United States v. Hamzat, Akanni ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 97-1987, 97-2541, 98-3839
United States of America,
Plaintiff-Appellee,
v.
Akanni Hamzat, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 95 CR 523--Harry D. Leinenweber, Judge.
Argued June 9, 1999 --Decided June 26, 2000
Before Posner, Chief Judge, and Bauer and
Diane P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge. Akanni
Hamzat, Adetoro Adeniji, and Sunny Emezuo
were involved in a major way during the
early 1990s with trafficking in heroin
between Nigeria, Thailand, and the United
States. Led by Omobola Adegbite (known as
"Bola"), a woman who lived in
Merrillville, Indiana, the ring involved
nearly twenty people.
Hamzat, Adeniji, and Emezuo, the three
defendants before us in these appeals,
worked for Bola in various capacities.
Hamzat, who met Bola when he was dating
her sister, was a courier. On Bola’s
instructions and over the course of
multiple deliveries, he personally
transported 6.8 kilograms of heroin. (The
entire conspiracy involved 60 kilograms.)
Hamzat also assisted Bola in conveying
payments by wire transfer to Bola’s
overseas suppliers. She paid him on a
per-transaction basis, rather than in
some way tied to the drug profits. Hamzat
pleaded guilty under a plea agreement to
one count of conspiracy to distribute
heroin, in violation of 21 U.S.C. sec.
846. He was sentenced to 97 months in
prison and five years’ supervised
release.
After meeting Bola at a birthday party
for Bola’s twins, Adeniji was recruited
to serve as a "go-between" for Bola and
Adeniji’s brother-in-law, a drug dealer.
Between 1993 and 1995, she repeatedly
purchased heroin from Bola in quantities
of at least 100 grams, which she then
gave to her brother-in-law. Sometimes she
purchased on credit. Adeniji chose to
plead not guilty and go to trial; the
result was convictions on charges of
conspiracy to distribute heroin, 21
U.S.C. sec. 846, use of the telephone to
facilitate distribution of heroin, 21
U.S.C. sec. 843(b), and possession with
intent to distribute heroin, 21 U.S.C.
sec. 841(a)(1). Her sentence was for 121
months in prison, a fine of $5,000, and
five years’ supervised release.
Emezuo was one of Bola’s Bangkok-based
suppliers. He helped another supplier,
Mutitat Titilola Olubi ("Titi") procure
heroin for shipment to the United States,
which they packaged and hid in luggage to
avoid detection. He was paid in several
ways: he invested in portions of the
heroin shipments and received a balance
of the proceeds, he accepted from Bola an
expensive watch and a 1995 Acura, and he
handled wire transfers of U.S. currency
that he knew constituted payment for
heroin. After extensive negotiations, he
was unable to obtain a plea agreement. On
the day trial was to begin, he entered a
blind plea of guilty to one count of
conspiracy to possess with intent to
deliver, in violation of 21 U.S.C. sec.
846, and received a sentence of 145
months in prison, a fine of $2,500, plus,
once again, five years’ supervised
release.
Hamzat and Adeniji appeal various
aspects of their sentences. Emezuo’s
appellate attorney has filed an Anders
brief and asked to withdraw. Responding
to the Anders brief, Emezuo asks us to
find that his trial counsel was
ineffective and that this ineffectiveness
had a negative effect on his sentence.
A. Akanni Hamzat
1. Minor or Minimal Role in the
Offense.
Hamzat first argues that his
insignificant role in the offense
entitles him to a reduction in his
offense level under U.S.S.G. sec. 3B1.2.
He characterizes himself as a mere
"errand-runner" who made deliveries as
ordered by Bola, with no decision-making
role and no connection between his own
earnings and the success of the
conspiracy. A determination of the
defendant’s role in the offense is
"heavily dependent upon the facts of the
particular case," U.S.S.G. sec. 3B1.2
Background Note, and we accordingly
review the district court’s findings for
clear error. United States v. Nobles, 69
F.3d 172, 189-90 (7th Cir. 1995).
Section 3B1.2 provides for a four-level
reduction if the defendant can show that
he was a "minimal participant" in the
offense, which is defined as someone
"plainly among the least culpable of
those involved in the conduct of a
group." U.S.S.G. sec. 3B1.2, Application
Note 1. Section 3B1.2 allows a two-level
reduction if the defendant can show that
he was a "minor participant" in his
offense, "less culpable than most other
participants." U.S.S.G. sec. 3B1.2,
Application Note 3. A three-level
reduction is allowed if the defendant
falls between a minor and minimal
participant. To receive an offense level
reduction under sec. 3B1.2, a defendant
must demonstrate she was "substantially
less culpable than the conspiracy’s other
participants." United States v. Soto, 48
F.3d 1415, 1425 (7th Cir. 1995), quoting
United States v. DePriest, 6 F.3d 1201,
1214 (7th Cir. 1993).
Hamzat claims that he played a minor
role because he was charged with only the
6.8 kilograms he actually delivered (and
not the 60 kilograms attributable to the
conspiracy). Unfortunately for him, this
fact virtually dooms his effort to
receive the downward adjustment he seeks.
This circuit follows the rule that where
a defendant is sentenced only for the
amount of drugs he handled, he is not
entitled to a sec. 3B1.2 reduction.
United States v. Burnett, 66 F.3d 137,
140 (7th Cir. 1995). "When a courier is
held accountable for only the amounts he
carries, he plays a significant rather
than a minor role in that offense." Id.;
see also United States v. Cobblah, 118
F.3d 549, 552 (7th Cir. 1997); United
States v. Uriostegui-Estrada, 86 F.3d 87,
90 (7th Cir. 1996); United States v.
Lampkins, 47 F.3d 175, 181 & n.3 (7th
Cir. 1995).
We are aware, of course, that not all
circuits have embraced our approach to
mitigating role reductions. See, e.g.,
United States v. Isaza-Zapata, 148 F.3d
236, 241 (3d Cir. 1998) (rejecting the
approach taken in Burnett and Lampkins);
United States v. Snoddy, 139 F.3d 1224,
1231 (8th Cir. 1998); United States v.
Demers, 13 F.3d 1381, 1383-84 (9th Cir.
1994). On the other hand, the Burnett
approach has other adherents. See United
States v. Rodriguez de Varon, 175 F.3d
930, 941-44 (11th Cir. 1999) (en banc),
cert. denied 120 S. Ct. 424 (1999) (No.
99-6150); United States v. James, 157
F.3d 1218, 1220 (10th Cir. 1998); United
States v. Marmolejo, 106 F.3d 1213, 1217
(5th Cir. 1997); United States v. Lewis,
93 F.3d 1075, 1085 (2d Cir. 1996); United
States v. Olibrices, 979 F.2d 1557, 1560-
61 (D.C. Cir. 1992).
The circuits that have rejected our mode
of analysis take the position that the
Guidelines require the district court to
"examine all relevant conduct, not merely
the defendant’s, in assessing his
relative culpability." Isaza-Zapata, 148
F.3d at 241. The minor or minimal
participant reduction then operates with
reference to that much greater starting
point. Here, the relevant conduct was
arguably 60 kilograms, which yields an
offense level of 38 for someone like
Hamzat with a Criminal History Category
of I. Unadjusted, the sentencing range
for such a person is 235-293 months, but
even with a 4-level downward adjustment
to a level 34, the range is still 151-188
months, considerably more than the 97
months Hamzat received. Thus, it is clear
that some defendants would be far worse
off under the rule adopted by some of our
sister circuits. Our approach simply
takes a strict view of the offense
charged and the "reasonable
foreseeability" of other activity, but
then holds the defendant fully
responsible for what he or she actually
did. We think this is a defensible
reading of the Guidelines, and we are not
inclined to change it here.
Second, Hamzat argues that he was a mere
"errand-runner" who made deliveries under
the order of Adegbite. Even if Hamzat was
"just" a courier, we have noted before
that couriers play an important role in
any drug distribution scheme and
therefore are not automatically entitled
to a mitigating role reduction. United
States v. Osborne, 931 F.2d 1139, 1158
(7th Cir. 1991), quoting United States v.
Buenrostro, 868 F.2d 135, 138 (5th Cir.
1989). See also Uriostegui-Estrada, 86
F.3d at 89-90. Hamzat repeatedly did jobs
for Bola, not only carrying drugs but
assisting her with wire transfers of drug
money. Given the extent of his
involvement, the district court properly
denied Hamzat a mitigating role
reduction.
2. Acceptance of Responsibility.
Hamzat received a two-level reduction
for acceptance of responsibility under
U.S.S.G. sec. 3E1.1(a). Not content with
that, he urges here that he should have
received the additional one-level
reduction possible under sec. 3E1.1(b).
The extra level can be awarded if the
defendant qualifies for the sec. 3E1.1(a)
reduction, the defendant’s offense level
is 16 or greater, and the defendant
either provided complete information to
the government in a timely fashion or
alerted the government in time to his
intention to enter a plea of guilty, so
that the prosecution and court could save
their own resources.
The district court concluded that Hamzat
waited too long to enter his guilty plea
to warrant the additional reduction. This
finding (a quintessential question of
judgment for the court) was not clearly
erroneous. Hamzat did not enter his plea
until three days after the original trial
date, and one week before the rescheduled
date. He has attempted to excuse the
last-minute nature of the plea by arguing
that he delayed only because his lawyers
were trying to work out the best deal
possible. The government had known for
some time that he wanted to plead guilty,
and he sees no reason why he should be
penalized for hard negotiations. Further
more, he suggests, the government was not
prejudiced by the last-minute nature of
his plea, because it had to prepare to
try his co-defendants anyway.
The district court was correct to reject
this line of argument. For starters,
Hamzat in fact did not make his intention
to plead known right away: approximately
one year passed between his arrest and
his plea. He decided to plead guilty only
after his original trial date had come
and gone. We have previously held that a
defendant who waits to plead guilty until
the "brink of trial" is not entitled to a
reduction, United States v. Covarrubias,
65 F.3d 1362, 1367 (7th Cir. 1995);
surely, therefore, waiting until after
the original trial date is not "at a
sufficiently early point in the process
so that the government may avoid
preparing for trial and the court may
schedule its calender efficiently."
U.S.S.G. sec. 3E1.1, Application Note 6.
We find equally unpersuasive Hamzat’s
argument that the government was not
prejudiced by his delay. True, whatever
Hamzat did, the government had to prepare
to try his co-defendants. Nonetheless,
the evidence and case against Hamzat was
not identical to that presented against
his co-defendants: the government was
forced to prepare specifically for
Hamzat’s trial.
Last, we see no merit in the idea that
an untimely plea can be excused for
purposes of sec. 3E1.1(b) whenever the
defendant holds out for a better deal.
The cases upon which Hamzat relies do not
so hold; instead, they stand for the
quite different proposition that the
court may properly make the additional
reduction available to a defendant who
admits factual guilt in a timely manner
but challenges the government’s position
on legal grounds. See United States v.
Smith, 106 F.3d 350, 352 (11th Cir.
1997); United States v. McConaghy, 23
F.3d 351, 353-54 (11th Cir. 1994). Here,
Hamzat delayed admitting factual guilt
and, as a result, lost the sec. 3E1.1(b)
reduction. This was nothing more or less
than a strategic decision that turned out
badly. That he now regrets his choice
does not turn the district court’s denial
of the additional acceptance of
responsibility reduction into an error.
B. Adetoro Adeniji
1. Drug Quantity Calculation.
The district court, adopting the
presentencing report’s recommendation,
attributed slightly less than three kilo
grams of heroin to Adeniji. Adeniji
argues that the evidence supports only
750 grams. The district court’s
calculation of the quantity of drugs
involved in the offense is a finding of
fact subject to clear error review.
United States v. Montgomery, 14 F.3d
1189, 1196 (7th Cir. 1994). In this case,
however, Adeniji neither filed written
objections to the presentencing report
nor objected during the sentencing
hearing to the calculation of drug
quantities directly attributable to her.
Her omissions amount to forfeiture and
result in a plain error standard of
review. United States v. Olano, 507 U.S.
725, 731-35 (1993); United States v.
Wilson, 134 F.3d 855, 869 (7th Cir.
1998).
Like Hamzat, Adeniji was sentenced only
for the amounts directly attributable to
her. A memorandum accompanying the
presentencing report sets forth the many
individual transactions upon which the
three kilogram calculation was based. The
district court accepted this account,
which was supported by Bola’s testimony,
wiretap transcripts, agent testimony,
seized drugs, and seized drug records.
There was no clear error: Adeniji is able
to come up with a drug quantity total of
750 grams only by disregarding a number
of transactions for which the government
provided evidentiary support.
Adeniji claims that the district court’s
calculation was possible only through
double-counting, but our review of the
record reveals no such problem. The
amounts per transaction were specifically
set out and supported through testimony,
exhibits, and other evidentiary
submissions. That there was no double-
counting is also supported by the fact
that Adeniji was directly involved in
each of the listed transactions; all of
the amounts included in Adeniji’s total
were actually received by her or
intercepted just before reaching her.
Last, Adeniji argues that the drug
quantity attributed to her was not
established with sufficient specificity
to allow for adequate appellate review
and accordingly her sentence must be
vacated. Not true: the district judge
stated in open court that he was adopting
the presentencing report’s recommendation
and holding Adeniji responsible for just
under three kilograms, and that is
enough. See United States v. Taylor, 135
F.3d 478, 483 (7th Cir. 1998); see also
United States v. Brimley, 148 F.3d 819,
822 (7th Cir. 1998); Fed. R. Crim. P. 32.
The district court did not discuss each
of the transactions at issue but, given
that defense counsel offered no challenge
to any of the individual transactions
either by submitting another version of
events to counter the government’s
version or by objecting during
sentencing, we see no need for the court
to have done so.
2. Minor or Minimal Role in the
Offense.
Like Hamzat, Adeniji argues that she
played a minor or minimal role in the
offense that entitles her to a two- to
four-level reduction in her offense
level. See U.S.S.G. sec. 3B1.2. She did
not make this argument to the district
court, so our review once again is for
plain error only.
Adeniji’s problem is the same as
Hamzat’s: she was sentenced only for the
quantity of drugs directly attributable
to her and is therefore precluded from a
mitigating role reduction. See, e.g.,
Burnett, 66 F.3d at 140. Moreover,
Burnett notwithstanding, there is no
plain error in the district court’s
conclusion that she was neither a minimal
nor a minor player. Adeniji purchased
nearly three kilograms of heroin from
Bola for resale. Although she was less
culpable than other members of the
conspiracy, this court has recognized
that low-level dealers are vital to the
success of a drug conspiracy and
accordingly upheld district courts’
refusals to grant them mitigating role
reductions. See, e.g., United States v.
Carraway, 108 F.3d 745, 760 (7th Cir.
1997); United States v. Brick, 905 F.2d
1092, 1095-96 (7th Cir. 1990).
Finally, Adeniji argues that her co-
defendants were sentenced less harshly
than she was. That Adeniji’s sentence was
harsher is a mere reflection of the
proper application of the Sentencing
Guidelines: the guideline sections
applicable to Adeniji were higher than
those applicable to her co-defendants who
pleaded guilty and received downward
departures for cooperating. Such
justifiable disparities in sentencing are
not a proper basis for a downward
departure. See United States v.
McMutuary, Nos. 98-1150 & 98-1151, slip
op. at 22 (7th Cir. June 21, 2000);
United States v. Meza, 127 F.3d 545, 549
(7th Cir. 1997).
3. Acceptance of Responsibility
Reduction.
Adeniji argues that she is entitled to
a reduction in her offense level for
acceptance of responsibility. See
U.S.S.G. sec. 3E1.1. Her failure to make
this argument at sentencing leads again
to a plain error standard of review. In
any event, we find no error, plain,
clear, or otherwise, in the district
court’s decision. Adeniji went to trial
and denied the prosecution’s factual
allegations. While a challenge to the
legal basis for a charge (such as a
constitutional challenge to a statute or
a challenge to the applicability of a
statute to the defendant’s conduct) does
not preclude the possibility of an
acceptance of responsibility reduction,
the Guidelines explain that the sec.
3E1.1 "adjustment is not intended to
apply to a defendant who puts the
government to its burden of proof at
trial by denying the essential factual
elements of guilt, is convicted, and only
then admits guilt and expresses remorse."
U.S.S.G. sec. 3E1.1, Application Note 2.
Adeniji has tried to justify her failure
to come forward with the truth earlier by
arguing that she wanted to plead guilty
but was told by her lawyer that he was
too busy and that the government did not
want to talk to her. Naturally, the
record provides no support for these
claims. Her alleged problems with her
representation may be addressed on
collateral review via an ineffective
assistance of counsel claim. On the
record before us, the district court was
entitled to conclude that she had not
accepted responsibility.
C. Sunny Emezuo
Emezuo’s appellate counsel has moved to
withdraw based upon a brief filed under
Anders v. California, 386 U.S. 738
(1967). As he is entitled to, Emezuo has
filed a response, in which he argues that
his trial attorney, Robert Bailey, failed
to provide effective assistance of
counsel.
As an initial matter, we note that the
Anders brief that was filed barely meets
the minimal standard we can accept. An
Anders brief is adequate on its face if
"it explains the nature of the case and
intelligently discusses the issues that a
case of the sort might be expected to
involve." United States v. Tabb, 125 F.3d
583, 584 (7th Cir. 1997); United States
v. Wagner, 103 F.3d 551, 553 (7th Cir.
1996). If the brief is adequate on its
face, "we think we can comfortably rely
on the professional opinion it offers."
Tabb, 125 F.3d at 584. This brief devotes
only three pages to its discussion of the
merits and its arguments are highly
conclusory. Moreover, the brief makes the
bizarre claim that Emezuo’s 145-month
sentence is not reviewable on appeal
because it was within the applicable
Guideline range.
We have, however, looked at the points
counsel has raised in his brief, we have
reviewed the record and the lengthy
appendix furnished to us, and we have
considered Emezuo’s response to his
counsel’s action. Emezuo is distressed
that his more culpable co-conspirators
(such as Bola) got lesser sentences
because they were able to negotiate
successful plea agreements. He presents
this and other arguments, however,
through the prism of an ineffective
assistance of counsel claim. As a
layperson, there is no reason Emezuo
would know that such claims are almost
never suitable for direct appeals,
because the record almost inevitably will
not contain the crucial information for
assessing them properly. United States v.
D’Iguillont, 979 F.2d 612, 614-15 (7th
Cir. 1992). We therefore decline to
consider that argument at this time,
since it is more properly handled in a
petition under 28 U.S.C. sec. 2255.
Apart from that, our review of the
record reveals no arguable issue about
the way the district court handled
Emezuo’s sentencing. At the sentencing
hearing, the district court had before it
the PSR, his lawyer’s motion for a
downward departure, and copies of a
number of "certificates of achievement"
Emezuo had earned during his stay at the
MCC. The court substantially accepted the
PSR’s recommendations. The court
attributed 29.6 kilograms of heroin to
Emezuo, found that he played neither an
aggravating nor a mitigating role in the
offense, and granted him a two-level
adjustment for acceptance of
responsibility. The court denied the
safety-valve adjustment because Emezuo
had not, prior to sentencing, told the
government everything he knew about the
offense. The court also considered
Bailey’s motion for a downward departure.
Bailey argued that a downward departure
was justified because after Emezuo’s
release from American prison, he would be
deported to Nigeria, where he was likely
to be incarcerated for the same
activities. Although the court rejected
this argument as too speculative, it
departed downward by six months to
compensate for the fact that, as a
foreign national, Emezuo was not eligible
to spend the final six months of his
sentence in a halfway house.
The court’s factual findings would
easily withstand clear error review, if
Emezuo were to pursue an appeal, and it
is clear that the court understood the
discretion it had with respect to
departures and exercised it. Thus, we
agree with the ultimate conclusion of
Emezuo’s appellate counsel that an appeal
would be futile.
We therefore Affirm the sentences in
Appeal Nos. 97-1987 (Akanni Hamzat) and
97-2541 (Adetoro Adeniji). In No. 98-3839
(Sunny Emezuo), we grant counsel’s motion
to withdraw from the case and we Dismiss
the appeal.