United States v. Agyepong , 388 F. App'x 343 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4643
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL K. AGYEPONG,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00178-JAB-2)
Submitted: June 30, 2010 Decided: July 21, 2010
Before SHEDD and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Robert Michael Hamilton, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel K. Agyepong pled guilty to conspiracy to use
counterfeit and unauthorized access devices (credit cards and
credit card account numbers), in violation of 18 U.S.C.
§ 1029(a)(1), (a)(2), (b)(2) (2006) (Count One), and aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (2006)
(Count Eleven). The district court initially sentenced Agyepong
to fifteen months’ imprisonment on Count One and a consecutive
twenty-four months’ imprisonment on Count Two. Agyepong
appealed his sentence, challenging the district court’s loss and
criminal history calculations. We affirmed the district court’s
loss calculation, but because Agyepong was not on probation when
he committed the instant offenses, we found that the district
court erred by assessing two criminal history points under U.S.
Sentencing Guidelines Manual § 4A1.1(d) (2007). Without these
criminal history points, Agyepong’s criminal history category
was reduced from category III to category II, and his guidelines
range on Count One, based on offense level twelve, became twelve
to eighteen months, rather than the higher range originally
calculated by the district court. ∗ See USSG ch. 5, pt. A
(sentencing table). Accordingly, we vacated Agyepong’s sentence
∗
Agyepong’s sentence on Count Eleven, aggravated identity
theft, was a statutory mandatory consecutive twenty-four months’
imprisonment. 18 U.S.C. § 1028A(a)(1), (b)(2).
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and remanded for resentencing under the correctly calculated
guidelines range. United States v. Agyepong, 312 F. App’x 566
(4th Cir. 2009) (No. 08-4053).
At resentencing, the district court imposed a twelve-
month prison term on Count One, the bottom of the guidelines
range, and a consecutive twenty-four months on Count Eleven, for
a total sentence of thirty-six months’ imprisonment. Agyepong
timely appealed. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), finding no
meritorious grounds for appeal, but questioning whether the
district court erred by denying Agyepong’s motions for
substitution of counsel and to withdraw his guilty plea to Count
Eleven, and in calculating the loss attributable to Agyepong and
his criminal history score. Counsel also challenges the
reasonableness of Agyepong’s sentence. Agyepong filed a pro se
supplemental brief reiterating counsel’s challenge to the
district court’s denial of his motion to withdraw the guilty
plea. For the reasons that follow, we affirm.
Agyepong first contends that the district court erred
by denying his motion for substitution of counsel, filed shortly
before his resentencing hearing. This court reviews a district
court’s denial of a motion for substitution of counsel for abuse
of discretion. United States v. Corporan-Cuevas, 35 F.3d 953,
956 (4th Cir. 1994). In evaluating whether the trial court
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abused its discretion, we consider: (1) the timeliness of the
motion; (2) the adequacy of the inquiry into the defendant’s
complaint about his attorney; and (3) whether the
attorney/client conflict was so great that it resulted in total
lack of communication preventing an adequate defense. United
States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004). These
factors are balanced against the district court’s “interest in
the orderly administration of justice.” Id. at 157. We have
reviewed Agyepong’s claim with these standards in mind and find
no abuse of discretion in the district court’s denial of
Agyepong’s motion.
Next, Agyepong asserts that the district court erred
by denying his motion to withdraw his guilty plea to Count
Eleven, aggravated identity theft. We review the district
court’s denial of a motion to withdraw a guilty plea for abuse
of discretion. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). “[A] defendant does not have an absolute right
to withdraw a guilty plea, even before sentencing.” United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Instead, he
must show a “fair and just reason” supports his request to
withdraw his plea. Id. Factors considered in determining
whether a defendant has shown a fair and just reason for
withdrawing his guilty plea include:
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(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether the defendant has
had close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
Id. Agyepong’s challenge to his guilty plea focuses on Factor
2, legal innocence, because he contends that he is actually
innocent of aggravated identity theft in light of Flores-
Figueroa v. United States, 129 S. Ct. 1886 (2009), a decision
that issued a month before his resentencing.
Under 18 U.S.C. § 1028A(a)(1), a person convicted of
specified predicate offenses (including 18 U.S.C. § 1029(a))
faces a mandatory two-year consecutive prison term if in the
course of committing the other offenses he “knowingly . . .
possesses [] or uses, without legal authority, a means of
identification of another person.” 18 U.S.C. § 1028A(a)(1). In
Flores-Figueroa, the Supreme Court held that to obtain a
conviction under
§ 1028A(a)(1), “the Government [must] show that the defendant
knew that the [unlawfully used] means of identification . . .
belonged to another person.” 129 S. Ct. at 1894. At the time
of Agyepong’s guilty plea, the established authority in this
circuit was United States v. Montejo, 442 F.3d 213 (4th Cir.
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2006), which held that the Government was not required to prove
that a defendant actually knew that the means of identification
belonged to another person when he used it without
authorization. Id. at 217. The Supreme Court abrogated Montejo
in Flores-Figueroa by holding that § 1028A(a)(1) requires the
Government to show that the defendant knew that the means of
identification he unlawfully used actually belonged to another
person, as opposed to being merely counterfeit. Flores-
Figueroa, 129 S. Ct. at 1894.
Agyepong admitted to using a device provided by his
co-defendant to skim or steal credit card numbers. His co-
defendant then re-encoded these stolen numbers onto credit
cards. At the time of his arrest, Agyepong was with his co-
defendant and had eight re-encoded credit cards on his person.
We conclude that this evidence established that Agyepong knew
that the credit card numbers he used belonged to other
individuals as opposed to being merely counterfeit.
Accordingly, we find that Agyepong has not credibly asserted his
legal innocence and that the district court did not abuse its
discretion by denying Agyepong’s motion to withdraw his guilty
plea.
Agyepong also seeks to challenge the amount of loss
attributed to him for sentencing purposes and the assignment of
two criminal history points for two convictions for driving
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while impaired. Generally, “‘the doctrine [of the law of the
case] posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent
stages in the same case.’” United States v. Aramony, 166 F.3d
655, 661 (4th Cir. 1999) (quoting Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 815-16 (1988)). The law of the
case must be applied:
in all subsequent proceedings in the same case in the
trial court or on a later appeal . . . unless: (1) a
subsequent trial produces substantially different
evidence, (2) controlling authority has since made a
contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would
work manifest injustice.
Aramony, 166 F.3d at 661 (quoting Sejman v. Warner-Lambert Co.,
845 F.2d 66, 69 (4th Cir. 1988)); see Doe v. Chao, 511 F.3d 461,
464-66 (4th Cir. 2007) (discussing mandate rule and its
exceptions).
We affirmed the district court’s loss calculations in
Agyepong’s first appeal. Moreover, Agyepong could have
challenged the criminal history points assigned to him for his
driving while impaired convictions, but he did not do so. See
Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510
F.3d 474, 481 (4th Cir. 2007) (“[A] remand proceeding is not the
occasion for raising new arguments or legal theories.”); United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that
mandate rule “forecloses relitigation of issues expressly or
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impliedly decided by the appellate court,” as well as “issues
decided by the district court but foregone on appeal . . .”).
Because neither of these issues falls within any of the
exceptions to the law-of-the-case doctrine, we conclude that
Agyepong is foreclosed from raising these claims in this appeal.
Finally, turning to Agyepong’s sentence, we review it
under a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). In conducting this
review, we “must first ensure that the district court committed
no significant procedural error, such as failing to calculate
(or improperly calculating) the [g]uidelines range, treating the
[g]uidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [(2006)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. at 51. “When rendering a sentence, the
district court must make an individualized assessment based on
the facts presented,” applying the “relevant § 3553(a) factors
to the specific circumstances of the case before it.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks and emphasis omitted). The court must also
“state in open court the particular reasons supporting its
chosen sentence” and “set forth enough to satisfy” this court
that it has “considered the parties’ arguments and has a
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reasoned basis for exercising [its] own legal decisionmaking
authority.” Id. (internal quotation marks omitted).
Once we have determined that the sentence is free of
procedural error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Gall, 552 U.S. at 51. If the
sentence is within the appropriate guidelines range, this court
applies a presumption on appeal that the sentence is reasonable.
See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
In this case, the district court correctly calculated
the advisory guidelines range. Although the court committed
procedural error in failing to provide an individualized
assessment of Agyepong’s case, we conclude that the court’s
omission did not affect Agyepong’s substantial rights. See
United States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).
Furthermore, neither counsel nor Agyepong has articulated any
factors to overcome the appellate presumption of reasonableness
afforded Agyepong’s within-guidelines sentence. Accordingly, we
conclude that the district court did not abuse its discretion in
sentencing Agyepong.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Agyepong, in writing, of the right
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to petition the Supreme Court of the United States for further
review. If Agyepong requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Agyepong.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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