United States v. Nelson Olayanju

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3308
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UNITED STATES OF AMERICA
v.
NELSON OLAYANJU,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 3-10-cr-00571-001)
District Judge: Honorable Peter G. Sheridan
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 19, 2012
Before: AMBRO, and VANASKIE, and VAN ANTWERPEN, Circuit Judges
(Filed: June 20, 2012)
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OPINION OF THE COURT
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VAN ANTWERPEN, Circuit Judge.
Nelson Olayanju appeals the sentence resulting from his plea of guilty to a count
of conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349. Olayanju was
sentenced to 51 months of incarceration, three years of supervised release, and restitution
in the amount of $236,267.62. Counsel for Olayanju has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and requested leave to withdraw. Because we agree
that there are no non-frivolous issues for Olayanju to appeal, we will grant Olayanju‟s
counsel leave to withdraw and will affirm the District Court‟s sentence.
I.
Because we write primarily for the parties, we set forth only the facts and history
relevant to the disposition of this appeal. Olayanju pleaded guilty to one count of
conspiracy to commit bank fraud.1 As a part of the plea agreement, Olayanju and the
Government agreed that if the District Court adopted a Sentencing Guidelines offense
level between 21 and 24, neither party would seek a sentence outside the corresponding
sentencing range. The parties disagreed, however, regarding the enhancement for
Olayanju playing an “aggravating role” under U.S.S.G. § 3B1.1(a). Olayanju argued for
a 3-level enhancement, while the Government argued for a 4-level enhancement. The
District Court agreed with the Government.
Olayanju also reserved his rights to challenge the loss amount calculated under
U.S.S.G. § 2B1.1. The Probation Officer determined that the amount of intended loss
was more than $400,000 but less than $1,000,000, thereby triggering a 14-level
enhancement. Olayanju contended the actual loss was more than $200,000 but less than
1
The grand jury indicted Olayanju on fourteen counts. These included one charge of
conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, twelve counts of bank
fraud, in violation of 18 U.S.C. § 1344, and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A.
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$400,000. The District Court analyzed § 2B1.1, adopted the Government‟s argument
regarding intended loss, and added 14 levels.
Olayanju‟s offense level was calculated to be 22. 2 When combined with
Olayanju‟s criminal history score of III, this resulted in an advisory range of 51 to 63
months. The District Court imposed a 51 month sentence, a three-year supervised release
term, and ordered restitution in the amount of $236,267.62. Olayanju filed a notice of
appeal, and his counsel filed an Anders brief with this Court. The Government has filed a
brief concurring with Olayanju‟s counsel that no non-frivolous issues exist in the appeal.
Olayanju was notified of his right to file a pro se brief explaining why his conviction or
sentence should be overturned on appeal, but has failed to do so.
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This
Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We
exercise plenary review over an Anders brief. See Penson v. Ohio, 488 U.S. 75, 80
(1988) (“[T]he appellate court . . . must . . . itself . . . decide whether the case is wholly
frivolous” (internal quotation marks and citation omitted)).
III.
2
The base offense level for an offense committed under 18 U.S.C. § 1349 is 7. The
District Court added 4 levels for the “aggravating role” and 14 levels for the amount of
loss as discussed supra. The District Court then made a 2-level downward adjustment for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and a 1-level downward
adjustment for assisting the authorities by entering a plea of guilty pursuant to U.S.S.G. §
3E1.1(b). The final level was thus 22.
3
Our local rules provide that where “counsel is persuaded that the appeal presents
no issue of even arguable merit, counsel may file a motion to withdraw and supporting
brief pursuant to Anders v. California, 386 U.S. 738 (1967).” THIRD CIRCUIT L.A.R.
109.2(a). When presented with an Anders brief, our inquiry is “twofold: (1) whether
counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2's] requirements;
and (2) whether an independent review of the record presents any nonfrivolous issues.”
United States v. Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (alteration in original)
(internal quotation mark omitted) (quoting United States v. Youla, 241 F.3d 296, 300 (3d
Cir. 2001)).
In an Anders brief appellant's counsel must “satisfy the court that he or she has
thoroughly scoured the record in search of appealable issues” and then “explain why the
issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir. 2000). If the
Anders brief “initially appears adequate on its face, the proper course „is for the appellate
court to be guided in reviewing the record by the Anders brief itself‟” and confine our
review to those portions of the record implicated by the brief. Youla, 241 F.3d at 301(quoting United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996)).
Counsel identified three potential areas of that could give rise to an appeal in his
brief: (1) the jurisdiction of the District Court, (2) the validity of the plea, and (3) the
reasonableness and legality of the sentence. Counsel has demonstrated an examination
and understanding of the plea agreement entered into by Olayanju, and the limitations set
forth therein. He has also conducted a substantive analysis of the plea and sentencing
hearings in the context of relevant case law and concluded that no non-frivolous
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arguments can be made on appeal. We have determined that the brief filed in this case is
thus facially adequate, and accordingly limit our review to the portions of the record
implicated by it.
After reviewing these portions of the record, we agree with counsel that no non-
frivolous issues exist. First, the District Court properly had jurisdiction under 18 U.S.C §
3231. Second, the transcript of the plea hearing demonstrates that the District Court
complied with the legal standards set forth in Boykin v. Alabama, 395 U.S. 238 (1969)
and Federal Rule of Criminal Procedure 11. As required by Boykin, Olayanju‟s plea was
knowing and voluntary. Boykin, 395 U.S. at 243 n.5. In its colloquy the District Court
made Olayanju aware of his rights, and notified him that by pleading guilty he was
waiving those rights. In addition, the plea agreement made clear that Olayanju was
waiving his appellate rights.3 As a result of the thorough nature of the plea colloquy and
plea agreement below, no non-frivolous issue exists for Olayanju to pursue in this appeal.
Third, and finally, the sentence imposed presents no non-frivolous issues. Here,
the District Court imposed a sentence that was procedurally and substantively reasonable.
The District Court properly conducted the three-step sentencing process that constitutes
the procedural aspect of the sentencing hearing. See United States v. Gunter, 462 F.3d
237, 247 (3d Cir. 2006). At the first step, it correctly calculated the advisory Guidelines
3
Olayanju waived his right to challenge the sentence imposed if the “sentence fell within
or below the Guidelines range that results from a total Guidelines offense level of 21.”
The plea agreement also states that this waiver is “binding on the parties even if the Court
employs a Guidelines analysis different from that stipulated to herein.” The District
Court used an offense level of 22 and imposed a 51 month sentence, which is within the
46 to 57 month sentence associated with an offense level of 21.
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range. The District Court‟s rulings regarding the “aggravating role” played by Olayanju,
and the amount of loss, were made after these issues were discussed at the hearing. Both
rulings were based upon factual findings that justified the District Court‟s conclusion. At
the second step of the procedural analysis, the District Court was not presented with any
departure motions for it to rule upon. For the third and final step, the District Court
evaluated the § 3553(a) factors and explained their significance in its sentence. These
actions demonstrate that the District Court‟s sentence was procedurally sound. As a
result, we turn to the substantive features of the sentence.
Where a sentence imposed is procedurally sound, “we will affirm it unless no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.” United States v. Tomko, 562 F.3d
558, 568 (3d Cir. 2009) (en banc). After a review of the facts of Olayanju‟s guilty plea
and sentencing hearing, we find that the District Court displayed a firm grasp of the facts
and circumstances surrounding Olayanju‟s conduct and the relevant Sentencing
Guideline considerations. With these in mind, the District Court sentenced Olayanju to
the bottom of the advisory Guidelines range; a range which Olayanju had agreed was
reasonable in his plea agreement. To that end, we are satisfied that there are no non-
frivolous issues for Olayanju to pursue on appeal.
IV.
For the foregoing reasons, we grant the motion to withdraw and affirm the District
Court‟s judgment and sentence.
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