United States v. Segun Debowale , 498 F. App'x 447 ( 2012 )

Case: 11-20708 Document: 00512067749 Page: 1 Date Filed: 11/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2012
No. 11-20708
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SEGUN DEBOWALE, also known as Oladapo James Afolabi,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-714-1
Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Segun Debowale pleaded guilty to conspiring to commit wire fraud. He
seeks to appeal the sentence on the ground that it was based on an incorrect loss
calculation. In his plea agreement, Debowale validly waived his right to appeal
the sentence or the manner in which it was determined, save for two exceptions
not relevant here. On appeal, he argues that the waiver should not be enforced
because the Government breached the plea agreement.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-20708 Document: 00512067749 Page: 2 Date Filed: 11/29/2012
No. 11-20708
As part of the plea agreement, the Government agreed not to oppose
Debowale’s request for a reduction for acceptance of responsibility. At the same
time, the Government reserved its right to assert or dispute facts relevant to
sentencing. At sentencing, Debowale told the court he had accepted
responsibility but disavowed knowledge of wrong doing, telling to the court “I
thought I was doing business; I thought I was helping.” The court expressed
incredulity that Debowale did not know he was committing a crime, and it asked
the Government to explain “how the scheme essentially worked.” The
Government summarized the mechanics of the scheme and also noted that
Debowale had previously been convicted in federal court for participating in the
same type of scheme. When asked directly by the court whether it was possible
Debowale did not know that what he was doing was wrong, the Government
responded “I don’t believe so.” The court denied credit for acceptance of
responsibility based on Debowale’s assertion that he was unaware of wrong
doing.
By reciting facts relevant to sentencing at the request of the district court,
the Government did not breach its agreement not to oppose a request for a
sentence reduction based on acceptance of responsibility. See United States v.
Pizzolato, 655 F.3d 403, 410 (5th Cir. 2011). Because the appeal waiver was
valid, and because the Government seeks to enforce it, we decline to consider
Debowale’s challege to his sentence.
Debowale also contends that counsel was ineffective at sentencing. We
decline to consider this claim on direct appeal because the record has not been
sufficiently developed. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006).
The judgment of the district court is AFFIRMED.
2