United States v. Sobitan, Babajide

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 3, 2006*
Decided November 21, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1694
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 CR 450
BABAJIDE SOBITAN,
Defendant-Appellant. John W. Darrah,
Judge.
ORDER
Babajide Sobitan was convicted of attempting to reenter the United States
without authorization after having been deported, 8 U.S.C. § 1326(a). Over
Sobitan’s objection and in contradiction of United States v. Booker, 125 S. Ct. 738(2005), the district court sentenced him as though the sentencing guidelines were
mandatory. The district court imposed a sentence of 97 months’ imprisonment, a
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-1694 Page 2
sentence at the high end of the applicable range. We remanded the case for
resentencing and the district court imposed an identical sentence. Sobitan has
appealed that sentence, but his counsel filed a brief under Anders v. California, 386
U.S. 738 (1967), and contends that the appeal should be dismissed because Sobitan
has no non-frivolous arguments. Sobitan has responded to counsel’s brief. See Cir.
R. 51(b). Accordingly, we review only the potential issues identified in counsel's
brief and Sobitan's response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th
Cir. 2002).
Counsel contends that any argument posed by Sobitan concerning the
reasonableness of his sentence would be frivolous. First, he points out that the
district court correctly calculated Sobitan’s guidelines range, and 97 months’
imprisonment, although at the high end of the range, is still presumptively
reasonable under United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
That presumption may be rebutted by a showing that the factors outlined in 18
U.S.C. § 3553 compelled a lower sentence. See United States v. Lange, 445 F.3d
983, 987 (7th Cir. 2006). Counsel speculates that Sobitan may argue that the fact
that his family has struggled financially and emotionally since his incarceration
compelled a lower sentence. But the district court considered Sobitan’s family
circumstances and concluded that a sentence at the high end of the range was
necessary to reflect the seriousness of his crime and his disregard for the
immigration laws. Neither counsel nor Sobitan identifies any other factor that
would have compelled a lower sentence.
Next, the district court added a two-level adjustment to Sobitan’s guideline
calculations for obstruction of justice because he used a false name to reenter the
country and refused to disclose financial information to the probation officer. In his
response, Sobitan contends that he could present an argument that the district
court incorrectly added that adjustment, but we disagree. The district court based
that adjustment on adequate evidence on the record. Absent clear error, we will not
overturn a district court’s factual finding that an obstruction of justice adjustment
is warranted and any argument otherwise would be unsuccessful. See United
States v. Warren, 454 F.3d 752, 762 (7th Cir. 2006).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.