United States v. Ayibatonye Bienzigha

Case: 18-50100 Document: 00514744995 Page: 1 Date Filed: 12/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-50100 United States Court of Appeals
Fifth Circuit
FILED
December 3, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
AYIBATONYE BIENZIGHA, also known as Tracy Hawkins,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CR-347-7
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
Ayibatonye Bienzigha pleaded guilty to conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i), (a)(2)(B)(i) & (h). She
was sentenced at the low end of the guidelines sentencing range to 37 months
of imprisonment. She did not object to the sentence imposed.
For the first time, Bienzigha argues that the district court procedurally
erred by applying a two-level “sophisticated laundering” enhancement under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-50100 Document: 00514744995 Page: 2 Date Filed: 12/03/2018
No. 18-50100
U.S.S.G. § 2S1.1(b)(3), in conjunction with an enhancement under U.S.S.G.
§ 2B1.1(b)(10)(B), which provides for a two-level increase in a defendant’s base
offense level if a substantial part of the fraudulent scheme was committed from
outside the United States. Bienzigha asserts that the application of both
guidelines resulted in impermissible double counting. She also argues, for the
first time, that she was entitled to a reduction in her offense level based on her
role in the offense.
Because these issues were not raised in the district court, review is for
plain error only. Accordingly, Bienzigha must show that (1) there was an error;
(2) the error was clear or obvious; and (3) the error affected her substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If those
requirements are met, we have the discretion to correct the error, but only if
the error “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks, brackets, and citation
omitted); see Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906-07 (2018).
We note that Bienzigha does not dispute that a substantial part of the
money laundering conspiracy was committed in Canada and Nigeria, as set
forth in the factual basis and the presentence report, nor does she dispute that
the offense involved “sophisticated laundering,” as that term is defined for
purposes of the § 2S1.1(b)(3) enhancement. Thus, she has waived any
challenge to the sufficiency of the evidence supporting those enhancements.
See United States v. Reagan, 596 F.3d 251, 254 (5th Cir. 2010).
Further, the conduct supporting the § 2B1.1(b)(10)(B) increase was not
the only conduct supporting the “sophisticated laundering” enhancement. See
U.S.S.G. § 2S1.1, comment. (n.5(B)). Accordingly, Bienzigha cannot
demonstrate that the district court’s application of § 2B1.1(b)(10)(B) and
§ 2S1.1(b)(3) constituted error, much less a clear or obvious error.
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Case: 18-50100 Document: 00514744995 Page: 3 Date Filed: 12/03/2018
No. 18-50100
As for her argument that she should have received an adjustment based
on her minor or mitigating role in the offense, Bienzigha never moved for or
argued in favor of a minor or minimal role adjustment, and the district court
made no factual finding on that issue. Because the decision whether to apply
U.S.S.G. § 3B1.2 “involves a determination that is heavily dependent upon the
facts of the particular case,” § 3B1.2, comment. (n.3(C))), and because this
factual issue could have been resolved by the district court if it had been
presented there, Bienzigha cannot now demonstrate plain error, see United
States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015); United States v. Alvarado-
Saldivar, 62 F.3d 697, 700 (5th Cir. 1995).
Finding no clear or obvious error, we AFFIRM the district court’s
judgment.
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