United States v. Akinosho , 285 F. App'x 128 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 11, 2008
No. 07-20442
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OLUYOMI TEMITOPE AKINOSHO, also known as Louis Malcolm Clark
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-409-1
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Oluyomi Temitope Akinosho pled guilty to a three-count indictment
charging him with making a false statement in a passport application (Count 1),
making a false claim of United States citizenship (Count 2), and fraud in
connection with identification documents (Count 3). See 18 U.S.C. §§ 911,
1029(a)(3) & 1542. Akinosho appeals the sentences imposed following his guilty
plea convictions. He argues that the district court erred in its application of
U.S.S.G. §§ 3C1.1, 3B1.1, and 2B1.1 and that the sentences imposed for Counts
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-20442
1 and 2 of his indictment represented upward departures from the Guidelines
and were unreasonable non-guidelines sentences.
We review the procedural soundness and substantive reasonableness of
Akinosho’s sentences under the abuse-of-discretion standard of review. See Gall
v. United States, 128 S. Ct. 586, 597 (2007). We review Akinosho’s challenge to
the sentencing enhancements under the Guidelines for clear error. See United
States v. De Jesus-Ojeda, 515 F.3d 434, 442 (5th Cir. 2008). The presentence
report (PSR) is considered reliable and may be considered as evidence by the
court when making sentencing determinations. See United States v. Vital, 68
F.3d 114, 120 (5th Cir. 1995). “The defendant bears the burden of demonstrating
that information the district court relied on in sentencing is ‘materially untrue.’”
United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
Section 3C1.1 provides for a two-level increase to an offense level if the
defendant obstructed or impeded the administration of justice. Akinosho argues
that application of the Section 3C1.1 enhancement in his case was improper in
connection with the guidelines calculations for Counts 1, 2, and 3. The district
court grouped Akinosho’s three counts pursuant to U.S.S.G. § 3D1.4. Pursuant
to Section 3D1.4(c), the adjusted offense levels for Counts 1 and 2 were
disregarded in computing the adjusted combined offense level for the grouped
counts. Thus, even if the Section 3C1.1 enhancement was erroneous in
connection with Counts 1 and 2, it is not reversible error. See United States v.
Sidhu, 130 F.3d 644, 652 (5th Cir. 1997).
With respect to its application of a Section 3C1.1 enhancement to the
adjusted offense level for Count 3, the district court did not clearly err in basing
the enhancement upon Akinosho’s production of false identification documents
during a search of his residence. Akinosho did not offer any evidence during the
sentencing hearing to rebut the statement in the PSR that, during the search,
he voluntarily directed the agents to a false New Jersey birth certificate. See
Davis, 76 F.3d at 84; § 3C1.1, comment. (n.4(c)).
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No. 07-20442
Akinosho argues for the first time before this court that his statements to
the agents during the search were not material and that his statements did not
significantly impede or obstruct the agents’ investigation. This argument is
reviewed for plain error. See United States v. Garcia, 470 F.3d 1143, 1146 (5th
Cir. 2006). As the materiality of Akinosho’s statements and whether his
statements impeded or obstructed the agents’ investigation are questions of fact
that could have been resolved by the district court upon proper objection at the
sentencing hearing, there is no plain error with respect to the district court’s
application of the Section 3C1.1. enhancement based upon Akinosho’s
statements to the agents during the search. See § 3C1.1, comment. (n.4(g));
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
Akinosho argues that the Section 3C1.1 enhancement was impermissible
double counting because it punished him for the same conduct punished by his
conviction under 18 U.S.C. § 1028(a)(3) (Count 3) for fraud in connection with
identification documents. This argument, which was not raised below, is also
reviewed for plain error. See Garcia, 470 F.3d at 1146.
The text of Section 3C1.1 and the accompanying commentary do not
prohibit application of the enhancement where the defendant is also convicted
of fraud in connection with identification documents. See United States v.
Calbat, 266 F.3d 358, 364 (5th Cir. 2001), citing United States v. Box, 50 F.3d
345, 359 (5th Cir. 1995). Moreover, as Akinosho points to no case law from this
circuit that would support his argument, he cannot establish plain error. See
United States v. Webster, 162 F.3d 308, 357-58 (5th Cir. 1998).
Akinosho argues that the district court erred in applying a Section
3B1.1(a) aggravating role enhancement to his offense level for Count 3.
Specifically, he argues that the Government failed to show that two of the five
people who were named in the PSR as participants in his criminal activity,
namely his wife and Adetunji Osinulu, were criminally responsible for the
offense. Akinosho did not argue below that Osinulu was not a knowing
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No. 07-20442
participant for purposes of Section 3B1.1(a). Because the extent of Osinulu’s
involvement in the criminal activity was a question of fact capable of resolution
by the district court upon proper objection at sentencing, there was no plain
error in the district court’s finding that Osinulu was a participant in the
criminal activity. See Lopez, 923 F.2d at 50.
In addition, the district court’s application of the Section 3B1.1(a)
enhancement was not clearly erroneous. Akinosho did not rebut the facts stated
in the PSR connecting his wife to his criminal activity, and he did not assert that
his wife was a duped, innocent person in connection with his criminal activity.
Accordingly, a finding that Akinosho’s wife was a participant in the criminal
activity was plausible in light of the record as a whole and was not clearly
erroneous. See De Jesus-Ojeda, 515 F.3d at 442. Alternatively, the
enhancement was not clearly erroneous because it is plausible, based upon the
record as a whole, that Akinosho’s criminal activity was, for purposes of Section
3B1.1(a), “otherwise extensive.” See United States v. Le, 512 F.3d 128, 134 (5th
Cir. 2007); United States v. Allibhai, 939 F.2d 244, 252-53 (5th Cir. 1991).
Akinosho argues that the district court should not have included in the
loss amount attributable to him under Section 2B1.1(b) the $440,793 that he
charged on American Express credit cards using a false identity. He argues that
the PSR and the Government relied on unreliable hearsay from an employee of
American Express that it suffered a loss.
Although Akinosho stated that he paid his credit card bills until the start
of his legal troubles, he did not present any evidence to rebut the information
from American Express that it suffered a $440,793 loss. Accordingly, Akinosho
did not carry his burden of demonstrating that information upon which the
district court relied on in sentencing was materially untrue, and there is no clear
error with respect to the district court’s application of Section 2B1.1(b). See
Davis, 76 F.3d at 84.
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No. 07-20442
Akinosho argues that his 18-month sentences for Counts 1 and 2 exceeded
the applicable guidelines range for those counts because the adjusted offense
levels of 10 for those counts, when combined with a criminal history category of
II, yielded a guidelines range of 8 to 14 months. He also argues that the district
court failed to recognize that it was imposing the non-guideline sentences and
failed to give adequate reasons for imposing the non-guidelines sentences.
Because, as noted above, the adjusted offense levels for Counts 1 and 2
were disregarded in determining the combined offense level for the grouped
counts, Akinosho’s argument is without merit. Moreover, the district court
properly determined Akinosho’s “total punishment” for the multiple-count case
pursuant to U.S.S.G. § 5G1.2(d). See also § 5G1.2, comment. (n.1); United States
v. Runyun, 290 F.3d 223, 251-52 (5th Cir. 2002). As Akinosho has not shown
that the district court erred with regard to his sentences for Counts 1 and 2 and
because his sentences for the three counts fell within the properly calculated
guidelines range, they are presumptively reasonable. See Gall, 128 S.Ct. at 597;
Rita v. United States, 127 S.Ct. 2456, 2462 (2007); United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006). Akinosho’s sentences are AFFIRMED.
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