United States v. Okulaja ( 2022 )

Case: 22-20077 Document: 00516536934 Page: 1 Date Filed: 11/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 7, 2022
No. 22-20077
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Ademola Babatunde Okulaja,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-342-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Ademola Babatunde Okulaja appeals his sentence imposed on remand
for his conviction of two counts of false use of a passport. At resentencing,
the Government stated that immigration authorities counseled that a
sentence exceeding 12 months would trigger removal proceedings or result
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
Case: 22-20077 Document: 00516536934 Page: 2 Date Filed: 11/07/2022
No. 22-20077
in a closer review of Okulaja’s immigration status. Okulaja now asserts that
the Government mistakenly informed the district court that a sentence of
more than 12 months could have immigration consequences, as the relevant
immigration statute, 8 U.S.C. § 1101(a)(43)(P), uses the phrase “at least 12
months.” Thus, he maintains that when the district court revised its
sentence from concurrent prison terms of 12 months and a day to concurrent
prison terms of 12 months, it imposed a procedurally unreasonable sentence
because it relied on erroneous information in doing so. Although Okulaja was
released from Bureau of Prisons custody on February 2, 2022, he remains
subject to three-year terms of supervised release; thus, his appeal is not moot.
See United States v. Vega, 960 F.3d 669, 672-75 (5th Cir. 2020).
Here, the written transcript of the resentencing hearing is ambiguous
as to the district court’s intent in modifying Okulaja’s term of imprisonment
from 12 months and a day to 12 months. Although the district court distanced
itself from potential immigration consequences, it reduced Okulaja’s
sentence by one day in an effort to “take[] care of our problem.” The district
court did not explain what it meant by “problem,” and its intent is not
discernible from the record as a whole.
In light of the ambiguities in the record, we REMAND to permit the
district court to reconsider its sentence. See United States v. Garcia-Ortiz,
310 F.3d 792, 795-96 (5th Cir. 2002). The only issue on remand is whether
the district court intended to account for the statutory threshold found in
Section 1101(a)(43)(P) by sentencing Okulaja to 12 months of imprisonment.
If the district court did so intend, Okulaja should be resentenced with the
district court’s full awareness that the relevant statute uses the phrase “at
least 12 months.” If the district court did not intend to account for the
statutory threshold, then Okulaja’s sentence should stand.
2