United States v. Ogagba ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-20670
and No. 95-20141
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY OGAGBA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
H-93-CR-307-3
_________________________________________________________________
June 12, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Rodney Ogagba pleaded guilty to mail fraud and
money laundering and was sentenced in February 1995 to concurrent
37-month terms of imprisonment and supervised release and
restitution in the amount of $102,607.63. As part of the
restitution order, the district court ordered that money seized
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
upon Ogagba’s arrest, including $5,120 in currency and $1,800 in
money orders, would be paid one-half to his family and one-half to
the restitution obligation. On appeal, Ogagba challenges the
voluntariness of his guilty plea based on the Rule 11 colloquy, the
district court’s sentencing decision, and whether the court erred
by ordering a portion of Ogagba’s seized property be applied to his
restitution obligation. Finding no error, we affirm.1
1. Ogagba first complains of the district court’s
failure explicitly to admonish him of the possibility that it could
impose a restitution order. Under the circumstances, this error
did not affect his substantial rights. United States v. Johnson,
1 F.3d 296, 298 (5th Cir. 1993) (en banc). Under Johnson, this
court may review any written plea agreement, the transcript of the
sentencing hearing, and the sentence actually imposed. To
determine whether the error effected substantial rights, this court
focuses “on whether the defendant’s knowledge and comprehension of
the full and correct information would have been likely to affect
his willingness to plead guilty.” Id. at 302.
At the guilty plea hearing, the district court failed to
mention restitution explicitly but informed Ogagba that he was
subject to paying fines in excess of $1 million. The plea
agreement, however, referred to any fine or restitution as being
due and payable immediately. The plea agreement also provided that
1
Because of the overlapping nature of Ogagba’s two appeals, the court
has consolidated them sua sponte.
2
Ogagba would not attempt to avoid paying a fine or restitution by
filing a bankruptcy case. Ogagba declared in open court that he
had read the agreement and discussed it with his attorney, and he
executed an acknowledgment confirming his understanding of his
rights and the terms of the plea agreement. He was thus
sufficiently informed of the possibility of restitution.
Other alleged deficiencies in the court’s Rule 11
colloquy with Ogagba are picayune, read in light of the record, and
similarly did not affect Ogagba’s substantial rights. His plea was
not involuntary.
2. Ogagba has raised four sentencing issues on direct
appeal: the district court failed to make factual findings at
sentencing and relied on false and uncorroborated information to
enhance his sentence; the court used a prior “uncounselled”
conviction to enhance his base level one point; the court failed to
resolve a dispute as to the amount of restitution and ordered
excessive restitution; and the district court failed to consider
several mitigating circumstances and otherwise erred in refusing to
make a downward departure. Ogagba explicitly waived his right to
appeal his sentence, as part of his plea agreement with the
government. At the hearing on guilty plea, he confirmed for the
3
court his understanding of his waiver of the right to appeal his
sentence. The waiver is enforceable.2
3. Ogagba challenges the seizure of his cash and money
orders on various grounds. In case number 95-20141, to the extent
Ogagba contends that the government violated the plea agreement by
illegally seizing his cash and money orders and denying him access
to the funds, his argument is unavailing. The plea agreement,
which he signed before filing a motion for the return of the seized
funds, does not address the funds.
To the extent Ogagba argues, in case number 95-20670,
that the arrest warrant did not encompass seizure of the cash and
money orders and that the seizure was otherwise illegal or
unconstitutional, his arguments also fail. We are constrained by
a narrow scope of appellate review, because Ogagba’s notice of
appeal was not filed until June 14, 1995, 89 days after the
district court’s denial of his Rule 41(e) motion for return of
property, and it was therefore effective only to appeal the denial
of Ogagba’s Rule 60(b) motion for reconsideration. Appeal of a
Rule 60(b) order is not to be used as the vehicle for an out-of-
time appeal. Instead, the grant or denial of a Rule 60(b) motion
is reviewed in this court for abuse of discretion. Bertrand v.
2
For the first time in his reply brief in case number 20141, Ogagba
challenges the effectiveness of the public defender who represented him at trial.
This court will not review issues which are initially raised in a reply brief.
United States v. Prince, 868 F.2d 1379, 1386 (5th Cir), cert. denied, 493 U.S.
932 (1989).
4
Sullivan, 976 F.2d 977, 979 (5th Cir. 1992). Ogagba’s challenges
to the district court’s “Solomon-like” decision to apply half of
the seized funds toward the restitution order reflects no such
abuse. In United States v. Mills, 991 F.2d 609, 612 (9th Cir.
1993), the Ninth Circuit held that a valid restitution order gives
the government a sufficient cognizable claim of ownership to defeat
a Rule 41(e) motion for return of property, if that property is
needed to satisfy the terms of the restitution order. Here, the
restitution order was valid. Further, Ogagba has effectively
waived review of the district court’s order partially denying him
relief under Rule 41(e) because he did not offer a copy of the
warrant authorizing his arrest and seizure and cannot demonstrate
that the seizure of the funds exceeded the scope of the search
incident to arrest. In sum, even if Rule 60(b) authorized the
relief Ogagba seeks, the court’s decision to turn over part of the
seized funds to satisfy Ogagba’s restitution order hardly
constituted an abuse of his broad discretion.
For these reasons, the judgment and sentence of the
district court are AFFIRMED.
5