United States v. Johnson Otabor

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13817 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 18, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:11-cr-00084-JOF-ECS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
ITOHAN OTABOR,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
No. 11-13863
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-00084-JOF-ECS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNSON OTABOR,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(May 18, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Johnson Otabor (Johnson) and his wife Itohan
Otabor (Itohan) appeal their sentences after pleading guilty to conspiracy to import
into the United States at least one kilogram of heroin in violation of
21 U.S.C. § 963, conspiracy to possess with the intent to distribute at least one
kilogram of heroin in violation of 21 U.S.C. § 846, importation into the United
States of at least one kilogram of heroin in violation of 21 U.S.C. § 952, and
possession with the intent to distribute at least one kilogram of heroin in violation
of 21 U.S.C. § 841. On appeal both Johnson and Itohan argue that the district
court erred by not granting them a minor-role reduction under U.S.S.G. § 3B1.2.
Itohan also questions the reasonableness of her sentence issued the lower end of
the Guideline range. After review, we affirm the district court.
I.
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The Otabors are Nigerian nationals who, after falling into financial trouble,
agreed to import heroin for a Mrs. Pat and Mr. Small. Before fully agreeing to the
scheme, Itohan did a test run from Nigeria to Atlanta after swallowing pellets of
cola beans. Following the test run, the Otabors attempted to back out of the plan,
but Mrs. Pat and Mr. Small threatened them. Thereafter, the Otabors agreed to
smuggle the heroin in exchange for $1,500.00 for every 100 grams they
successfully transported into the United States. If the Otabors had been
successful, then they would have received about $28,500.00 for importing the
heroin.
During their initial run, Customs and Border Protection (CBP) stopped
Johnson and Itohan, along with their two-year old daughter, in Atlanta, Georgia.
Both quickly admitted to swallowing pellets of heroin, and CBP Officers found
1.9163 kilograms of heroin between Johnson and Itohan. Itohan imported 675.3
net grams of fifty-one percent pure heroin, and Johnson imported 1,241 net grams
of fifty-four percent pure heroin. Initially the Officers only found 103 pellets that
Johnson swallowed, even though Johnson insisted that he had swallowed 104
pellets. A few weeks later Johnson passed the last pellet while in custody and
immediately turned it over to authorities.
At sentencing the Otabors both received sentences below the statutory
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minimum because they qualified for the safety-valve provision under
U.S.S.G. § 2D1.1(b)(11), and their sentences were further decreased by three
levels because they accepted responsibility for their conduct. With a criminal
history category of I, their recommended Guideline range was seventy to eighty-
seven months. The district court denied their request for a minor-role reduction
and sentenced Itohan to seventy months and Johnson to sixty months.
II.
We review the district court’s determination of whether a defendant
qualifies for a minor-role adjustment under the Guidelines for clear error. United
States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The
defendant bears the burden of proving by a preponderance of the evidence that his
role was minor. Id. at 939.
There are two general principles that inform a district court’s determination
of whether a defendant qualifies for a minor-role adjustment: “first, the
defendant’s role in the relevant conduct for which she has been held accountable
at sentencing, and second, her role as compared to that of other participants in her
relevant conduct.” Id. at 940. In considering the first principle, if “the relevant
conduct attributed to a defendant is identical to her actual conduct, she cannot
prove that she is entitled to a minor role adjustment simply by pointing to some
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broader criminal scheme in which she was a minor participant but for which she
was not held accountable.” Id. at 941. Furthermore, if the drug courier’s conduct
is “limited to her own act of importation, a district court may legitimately conclude
that the courier played an important or essential role in the importation of those
drugs.” Id. at 942–43. Finally, the sentencing court typically takes into
consideration a number of factors in drug courier cases to decide what role a
defendant played, including “amount of drugs, fair market value of drugs, amount
of money to be paid to the courier, equity interest in the drugs, role in planning the
criminal scheme, and role in the distribution.” Id. at 945.
Here, the district court did not clearly err in finding that the Otabors were
indispensable to the drug-importation scheme. Although they may have been cogs
in a larger drug scheme, the Otabors were not minor participants in the crimes
actually attributed to them. Furthermore, the district court did not err in finding
that the Otabors smuggled a large amount of heroin into the United States, the
market value of the heroin would be high because of its high purity level, and the
Otabors would be paid a large amount for the importation ($28,500). Therefore,
we affirm the district court’s decision to not apply the minor-role reduction to the
Otabors’ sentences. Furthermore, the small difference between the amount carried
by Itohan and Johnson does not warrant a minor-role reduction for Itohan.
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III.
Itohan also appeals the reasonableness of her sentence. We review the
reasonableness of a sentence under the abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). We first ask if a
sentence is procedurally reasonable by looking at whether the district court
properly calculated the Guideline range, treated the Guidelines as advisory,
considered the § 3553(a) factors, and adequately explained the chosen sentence.
Id. at 51, 128 S. Ct. at 597. After determining that a sentence is procedurally
reasonable, we then examine whether the sentence is substantively reasonable. Id.
Although we do not assume a sentence within the Guidelines range is reasonable,
we expect it to be so. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Here, the district court correctly calculated the Guidelines range, treated that
Guidelines as advisory, and considered the § 3553(a) factors. Itohan’s sentence
was also substantively reasonable. The district court considered the fact that she
did a test run as a factor that favored a higher sentence than her husband. The
district court did not abuse its discretion when it sentenced Ithoan to a seventy
month sentence, at the low end of the Guideline range.
Upon review of the record and the parties briefs, we affirm the district court.
AFFIRMED.
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