United States v. Arsuntae Abayomi

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1171n.06
No. 11-4393 FILED
Nov 13, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
ARSUNTAE K. ABAYOMI, )
)
Defendant-Appellant. )
Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
PER CURIAM. Arsuntae K. Abayomi pleaded guilty to one count of being a felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). On November 23, 2011, the district court
sentenced Abayomi to forty-six months of imprisonment and three years of supervised release.
In accordance with Anders v. California, 386 U.S. 738, 744 (1967), Abayomi’s attorney has
filed a motion to withdraw and a brief indicating that there are no colorable issues to appeal. Counsel
has identified several potential points for appeal by discussing whether Abayomi’s plea was valid and
whether his sentence was reasonable. Abayomi did not file a timely response to counsel’s motion.
Moreover, an independent examination of the proceedings shows that his attorney made an adequate
review of the record and that there is no issue that would support a viable direct appeal. See id.
Abayomi signed a plea agreement wherein he agreed to waive his right to an appeal. The
district court confirmed Abayomi’s understanding of the plea agreement, including the waiver of his
appellate rights. Moreover, the sentence that he received did not exceed the applicable sentencing
guidelines range or the statutory maximum for his conviction. See 18 U.S.C. § 924(a)(2). Thus,
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Abayomi has waived his right to appeal. See United States v. Robinson, 455 F.3d 602, 610 (6th Cir.
2006); United States v. McGilvery, 403 F.3d 361, 362–63 (6th Cir. 2005). There are no apparent
grounds for challenging Abayomi’s conviction or sentence on direct appeal.
Before it accepted Abayomi’s guilty plea, the district court established that he understood his
rights, the nature of the charges, and the consequences of pleading guilty. Abayomi indicated that the
decision to plead guilty was voluntary, and he acknowledged a sufficient factual basis for his plea.
Abayomi was represented by counsel and counsel has not made any attempt to withdraw his plea.
Under these circumstances, Abayomi’s guilty plea and conviction are valid.
We review the district court’s sentencing decisions for reasonableness. Gall v. United States,
552 U.S. 38, 46 (2007). Thus, we “first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. at 51.
“Assuming that the district court’s sentencing decision is procedurally sound, the appellate court
should then consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. A sentence is credited with a rebuttable presumption of
reasonableness if it falls within the applicable sentencing guidelines range. United States v. Vonner,
516 F.3d 382, 389 (6th Cir. 2008) (en banc).
Abayomi’s presentence report indicated that he had an advisory sentencing guidelines range
of thirty-seven to forty-six months of imprisonment. Abayomi did not object to the report. Therefore,
he has forfeited any objections that he might have in the absence of plain error that affects his
substantial rights. See id. at 385–86. Further, there is no plain error in this case.
The forty-six-month sentence that Abayomi received carries a rebuttable presumption of
reasonableness because it fell within the applicable sentencing guidelines range. See id. at 389–90.
The district court also considered the other sentencing factors that are listed in section 3553(a),
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including the history and characteristics of the defendant, the circumstances of the offense, and the
need for rehabilitative treatment. Thus, Abayomi does not have a viable sentencing issue to raise on
direct appeal.
Counsel’s motion to withdraw is granted and the district court’s judgment is affirmed.