The opinion
Case: 09-20636 Document: 00511150125 Page: 1 Date Filed: 06/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2010
No. 09-20636
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KOLEOWO ADEYEMI ADESOYE, also known as Koleowo Adeyemi Okuwa,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-735-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Koleowo Adeyemi Adesoye appeals his guilty plea conviction and sentence
for five counts of bank fraud and one count of aggravated identity theft. Adesoye
argues that (1) the Government breached the proffer agreement executed by the
parties; (2) the district court erred by using proffered information to enhance his
sentence; (3) because the Government breached the proffer agreement, he should
be allowed to withdraw his guilty plea; (4) the district court erred in denying him
a three-level reduction in his offense level for “acceptance of responsibility;” and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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(5) the factual basis to which he pleaded guilty was insufficient to convict him
of aggravated identity theft because the Government did not prove that he knew
that “the means of identification at issue belonged to another person.”
Breach of the proffer agreement
Adesoye’s argument that the Government breached the proffer agreement
because it used proffered information regarding intended loss amounts to
increase his sentence, pursuant to U.S.S.G. § 2B1.1(b)(1)(K), is without merit.
The proffer agreement provides that the Government will not use proffered
information directly against Adesoye in any criminal case emerging from the
investigation and that it will comply with application note 1 of § 1B1.8, which
prohibits the use of proffered information to determine Adesoye’s guidelines
range.
Because Adesoye did not raise a claim in the district court that the
Government breached the proffer agreement, our review is for plain error.
United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). To demonstrate plain
error, Adesoye must make a four-pronged showing: 1) there must be a deviation
from a legal rule that was not intentionally abandoned or affirmatively waived
by the appellant; 2) the legal error was clear or obvious, i.e., not subject to
reasonable dispute; 3) the error affected his substantial rights; and 4) if the first
three prongs are satisfied, this court has the discretion to correct the error only
if it seriously affects “the fairness, integrity or public reputation of judicial
proceedings.” See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Adesoye must prove by a preponderance of the evidence that the
Government breached the agreement. See United States v. Gonzalez, 309 F.3d
882, 886 (5th Cir. 2002) (breach of a plea agreement); United States v. Cantu,
185 F.3d 298, 302 (5th Cir. 1999) (breach of a cooperation agreement providing
use immunity for defendant who provided incriminating evidence regarding
others in exchange for a lesser sentence); United States v. Castaneda, 162 F.3d
832, 836 (5th Cir. 1998) (breach of a nonprosecution agreement).
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Section 1B1.8(a) provides that when a defendant agrees to provide
information concerning the unlawful activities of others, and “as part of that
cooperation agreement the [G]overnment agrees that self-incriminating
information provided pursuant to the agreement will not be used against the
defendant, then such information shall not be used in determining the applicable
guideline range, except to the extent provided in the agreement.” See United
States v. Anderson, 70 F.3d 353, 355 (5th Cir. 1995); United States v. Marsh, 963
F.2d 72, 74 (5th Cir. 1992).
Adesoye cannot establish plain error because he has failed to prove by a
preponderance of the evidence that the Government breached the proffer
agreement. That is, because the proffer agreement does not contain a provision
that requires Adesoye to provide information regarding his co-conspirators, he
has not shown that § 1B1.8 necessarily applies to the proffer agreement. See
§ 1B1.8, comment. (n.6). Moreover, he has failed to prove that he provided the
loss information that was used to determine his guidelines range during a
debriefing session that was held subject to the proffer agreement. See
§ 1B1.8(a); see also United States v. Charon, 442 F.3d 881, 890 (5th Cir. 2006).
Finally, Adesoye has not shown that his substantial rights have been affected
because he only alleges rather than shows that his sentence would be
significantly reduced if the disputed loss information was not used to determine
his guidelines range; thus, he has not shown a reasonable probability that, but
for the alleged error, he would have received a lesser sentence. United States v.
Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
The district court’s reliance on the intended loss information
Relatedly, Adesoye asserts that the district court impermissibly used the
intended loss information that he provided during debriefing to enhance his
sentence. Because Adesoye did not object on this basis in the district court, we
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review for plain error. Puckett, 129 S. Ct. at 1429. For the same reasons given
above, Adesoye has failed to overcome plain-error review of this issue.
Withdrawal of guilty plea
Next, Adesoye argues that he should be allowed to withdraw his guilty
plea because the Government breached the proffer agreement. Because Adesoye
did not attempt to withdraw his guilty plea in the district court, review is for
plain error. United States v. Vonn, 535 U.S. 55, 58-59 (2002). To prevail,
Adesoye “‘must show a reasonable probability that, but for the error, he would
not have entered the plea.’” United States v. Castro-Trevino, 464 F.3d 536, 541
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)).
Adesoye cannot carry his burden because, as previously discussed, he has
not shown that the Government breached the proffer agreement. Additionally,
Adesoye has not shown “a reasonable probability that, but for the error, he
would not have entered the plea.” Castro-Trevino, 464 F.3d at 541. Thus,
Adesoye’s request to withdraw his guilty plea is denied.
“Acceptance of responsibility”
Adesoye argues that he should have been awarded a three-level
adjustment for “acceptance of responsibility” because he accepted responsibility
for his offense and debriefed truthfully. Following United States v. Booker, 543
U.S. 220 (2005), sentences are reviewed for reasonableness in light of the
sentencing factors in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20
(5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), this
court must determine whether the sentence imposed is procedurally sound,
including whether the calculation of the advisory guidelines range is correct, and
whether the sentence imposed is substantively reasonable. Review is for an
abuse of discretion. Gall, 552 U.S. at 51. This court reviews the district court’s
interpretation and application of the Sentencing Guidelines de novo. United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
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Section 3E1.1(a) provides “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense, decrease the offense level by 2 levels.”
§ 3E1.1(a). The defendant bears the burden of demonstrating that he is entitled
to a reduction under § 3E1.1. United States v. Perez, 915 F.2d 947, 950 (5th Cir.
1990). Deferring to the district court’s unique position, this court examines the
denial of a reduction for acceptance of responsibility “under a standard of review
even more deferential than a pure ‘clearly erroneous’ standard.” United States
v. Outlaw, 319 F.3d 701, 705 (5th Cir. 2003) (internal quotation and citation
omitted). This court “will affirm a sentencing court’s decision not to award a
reduction under U.S.S.G. § 3E1.1 unless it is without foundation.” United States
v. Solis, 299 F.3d 420, 458 (5th Cir. 2002) (internal quotation marks and citation
omitted).
The district court’s finding that Adesoye falsely denied and frivolously
contested his relevant conduct is not clearly erroneous, and its denial of a
reduction for acceptance of responsibility is not without foundation. See Solis,
299 F.3d at 458. Adesoye accepted responsibility for the five fraudulent
transactions for which he was indicted; however, he attempted to minimize his
conduct by denying that he fraudulently accessed bank accounts at other times,
denying that he had possession of thousands of pieces of stolen mail, and
denying “relevant conduct,” and those denials are inconsistent with the
voluminous evidence found in his house. Therefore, the district court did not
clearly err in denying him a reduction in his offense level for acceptance of
responsibility. See United States v. Medina-Anicacio, 325 F.3d 638, 648 (5th Cir.
2003).
Factual basis
Adesoye’s argument that the factual basis was insufficient to support his
guilty plea is without merit. He specifically argues that the Government failed
to prove that he knew that the names, dates of birth, and social security
numbers of his victims belonged to real persons. Adesoye failed to object in the
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district court on these grounds. Therefore, our review is limited to plain error.
See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc).
Before accepting a guilty plea, the district court must determine that the
conduct admitted by the defendant “is sufficient as a matter of law to constitute
a violation of the statute.” Id. at 314 (emphasis omitted); F ED. R. C RIM.
P. 11(b)(3). This court compares the defendant’s admissions with the elements
of the offense. Marek, 238 F.3d at 314-15. “[I]nferences may be ‘fairly drawn’
from the evidence adduced after the acceptance of a guilty plea but before or at
sentencing.” United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. ), cert.
denied, 129 S. Ct. 437 (2008).
To establish aggravated identity theft, the Government must prove that
Adesoye (1) knowingly used (2) the “means of identification” belonging to another
person (3) without lawful authority (4) during and in relation to a violation of
bank fraud. See § 1028A; United States v. Stephens, 571 F.3d 401, 404-05 (5th
Cir. 2009) (citing Flores-Figueroa, 129 S. Ct. at 1888).
While nothing in the record explicitly states that Adesoye knew that his
victims were real persons, the evidence was sufficient for the district court to
fairly draw that inference. See Hildenbrand, 527 F.3d at 475. Adesoye admitted
in the factual basis that he “used without lawful authority a means of
identification of another person.” Moreover, he admitted that he “accessed and
changed the contact and other important information of numerous Schwab
customer accounts by using the name, Social Security number, and birth dates
of the account holders.” He admitted that he fraudulently wired money from the
victims’ accounts into other accounts by impersonating the victim. Finally,
Adesoye admitted that he knew that the social security numbers were “somebody
else’s” and that he “used the stolen identities in order to execute the bank fraud
in each of these five instances.” Because it can be reasonably inferred that
Adesoye knew he unlawfully possessed or used the means of identification of real
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persons, he fails to show that the district court plainly erred. See Marek, 238
F.3d 310, 314-15; Hildenbrand, 527 F.3d at 475.
Accordingly, Adesoye’s conviction and sentence are AFFIRMED. Adesoye’s
motion for leave to supplement the record with the proffer agreement is
GRANTED.
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