United States v. Christopher Omigie

Case: 19-40526 Document: 00515593307 Page: 1 Date Filed: 10/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 7, 2020
No. 19-40526 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Omigie, also known as Chief,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:13-CR-96-8
Before Higginbotham, Jones, and Higginson, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Upon pleading guilty to conspiring with intent to distribute cocaine,
Appellant Christopher Omigie was sentenced to 168 months’ imprisonment
followed by five years of supervised release. He was also ordered to forfeit
$250,000. On appeal, Omigie raises five challenges to his conviction and
sentence. We affirm Omigie’s conviction, but we remand for the district
court to determine whether the condition of supervised release imposed in
his judgment is consistent with the court’s oral pronouncement at
sentencing.
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I.
From the early 2000s until his arrest in 2013, Cesar Alvarez-Barrera
(“Barrera”) ran a Houston-based drug-trafficking organization (“DTO”)
that imported large shipments of cocaine from Mexico. On crossing the
border, the cocaine was distributed to a network of stash houses in and
around Houston. Couriers employed by Barrera would then pick up bulk
loads of cocaine and deliver them to local dealers, who in turn would
distribute the drug to customers both inside and outside the state. The
proceeds generated by the scheme were carried by hand or “secreted in
hidden compartments and voids in motor vehicles” back across the border,
where they could be laundered and returned to general circulation.
A trafficking scheme of this magnitude and duration each day brings
fear of apprehension by law enforcement. In 2003, Barrera found a way to
assuage his fear when he met Appellant Christopher Omigie. Omigie is a
naturalized U.S. citizen originally from Nigeria, where he claims to have been
a “chief” or “king.” He held himself out to Barrera and other drug dealers
as “a person with supernatural powers” that included “the ability to divine
the future” and “the ability to ward off law enforcement detection of criminal
schemes.”
Omigie soon began working with Barrera, providing “supernatural
protection” for the DTO through such means as “read[ing] cards,”
cleansing conspirators with what he called “snake oil” (aptly named), selling
magic candles, and cutting slits into Barrera’s skin with a razor. In return,
Barrera paid Omigie somewhere between $250,000 and $300,000 over the
course of ten years. Barrera also paid for Omigie’s periodic flights to Nigeria
so that Omigie could “[r]epower [h]is energy.”
Eventually, Omigie became active in the day-to-day operation of the
DTO, demanding complete information about each cocaine deal before it
2
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happened and threatening to “crash” the organization when he was crossed.
On one occasion, Omigie instructed Barrera to withhold cocaine from one
dealer in favor of another. In another conversation, Barrera and Omigie
discussed a cocaine transaction that Omigie was “controlling.”
Ultimately, Omigie’s supernatural powers were no match for federal
authorities, who began investigating the DTO in the 2000s, making
numerous controlled buys and recording incriminating phone calls among
key players. In September 2013, Omigie and seven others were charged with
conspiring with intent to distribute cocaine and conspiring to launder drug
proceeds. The indictment included a notice of forfeiture, which provided that
should the defendants be convicted, they would forfeit to the Government
$100,000,000, “representing the amount of proceeds obtained as a result of
the” cocaine-trafficking conspiracy. Omigie’s court-appointed counsel
negotiated a plea agreement for a 48-month sentence. However, shortly
before that plea was to be entered, Omigie moved to substitute his counsel
for an attorney retained by his family and friends. The magistrate judge
granted the motion following a hearing, and Omigie and his new counsel
decided to proceed to trial.
The trial did not last long. The Government’s first witness was
Barrera, who testified to the various protective measures Omigie had
undertaken for the DTO, as well as Omigie’s role in the DTO’s operations. 1
When the court broke for lunch, Omigie reversed course and decided to plead
guilty to the cocaine-trafficking count. In exchange, the Government moved
to dismiss the money-laundering count. Following a plea hearing, Omigie was
sentenced to 168 months’ imprisonment—the bottom of his advisory
1
At the time of his testimony, Barrera was serving a twenty-year sentence for
cocaine distribution.
3
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Guidelines range—to be followed by five years of supervised release. The
district court also entered an order requiring Omigie to forfeit $250,000.
On appeal, Omigie raises five objections to his conviction and
sentence. 2 He contends that the district court erred by (1) failing to admonish
him of his statutory minimum sentence, thereby rendering his guilty plea
involuntary; (2) failing to observe certain procedural prerequisites to its
forfeiture order; (3) enhancing Omigie’s sentence on the ground that he was
a manager or supervisor of criminal activity; (4) denying Omigie a downward
adjustment for acceptance of responsibility; and (5) imposing a special
condition of supervised release in his written judgment that it had not orally
pronounced at sentencing.
II.
A.
Federal Rule of Criminal Procedure 11 “ensures that a guilty plea is
knowing and voluntary by requiring the district court to follow certain
procedures before accepting such a plea.” 3 Among those procedures, “the
court must inform the defendant of, and determine that the defendant
understands . . . any mandatory minimum penalty” attending his conviction. 4
Because Omigie did not raise a Rule 11 objection in the district court, we
review for plain error. 5 To prevail, Omigie must demonstrate (1) an error
2
Omigie did not appeal within fourteen days of the entry of judgment, as required
by Federal Rule of Criminal Procedure 4(b)(1)(A). However, the district court granted him
permission to file an out-of-time appeal.
3
United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002).
4
Fed. R. Crim. P. 11(b)(1)(I).
5
United States v. Brown, 328 F.3d 787, 789 (5th Cir. 2003); see United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
4
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(2) that is “clear or obvious” and that (3) “affected [his] substantial rights.” 6
A Rule 11 error affects a defendant’s substantial rights only if there is “a
reasonable probability that, but for the error, he would not have entered the
plea.” 7 If the first three prongs of plain-error review are satisfied, we may
exercise our discretion to correct the error only if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” 8
B.
Omigie’s cocaine-trafficking conviction carries a mandatory
minimum sentence of ten years’ imprisonment. 9 At Omigie’s change of plea
hearing, the district court stated:
I must advise you of the mandatory minimum penalty provided
by law, if any, and the maximum possible penalties that may be
imposed upon you. If I accept your plea of guilty, you could be
sentenced to a term of imprisonment of not less than 10 years
nor more than life . . . .
Omigie then affirmed that he “underst[ood] the range of punishment that
applie[d] in” his case.
Omigie now takes issue with the terms “if any” in the first sentence
of the court’s pronouncement and “could” in the second. He argues that this
conditional language “fail[ed] to convey the mandatory nature of the
minimum penalty.” Standing alone, the court’s admonishment might admit
some ambiguity. However, as in other cases where the district court’s
6
Puckett v. United States, 556 U.S. 129, 135 (2009).
7
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); see Broussard, 669
F.3d at 546.
8
Puckett, 556 U.S. at 135 (internal alterations omitted) (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
9
21 U.S.C. § 841(b)(1)(A).
5
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statements “could have been more artfully phrased,” we will look to the
entire record to determine whether there was plain error. 10
The record shows that Omigie was repeatedly notified of the ten-year
mandatory minimum sentence attending his cocaine-trafficking charge. The
Government’s penalty notice, which was attached to Omigie’s indictment,
reflected the mandatory minimum, as did two amendments to that notice.
Omigie was also orally advised of the mandatory minimum at his initial
appearance, where he confirmed that he understood the sentencing range.
Finally, Omigie did not object to the presentence investigation report’s
(“PSR”) statement that “[t]he minimum term of imprisonment is 10 years
and the maximum term is Life,” nor did he attempt to withdraw his plea after
reviewing the PSR.
In short, the record makes clear that Omigie was aware of his
sentencing exposure and would have pleaded guilty regardless of any error in
the district court’s admonishment. 11 Indeed, Omigie does not argue
otherwise; he asserts only a theoretical possibility that he may not have
understood the mandatory minimum. That assertion is inadequate to show
plain error. 12
10
United States v. Huey, 194 F. App’x 265, 266 (5th Cir. 2006) (unpublished) (per
curiam); see United States v. Regester, 203 F. App’x 684, 686 (5th Cir. 2006) (unpublished)
(per curiam).
11
See United States v. Carroll, 280 F. App’x 352, 353 (5th Cir. 2008) (unpublished)
(per curiam) (Where “the transcript of the rearraignment [and] the presentence report”
both correctly stated the mandatory minimum, the defendant “cannot show a reasonable
probability that, but for the district court’s failure to advise him of the mandatory minimum
penalty, he would not have pleaded guilty.”).
12
See Broussard, 669 F.3d at 546.
6
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III.
A.
Omigie next challenges the district court’s final order requiring him
to forfeit $250,000 as proceeds of his drug-trafficking activities. He argues
that the court violated Federal Rule of Criminal Procedure 32.2, which sets
forth the procedures a district court must follow before entering a judgment
of forfeiture.
Under Rule 32.2, the defendant’s indictment must include a notice
that the Government is seeking “forfeiture of property as part of any
sentence” ultimately imposed. 13 Then, after the defendant is convicted or
pleads guilty, the court must “determine what property is subject to
forfeiture.” 14 “If the government seeks a personal money judgment,” as it
did in this case, the court must also “determine the amount of money that
the defendant will be ordered to pay.” 15 Then, the court “must promptly”—
if possible, in advance of sentencing—“enter a preliminary order of
forfeiture setting forth the amount of [the] money judgment.” 16 Next, “[t]he
court must include the forfeiture when orally announcing the sentence or
must otherwise ensure that the defendant knows of the forfeiture at
sentencing.” 17 Finally, “[t]he court must also include the forfeiture order,
directly or by reference, in the judgment, but the court’s failure to do so may
be corrected at any time under Rule 36.” 18
13
Fed. R. Crim. P. 32.2(a).
14
Fed. R. Crim. P. 32.2(b)(1)(A).
15
Id.16
Fed. R. Crim. P. 32.2(b)(2)(A)–(B).
17
Fed. R. Crim. P. 32.2(b)(4)(B).
18
Id.7
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We generally review “the district court’s findings of fact under the
clearly erroneous standard, and the question of whether those facts
constitute legally proper forfeiture de novo.” 19 However, where a defendant
fails to object “[d]espite being on notice of the forfeiture and having the
opportunity to object,” we review for plain error. 20
B.
Omigie’s indictment included a forfeiture notice as required by Rule
32.2. However, the district court failed to comply with the remainder of the
Rule’s requirements: the court did not enter a preliminary order of forfeiture
and did not address forfeiture at Omigie’s sentencing hearing, despite the
Government having moved for a final order of forfeiture beforehand. In
addition, Omigie’s judgment did not mention forfeiture, and the final
forfeiture order was not entered until a week after sentencing. 21
Regardless, Omigie was on notice that the Government sought
forfeiture. As mentioned, his indictment included a forfeiture notice, and the
magistrate judge advised him at his initial appearance that the Government
was seeking forfeiture. Then, at his guilty plea hearing, Omigie acknowledged
that he had discussed his indictment with counsel and understood its
contents. At the same hearing, the court advised Omigie that it “may order
[him] to . . . forfeit certain property to the government,” though it did not
19
United States v. Juluke, 426 F.3d 323, 326 (5th Cir. 2005) (quoting United States
v. Marmolejo, 89 F.3d 1185, 1197 (5th Cir. 1996)).
20
United States v. Marquez, 685 F.3d 501, 510 (5th Cir. 2012).
21
The final order of forfeiture also contained a minor factual inaccuracy. It stated
that in his plea agreement, Omigie had “agreed that he had obtained” $250,000 “in
proceeds from the offense.” In fact, Omigie had pleaded guilty without benefit of a written
plea agreement. The misstatement likely stemmed from the fact that Omigie had initially
negotiated a plea agreement containing such an admission but subsequently opted to go to
trial.
8
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specify what property that might be. Finally, the Government filed its motion
for a final order of forfeiture on the morning of Omigie’s sentencing and
certified that defense counsel had received the filing. Under our precedent,
these steps were adequate to put Omigie on notice. 22 Because he failed to
object despite the opportunity to do so, we review for plain error.
The Government concedes the first two prongs of the plain-error test,
admitting that the district court’s failure to follow Rule 32.2 was “clear and
obvious” error. However, the Government contends Omigie cannot show
that the error affected his substantial rights. We agree. To satisfy the third
prong of plain-error review, Omigie must demonstrate “a reasonable
probability that any forfeiture imposed would have been less than”
$250,000. 23 Omigie makes no attempt to satisfy this burden, nor could he in
light of Barrera’s uncontroverted testimony that he paid Omigie between
$250,000 and $300,000 for his protective services. The forfeiture order must
stand in spite of the district court’s procedural shortcomings.
IV.
A.
Omigie argues that the district court erred by applying a three-level
aggravating-role adjustment for his position as a manager or supervisor of the
DTO. This role adjustment is proper where “the defendant was a manager
or supervisor (but not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise extensive.” 24
22
See United States v. Davalos, 810 F. App’x 268, 271–72 (5th Cir. 2020)
(unpublished) (per curiam); Marquez, 685 F.3d at 510 n.1.
23
Marquez, 685 F.3d at 510.
24
U.S.S.G. § 3B1.1(b). Defendants found to be organizers or leaders of criminal
activity are subject to a four-level upward adjustment. Id. § 3B1.1(a). Omigie’s PSR
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“Whether a defendant exercised an aggravating role . . . is a finding of
fact reviewed for clear error.” 25 A district court’s imposition of a leadership-
role adjustment “is not clearly erroneous if it is plausible in light of the record
as a whole.” 26 We will reverse only if, after reviewing the entire evidence, we
are “left with the definite and firm conviction that a mistake has been
committed.” 27
B.
Omigie does not challenge the number of participants in the cocaine-
trafficking scheme. Indeed, he admitted at his plea hearing that he worked
with six co-conspirators, while his PSR placed the number several times
higher. Instead, Omigie argues that the role adjustment was unwarranted
because he did not “exercise[] any control or decision-making authority
over” the DTO; his “co-defendants simply went to him for ‘witchcraft.’”
We disagree. Barrera’s testimony about Omigie’s position within the
organization provided ample support for the leadership-role adjustment. For
example, Barrera testified that Omigie required him, his buyers, and his
couriers to remain in contact with Omigie before, during, and after cocaine
transactions. 28 When business slowed down, Omigie threatened Barrera that
he must “do something” or Omigie would “crash” the entire enterprise.
recommended he receive this larger adjustment, but the district court determined at
sentencing that Omigie was “a supervisor/manager more than an organizer/leader.”
25
United States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015).
26
United States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013).
27
United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006) (quoting United States v.
Cabrera, 288 F.3d 163, 168 (5th Cir. 2002)).
28
Another co-conspirator, Ricky St. Julien, likewise testified at a pretrial hearing
that he was required to report to Omigie for a meeting before each drug transaction so that
Omigie could perform certain rituals to prevent detection by authorities.
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Omigie made similar threats to others when they disobeyed him. In one
recorded phone conversation, Omigie referred to himself as “the boss” of
the DTO, a characterization with which Barrera agreed. On another
occasion, Omigie directed Barrera to withhold cocaine from one dealer and
instead provide it to another dealer who needed a “jump start.”
All this testimony supports the inference that Barrera and others acted
at Omigie’s direction, apparently under the belief that Omigie could control
the fate of their transactions. Given Omigie’s directorial power, the district
court did not clearly err in imposing a leadership-role adjustment. 29
V.
A.
Omigie next argues that the district court erred by denying him an
adjustment for acceptance of responsibility despite the fact that he pleaded
guilty. Section 3E1.1(a) of the Sentencing Guidelines provides for a two-
offense-level downward adjustment “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense.” The accompanying
commentary makes clear that a defendant “is not entitled to an adjustment”
simply by virtue of pleading guilty. 30 Other factors, including “the timeliness
of the defendant’s conduct in manifesting the acceptance of responsibility,”
may outweigh a defendant’s plea. 31
29
See Zuniga, 720 F.3d at 592.
30
U.S.S.G. § 3E1.1 cmt. n.3; see United States v. Pierce, 237 F.3d 693, 694 (5th Cir.
2001).
31
U.S.S.G. § 3E1.1 cmt. n.1(H).
11
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The district court “is in a unique position to evaluate a defendant’s
acceptance of responsibility,” 32 and its refusal to award a § 3E1.1(a)
reduction “is reviewed under a standard even more deferential than a pure
clearly erroneous standard,” 33 that “should not be disturbed unless it is
without foundation.” 34
B.
The district court denied Omigie a § 3E1.1(a) adjustment primarily
because he did not plead guilty until after the court had conducted “an
extended pretrial hearing . . . as to whether he could be referred to as a ‘witch
doctor,’” voir dire, and half a day of trial testimony. 35 We have “routinely
upheld the denial of a reduction for acceptance of responsibility when a
defendant waits until the eve of trial to enter a guilty plea.” 36 In this case,
Omigie made the Government play its hand in open court before changing
his plea. This tactical move “is more than enough to warrant” denial of an
acceptance adjustment. 37
32
United States v. Cabrera, 288 F.3d 163, 175 (5th Cir. 2002) (per curiam) (quoting
U.S.S.G. § 3E1.1 cmt. n.5).
33
United States v. Najera, 915 F.3d 997, 1002 (5th Cir. 2019) (quoting United States
v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)).
34
Maldonado, 42 F.3d at 913 (internal quotation marks omitted).
35
The court also noted that even at sentencing, Omigie was still “trying to
minimize his role” in the conspiracy.
36
United States v. Taylor, 331 F. App’x 287, 288 (5th Cir. 2009) (unpublished) (per
curiam) (citing United States v. Diaz, 39 F.3d 568, 570 (5th Cir. 1994), and United States v.
Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994)).
37
United States v. Moreno, 760 F. App’x 266, 272 (5th Cir. 2019) (unpublished) (per
curiam).
12
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VI.
A.
Finally, Omigie contends that the district court erred by imposing a
special condition of supervised release in his written judgment that it had not
orally pronounced at sentencing. The district court’s obligation to orally
pronounce its sentence is grounded in the defendant’s right to be present at
sentencing, which in turn is derived from the Fifth Amendment’s Due
Process Clause. 38 In addition to custodial sentences, the oral-pronouncement
requirement applies to discretionary conditions of supervised release—that
is, all conditions not made mandatory by 18 U.S.C. § 3583(d). 39 However, as
our en banc Court recently made clear in United States v. Diggles, the district
court need not recite each non-mandatory condition of supervised release
word for word at sentencing. 40 It may instead orally adopt a document
(typically a PSR) that lists the proposed conditions, so long as “the defendant
had an opportunity to review it with counsel” and the oral adoption is made
“when the defendant is in court.” 41
Where there is a conflict between the court’s oral pronouncement and
the written judgment, the oral pronouncement controls, 42 and “the
appropriate remedy is remand to the district court to amend the written
judgment to conform to the oral sentence.” 43 Our standard of review
depends on whether the defendant had notice of the proposed conditions and
38
See United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam).
39
United States v. Diggles, 957 F.3d 551, 563 (5th Cir. 2020) (en banc).
40
Id. at 561.
41
Id. at 561 n.5.
42
United States v. Mireles, 471 F.3d 551, 557 (5th Cir. 2006).
43
Id.13
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an opportunity to object before the district court. If he had no opportunity to
object, we review for abuse of discretion; if he had the opportunity but failed
to object, plain error review applies. 44
B.
Omigie’s judgment contains one special condition of supervised
release: He must “provide the probation officer with access to any requested
financial information for purposes of monitoring [his] sources of income.”
Because this condition is not mandatory under 18 U.S.C. § 3583(d), it must
be orally pronounced. 45 Omigie contends the oral-pronouncement
requirement was not satisfied because the district court did not recite the
condition at sentencing. Rather, it orally adopted Omigie’s PSR and stated
that he must “comply with the mandatory and special conditions set forth in
[his] presentence report.”
As Diggles made clear, the district court’s oral adoption of a PSR
containing proposed supervised-release conditions may satisfy the oral-
pronouncement requirement. 46 In this case, however, the financial-reporting
condition did not appear in Omigie’s PSR, but was instead listed in a separate
sentencing recommendation. Although that recommendation was filed
contemporaneously with the PSR, we cannot be certain that it was shared
with the defense. 47 Because it is unclear whether Omigie and his counsel were
44
Diggles, 957 F.3d at 559–60; see United States v. Huor, 852 F.3d 392, 397–98 (5th
Cir. 2017).
45
See Diggles, 957 F.3d at 563.
46
See id. at 560–61, 561 n.5.
47
The PSR and sentencing recommendation were filed into the record under the
same document number, indicating that defense counsel likely received the
recommendation along with the PSR. However, the Diggles Court noted that “district
courts differ on whether they disclose [sentencing recommendations] to the parties” along
with the defendant’s PSR. Id. at 555 n.1. The Court also made clear that “conditions cannot
14
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able to review the financial-reporting condition ahead of sentencing, we
remand for the district court to determine whether the sentencing
recommendation was disclosed to Omigie as part of his PSR. If it was not, the
court must conform Omigie’s written judgment to its oral pronouncement by
removing the financial-reporting condition from the judgment.
VII.
For the foregoing reasons, Omigie’s conviction, custodial sentence,
and forfeiture order are affirmed. We remand to the district court for the
limited purpose of ensuring that Omigie’s condition of supervised release is
consistent with the court’s oral pronouncement at sentencing.
be incorporated by reference when they are listed only in a [sentencing] recommendation
that has not been disclosed to the defendant.” Id.
15