
    The government supported the plea agreement’s calculation with the exception of its
    downward adjustment for Afolabi’s acceptance of responsibility. Afolabi agreed with the
    government except to the extent that the government had argued that he should no longer
    receive the benefit of his acceptance of responsibility. Ultimately, however, the Court
    concluded the parties’ calculation was “flawed.” (A48). By the Court’s calculation—
    which continued to give Afolabi the benefit of his acceptance of responsibility—
    Afolabi’s total offense level was 40. At a second hearing on July 22, 2010, the Court
    revised its calculation to 38 “in an exercise of caution” and in light of both parties’
    3
    arguments that a 2-level increase, applicable where a sexual abuse victim was in the
    “custody, care, or supervisory control of the defendant,” U.S.S.G. § 2A3.1(b)(3), should
    not apply unless the victim were a minor. (A23). Afolabi was sentenced within this
    Guidelines range to 292 months’ imprisonment.
    II.
    On appeal, Afolabi argues that the government breached its plea agreement with
    him by “rais[ing] issue with the [C]ourt about the calculation of the appropriate base level
    in the first of the sentencing hearings.” (Appellant’s Br. at 2). Because Afolabi did not
    raise this objection before the District Court, our review is for plain error. See Puckett v.
    United States, 
    129 S. Ct. 1423
    , 1429 (2009), abrogating United States v. Rivera, 
    357 F.3d 290
    , 293-94 (3d Cir. 2004). Under plain error review, a defendant may prevail only if
    (1) there was an error that was (2) clear and (3) affected his substantial rights. 
    Id.
     If
    these three requirements are met, the Court of Appeals has discretion to remedy the error
    if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
    
    Id.
     (internal quotations and alterations omitted).
    Upon review of the transcript, we conclude that there was no plain error. At the
    first sentencing hearing, the government argued that the Guidelines calculation stipulated
    in the plea agreement was accurate with the exception of the downward adjustment for
    acceptance of responsibility. The government was entitled to contest this adjustment
    because of Afolabi’s trial testimony and the terms of the plea agreement. In any event,
    the government’s position was not adopted by the District Court. Although the
    government also conceded, in response to the Court’s questioning, that alternative
    4
    calculations were also supportable under the Guidelines, the government maintained that
    the parties’ calculations in the plea agreement were most appropriate. After the
    government spoke, defense counsel represented that that “the defendant agrees with the
    [g]overnment’s calculation. . . . The only thing that we disagree on is whether or not there
    was obstruction or acceptance . . . .” (A45).
    III.
    Afolabi also argues that the District Court made a procedural error in calculating
    his advisory Guidelines offense level. We review the District Court’s calculation of the
    Guidelines range for abuse of discretion. United States v. Fumo, --- F.3d ----, 
    2011 WL 3672774
    , at *16 (3d Cir. Aug. 23, 2011), as amended (Sept. 15, 2011) (citing United
    States v. Tomko, 
    562 F.3d 558
    , 567 (3d Cir. 2009) (en banc)). “For example, an abuse of
    discretion has occurred if a district court based its decision on a clearly erroneous factual
    conclusion or an erroneous legal conclusion.” 
    Id.
     (quoting Tomko, 
    562 F.3d at 567-68
    ).
    At the July 22, 2010 hearing, the Court explained how it had reached an offense
    level of 38. The Court applied U.S.S.G. § 2H4.1, which carries a base offense level of
    22, to the group of Afolabi’s forced labor and sexual abuse convictions. Under
    § 2H4.1(b)(4), which deals with situations where there was another felony committed
    during the commission or in connection with the forced labor, the Court compared the
    calculation for forced labor with the calculation for criminal sexual abuse. The Court
    determined that Afolabi’s base level for sexual abuse was 30 pursuant U.S.S.G. § 2A3.1.
    To this base, the Court added 4 levels because the conduct involved forced rape, arriving
    at an offense level of 34. See U.S.S.G. § 2A3.1(b)(1). Therefore, the Court added
    5
    2 levels to arrive at an offense level of 36 for the group under § 2H4.1(b)(4)(B). The
    Court next added two 2-level enhancements because of the large number of vulnerable
    victims involved, arriving at a total offense level of 40. U.S.S.G. § 3A1.1(b)(1)-(2).
    Considering the grouping of the counts and the much lower Guidelines level applicable to
    Afolabi’s conviction for Transportation of a Minor with Intent to Engage in Criminal
    Sexual Activity, the Court did not include a multiple-count adjustment. Finally, the
    Court gave Afolabi a 2-level decrease for acceptance of responsibility, over the
    government’s objection, arriving at a final calculation of 38.
    Afolabi’s argument that the District Court applied the wrong Guidelines section is
    belied by the record. Afolabi confuses the District Court’s calculations under
    § 2H4.1(b)(4)(B), related to his sexual abuse of the girls he had forced to work, with a
    calculation of his Guidelines offense level for conviction for Transportation of a Minor
    with Intent to Engage in Criminal Sexual Activity. Therefore, Afolabi fails to identify
    any procedural error in the District Court’s calculation of his advisory Guidelines offense
    range.
    IV.
    For the foregoing reasons, we affirm Afolabi’s sentence.
    6
    

Document Info

Docket Number: 10-3287

Citation Numbers: 455 F. App'x 184

Judges: McKee, Fuentes, Greenberg

Filed Date: 12/16/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024