United States v. Olufemi Kotun

FILED
NOT FOR PUBLICATION
JUL 03 2012
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50115
Plaintiff - Appellee, D.C. No. 2:08-cr-00879-DSF-1
v.
MEMORANDUM *
OLUFEMI KAREEM KOTUN, AKA
G.S.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted June 6, 2012
Pasadena, California
Before: KOZINSKI, Chief Judge, TROTT and THOMAS, Circuit Judges.
1. Federal law prohibits taking bank property “by force and violence, or by
intimidation, . . . from the person or presence of another.” 18 U.S.C. § 2113(a).
The district court’s response to Jury Note Number 3 tracks this language, but
Kotun claims it misstates the law because it allows conviction “even if the person
from whom the money is taken is a co-conspirator.” But section 2113(a) prohibits
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2
taking property by force from “another,” a term broad enough to include a
co-conspirator. See United States v. Vought, 69 F.3d 1498, 1502 (9th Cir. 1995)
(co-conspirators can be victims, justifying enhancement under Sentencing
Guidelines § 3A1.3).
2. The testimony Kotun challenges was probative of the witnesses’
credibility on a key issue at trial and carried little risk of unfair prejudice. This
isn’t “the rare exception when a district court’s decision to admit evidence under
Rule 403 constitutes plain error.” United States v. Rizk, 660 F.3d 1125, 1132 (9th
Cir. 2011) (internal quotation marks omitted). For the same reasons, the district
court didn’t abuse its discretion in rejecting Kotun’s prosecutorial misconduct
claim. See United States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir.
2012).
3. Kotun claims the district court procedurally erred at sentencing by failing
to consider mitigating evidence he presented. The record shows that the court
considered Kotun’s evidence but didn’t find it “particularly mitigating.” As Kotun
concedes, the court “was free to say that it wasn’t swayed by the information that
the defense had presented.”
Kotun also claims the district court erred by giving him a longer sentence
than it gave Randall, his co-conspirator. The court was required to consider “the
Page 3
need to avoid unwarranted sentence disparities” between similarly situated
defendants. 18 U.S.C. § 3553(a)(6). But Randall pleaded guilty and testified
against Kotun, so they weren’t similarly situated for sentencing purposes.
Moreover, “Congress’s primary goal in enacting § 3553(a)(6) was to promote
national uniformity in sentencing . . . ,” United States v. Saeteurn, 504 F.3d 1175,
1181 (9th Cir. 2007) (emphasis added and internal quotation marks omitted), so the
district court didn’t err by considering the sentences imposed on similarly situated
defendants nationwide.
Nor did the district court abuse its discretion by imposing a sentence greater
than the national means and median cited by Kotun. The court imposed a sentence
at the bottom of the applicable Sentencing Guidelines range. “‘[A]voidance of
unwarranted disparities was clearly considered by the Sentencing Commission
when setting the Sentencing Guidelines ranges. Since the district judge correctly
calculated and carefully reviewed the Guidelines range, he necessarily gave
significant weight and consideration to the need to avoid unwarranted disparities.’”
United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir. 2010) (alteration in
original) (quoting Gall v. United States, 552 U.S. 38, 54 (2007)).
AFFIRMED.