United States v. Hamzat, Akanni

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 97-1987, 97-2541, 98-3839

United States of America,

Plaintiff-Appellee,

v.

Akanni Hamzat, et al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 95 CR 523--Harry D. Leinenweber, Judge.

Argued June 9, 1999 --Decided June 26, 2000

Before Posner, Chief Judge, and Bauer and

Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge. Akanni

Hamzat, Adetoro Adeniji, and Sunny Emezuo

were involved in a major way during the

early 1990s with trafficking in heroin

between Nigeria, Thailand, and the United

States. Led by Omobola Adegbite (known as

"Bola"), a woman who lived in

Merrillville, Indiana, the ring involved

nearly twenty people.

Hamzat, Adeniji, and Emezuo, the three

defendants before us in these appeals,

worked for Bola in various capacities.

Hamzat, who met Bola when he was dating

her sister, was a courier. On Bola’s

instructions and over the course of

multiple deliveries, he personally

transported 6.8 kilograms of heroin. (The

entire conspiracy involved 60 kilograms.)

Hamzat also assisted Bola in conveying

payments by wire transfer to Bola’s

overseas suppliers. She paid him on a

per-transaction basis, rather than in

some way tied to the drug profits. Hamzat

pleaded guilty under a plea agreement to

one count of conspiracy to distribute

heroin, in violation of 21 U.S.C. sec.

846. He was sentenced to 97 months in

prison and five years’ supervised

release.

After meeting Bola at a birthday party

for Bola’s twins, Adeniji was recruited

to serve as a "go-between" for Bola and

Adeniji’s brother-in-law, a drug dealer.

Between 1993 and 1995, she repeatedly

purchased heroin from Bola in quantities

of at least 100 grams, which she then

gave to her brother-in-law. Sometimes she

purchased on credit. Adeniji chose to

plead not guilty and go to trial; the

result was convictions on charges of

conspiracy to distribute heroin, 21

U.S.C. sec. 846, use of the telephone to

facilitate distribution of heroin, 21

U.S.C. sec. 843(b), and possession with

intent to distribute heroin, 21 U.S.C.

sec. 841(a)(1). Her sentence was for 121

months in prison, a fine of $5,000, and

five years’ supervised release.

Emezuo was one of Bola’s Bangkok-based

suppliers. He helped another supplier,

Mutitat Titilola Olubi ("Titi") procure

heroin for shipment to the United States,

which they packaged and hid in luggage to

avoid detection. He was paid in several

ways: he invested in portions of the

heroin shipments and received a balance

of the proceeds, he accepted from Bola an

expensive watch and a 1995 Acura, and he

handled wire transfers of U.S. currency

that he knew constituted payment for

heroin. After extensive negotiations, he

was unable to obtain a plea agreement. On

the day trial was to begin, he entered a

blind plea of guilty to one count of

conspiracy to possess with intent to

deliver, in violation of 21 U.S.C. sec.

846, and received a sentence of 145

months in prison, a fine of $2,500, plus,

once again, five years’ supervised

release.

Hamzat and Adeniji appeal various

aspects of their sentences. Emezuo’s

appellate attorney has filed an Anders

brief and asked to withdraw. Responding

to the Anders brief, Emezuo asks us to

find that his trial counsel was

ineffective and that this ineffectiveness

had a negative effect on his sentence.

A. Akanni Hamzat

1. Minor or Minimal Role in the

Offense.

Hamzat first argues that his

insignificant role in the offense

entitles him to a reduction in his

offense level under U.S.S.G. sec. 3B1.2.

He characterizes himself as a mere

"errand-runner" who made deliveries as

ordered by Bola, with no decision-making

role and no connection between his own

earnings and the success of the

conspiracy. A determination of the

defendant’s role in the offense is

"heavily dependent upon the facts of the

particular case," U.S.S.G. sec. 3B1.2

Background Note, and we accordingly

review the district court’s findings for

clear error. United States v. Nobles, 69

F.3d 172, 189-90 (7th Cir. 1995).

Section 3B1.2 provides for a four-level

reduction if the defendant can show that

he was a "minimal participant" in the

offense, which is defined as someone

"plainly among the least culpable of

those involved in the conduct of a

group." U.S.S.G. sec. 3B1.2, Application

Note 1. Section 3B1.2 allows a two-level

reduction if the defendant can show that

he was a "minor participant" in his

offense, "less culpable than most other

participants." U.S.S.G. sec. 3B1.2,

Application Note 3. A three-level

reduction is allowed if the defendant

falls between a minor and minimal

participant. To receive an offense level

reduction under sec. 3B1.2, a defendant

must demonstrate she was "substantially

less culpable than the conspiracy’s other

participants." United States v. Soto, 48

F.3d 1415, 1425 (7th Cir. 1995), quoting

United States v. DePriest, 6 F.3d 1201,

1214 (7th Cir. 1993).

Hamzat claims that he played a minor

role because he was charged with only the

6.8 kilograms he actually delivered (and

not the 60 kilograms attributable to the

conspiracy). Unfortunately for him, this

fact virtually dooms his effort to

receive the downward adjustment he seeks.

This circuit follows the rule that where

a defendant is sentenced only for the

amount of drugs he handled, he is not

entitled to a sec. 3B1.2 reduction.

United States v. Burnett, 66 F.3d 137,

140 (7th Cir. 1995). "When a courier is

held accountable for only the amounts he

carries, he plays a significant rather

than a minor role in that offense." Id.;

see also United States v. Cobblah, 118

F.3d 549, 552 (7th Cir. 1997); United

States v. Uriostegui-Estrada, 86 F.3d 87,

90 (7th Cir. 1996); United States v.

Lampkins, 47 F.3d 175, 181 & n.3 (7th

Cir. 1995).

We are aware, of course, that not all

circuits have embraced our approach to

mitigating role reductions. See, e.g.,

United States v. Isaza-Zapata, 148 F.3d

236, 241 (3d Cir. 1998) (rejecting the

approach taken in Burnett and Lampkins);

United States v. Snoddy, 139 F.3d 1224,

1231 (8th Cir. 1998); United States v.

Demers, 13 F.3d 1381, 1383-84 (9th Cir.

1994). On the other hand, the Burnett

approach has other adherents. See United

States v. Rodriguez de Varon, 175 F.3d

930, 941-44 (11th Cir. 1999) (en banc),

cert. denied 120 S. Ct. 424 (1999) (No.

99-6150); United States v. James, 157

F.3d 1218, 1220 (10th Cir. 1998); United

States v. Marmolejo, 106 F.3d 1213, 1217

(5th Cir. 1997); United States v. Lewis,

93 F.3d 1075, 1085 (2d Cir. 1996); United

States v. Olibrices, 979 F.2d 1557, 1560-

61 (D.C. Cir. 1992).

The circuits that have rejected our mode

of analysis take the position that the

Guidelines require the district court to

"examine all relevant conduct, not merely

the defendant’s, in assessing his

relative culpability." Isaza-Zapata, 148

F.3d at 241. The minor or minimal

participant reduction then operates with

reference to that much greater starting

point. Here, the relevant conduct was

arguably 60 kilograms, which yields an

offense level of 38 for someone like

Hamzat with a Criminal History Category

of I. Unadjusted, the sentencing range

for such a person is 235-293 months, but

even with a 4-level downward adjustment

to a level 34, the range is still 151-188

months, considerably more than the 97

months Hamzat received. Thus, it is clear

that some defendants would be far worse

off under the rule adopted by some of our

sister circuits. Our approach simply

takes a strict view of the offense

charged and the "reasonable

foreseeability" of other activity, but

then holds the defendant fully

responsible for what he or she actually

did. We think this is a defensible

reading of the Guidelines, and we are not

inclined to change it here.

Second, Hamzat argues that he was a mere

"errand-runner" who made deliveries under

the order of Adegbite. Even if Hamzat was

"just" a courier, we have noted before

that couriers play an important role in

any drug distribution scheme and

therefore are not automatically entitled

to a mitigating role reduction. United

States v. Osborne, 931 F.2d 1139, 1158

(7th Cir. 1991), quoting United States v.

Buenrostro, 868 F.2d 135, 138 (5th Cir.

1989). See also Uriostegui-Estrada, 86

F.3d at 89-90. Hamzat repeatedly did jobs

for Bola, not only carrying drugs but

assisting her with wire transfers of drug

money. Given the extent of his

involvement, the district court properly

denied Hamzat a mitigating role

reduction.

2. Acceptance of Responsibility.

Hamzat received a two-level reduction

for acceptance of responsibility under

U.S.S.G. sec. 3E1.1(a). Not content with

that, he urges here that he should have

received the additional one-level

reduction possible under sec. 3E1.1(b).

The extra level can be awarded if the

defendant qualifies for the sec. 3E1.1(a)

reduction, the defendant’s offense level

is 16 or greater, and the defendant

either provided complete information to

the government in a timely fashion or

alerted the government in time to his

intention to enter a plea of guilty, so

that the prosecution and court could save

their own resources.

The district court concluded that Hamzat

waited too long to enter his guilty plea

to warrant the additional reduction. This

finding (a quintessential question of

judgment for the court) was not clearly

erroneous. Hamzat did not enter his plea

until three days after the original trial

date, and one week before the rescheduled

date. He has attempted to excuse the

last-minute nature of the plea by arguing

that he delayed only because his lawyers

were trying to work out the best deal

possible. The government had known for

some time that he wanted to plead guilty,

and he sees no reason why he should be

penalized for hard negotiations. Further

more, he suggests, the government was not

prejudiced by the last-minute nature of

his plea, because it had to prepare to

try his co-defendants anyway.

The district court was correct to reject

this line of argument. For starters,

Hamzat in fact did not make his intention

to plead known right away: approximately

one year passed between his arrest and

his plea. He decided to plead guilty only

after his original trial date had come

and gone. We have previously held that a

defendant who waits to plead guilty until

the "brink of trial" is not entitled to a

reduction, United States v. Covarrubias,

65 F.3d 1362, 1367 (7th Cir. 1995);

surely, therefore, waiting until after

the original trial date is not "at a

sufficiently early point in the process

so that the government may avoid

preparing for trial and the court may

schedule its calender efficiently."

U.S.S.G. sec. 3E1.1, Application Note 6.

We find equally unpersuasive Hamzat’s

argument that the government was not

prejudiced by his delay. True, whatever

Hamzat did, the government had to prepare

to try his co-defendants. Nonetheless,

the evidence and case against Hamzat was

not identical to that presented against

his co-defendants: the government was

forced to prepare specifically for

Hamzat’s trial.

Last, we see no merit in the idea that

an untimely plea can be excused for

purposes of sec. 3E1.1(b) whenever the

defendant holds out for a better deal.

The cases upon which Hamzat relies do not

so hold; instead, they stand for the

quite different proposition that the

court may properly make the additional

reduction available to a defendant who

admits factual guilt in a timely manner

but challenges the government’s position

on legal grounds. See United States v.

Smith, 106 F.3d 350, 352 (11th Cir.

1997); United States v. McConaghy, 23

F.3d 351, 353-54 (11th Cir. 1994). Here,

Hamzat delayed admitting factual guilt

and, as a result, lost the sec. 3E1.1(b)

reduction. This was nothing more or less

than a strategic decision that turned out

badly. That he now regrets his choice

does not turn the district court’s denial

of the additional acceptance of

responsibility reduction into an error.

B. Adetoro Adeniji

1. Drug Quantity Calculation.

The district court, adopting the

presentencing report’s recommendation,

attributed slightly less than three kilo

grams of heroin to Adeniji. Adeniji

argues that the evidence supports only

750 grams. The district court’s

calculation of the quantity of drugs

involved in the offense is a finding of

fact subject to clear error review.

United States v. Montgomery, 14 F.3d

1189, 1196 (7th Cir. 1994). In this case,

however, Adeniji neither filed written

objections to the presentencing report

nor objected during the sentencing

hearing to the calculation of drug

quantities directly attributable to her.

Her omissions amount to forfeiture and

result in a plain error standard of

review. United States v. Olano, 507 U.S.

725, 731-35 (1993); United States v.

Wilson, 134 F.3d 855, 869 (7th Cir.

1998).

Like Hamzat, Adeniji was sentenced only

for the amounts directly attributable to

her. A memorandum accompanying the

presentencing report sets forth the many

individual transactions upon which the

three kilogram calculation was based. The

district court accepted this account,

which was supported by Bola’s testimony,

wiretap transcripts, agent testimony,

seized drugs, and seized drug records.

There was no clear error: Adeniji is able

to come up with a drug quantity total of

750 grams only by disregarding a number

of transactions for which the government

provided evidentiary support.

Adeniji claims that the district court’s

calculation was possible only through

double-counting, but our review of the

record reveals no such problem. The

amounts per transaction were specifically

set out and supported through testimony,

exhibits, and other evidentiary

submissions. That there was no double-

counting is also supported by the fact

that Adeniji was directly involved in

each of the listed transactions; all of

the amounts included in Adeniji’s total

were actually received by her or

intercepted just before reaching her.

Last, Adeniji argues that the drug

quantity attributed to her was not

established with sufficient specificity

to allow for adequate appellate review

and accordingly her sentence must be

vacated. Not true: the district judge

stated in open court that he was adopting

the presentencing report’s recommendation

and holding Adeniji responsible for just

under three kilograms, and that is

enough. See United States v. Taylor, 135

F.3d 478, 483 (7th Cir. 1998); see also

United States v. Brimley, 148 F.3d 819,

822 (7th Cir. 1998); Fed. R. Crim. P. 32.

The district court did not discuss each

of the transactions at issue but, given

that defense counsel offered no challenge

to any of the individual transactions

either by submitting another version of

events to counter the government’s

version or by objecting during

sentencing, we see no need for the court

to have done so.

2. Minor or Minimal Role in the

Offense.

Like Hamzat, Adeniji argues that she

played a minor or minimal role in the

offense that entitles her to a two- to

four-level reduction in her offense

level. See U.S.S.G. sec. 3B1.2. She did

not make this argument to the district

court, so our review once again is for

plain error only.

Adeniji’s problem is the same as

Hamzat’s: she was sentenced only for the

quantity of drugs directly attributable

to her and is therefore precluded from a

mitigating role reduction. See, e.g.,

Burnett, 66 F.3d at 140. Moreover,

Burnett notwithstanding, there is no

plain error in the district court’s

conclusion that she was neither a minimal

nor a minor player. Adeniji purchased

nearly three kilograms of heroin from

Bola for resale. Although she was less

culpable than other members of the

conspiracy, this court has recognized

that low-level dealers are vital to the

success of a drug conspiracy and

accordingly upheld district courts’

refusals to grant them mitigating role

reductions. See, e.g., United States v.

Carraway, 108 F.3d 745, 760 (7th Cir.

1997); United States v. Brick, 905 F.2d

1092, 1095-96 (7th Cir. 1990).

Finally, Adeniji argues that her co-

defendants were sentenced less harshly

than she was. That Adeniji’s sentence was

harsher is a mere reflection of the

proper application of the Sentencing

Guidelines: the guideline sections

applicable to Adeniji were higher than

those applicable to her co-defendants who

pleaded guilty and received downward

departures for cooperating. Such

justifiable disparities in sentencing are

not a proper basis for a downward

departure. See United States v.

McMutuary, Nos. 98-1150 & 98-1151, slip

op. at 22 (7th Cir. June 21, 2000);

United States v. Meza, 127 F.3d 545, 549

(7th Cir. 1997).

3. Acceptance of Responsibility

Reduction.

Adeniji argues that she is entitled to

a reduction in her offense level for

acceptance of responsibility. See

U.S.S.G. sec. 3E1.1. Her failure to make

this argument at sentencing leads again

to a plain error standard of review. In

any event, we find no error, plain,

clear, or otherwise, in the district

court’s decision. Adeniji went to trial

and denied the prosecution’s factual

allegations. While a challenge to the

legal basis for a charge (such as a

constitutional challenge to a statute or

a challenge to the applicability of a

statute to the defendant’s conduct) does

not preclude the possibility of an

acceptance of responsibility reduction,

the Guidelines explain that the sec.

3E1.1 "adjustment is not intended to

apply to a defendant who puts the

government to its burden of proof at

trial by denying the essential factual

elements of guilt, is convicted, and only

then admits guilt and expresses remorse."

U.S.S.G. sec. 3E1.1, Application Note 2.

Adeniji has tried to justify her failure

to come forward with the truth earlier by

arguing that she wanted to plead guilty

but was told by her lawyer that he was

too busy and that the government did not

want to talk to her. Naturally, the

record provides no support for these

claims. Her alleged problems with her

representation may be addressed on

collateral review via an ineffective

assistance of counsel claim. On the

record before us, the district court was

entitled to conclude that she had not

accepted responsibility.

C. Sunny Emezuo

Emezuo’s appellate counsel has moved to

withdraw based upon a brief filed under

Anders v. California, 386 U.S. 738

(1967). As he is entitled to, Emezuo has

filed a response, in which he argues that

his trial attorney, Robert Bailey, failed

to provide effective assistance of

counsel.

As an initial matter, we note that the

Anders brief that was filed barely meets

the minimal standard we can accept. An

Anders brief is adequate on its face if

"it explains the nature of the case and

intelligently discusses the issues that a

case of the sort might be expected to

involve." United States v. Tabb, 125 F.3d

583, 584 (7th Cir. 1997); United States

v. Wagner, 103 F.3d 551, 553 (7th Cir.

1996). If the brief is adequate on its

face, "we think we can comfortably rely

on the professional opinion it offers."

Tabb, 125 F.3d at 584. This brief devotes

only three pages to its discussion of the

merits and its arguments are highly

conclusory. Moreover, the brief makes the

bizarre claim that Emezuo’s 145-month

sentence is not reviewable on appeal

because it was within the applicable

Guideline range.

We have, however, looked at the points

counsel has raised in his brief, we have

reviewed the record and the lengthy

appendix furnished to us, and we have

considered Emezuo’s response to his

counsel’s action. Emezuo is distressed

that his more culpable co-conspirators

(such as Bola) got lesser sentences

because they were able to negotiate

successful plea agreements. He presents

this and other arguments, however,

through the prism of an ineffective

assistance of counsel claim. As a

layperson, there is no reason Emezuo

would know that such claims are almost

never suitable for direct appeals,

because the record almost inevitably will

not contain the crucial information for

assessing them properly. United States v.

D’Iguillont, 979 F.2d 612, 614-15 (7th

Cir. 1992). We therefore decline to

consider that argument at this time,

since it is more properly handled in a

petition under 28 U.S.C. sec. 2255.

Apart from that, our review of the

record reveals no arguable issue about

the way the district court handled

Emezuo’s sentencing. At the sentencing

hearing, the district court had before it

the PSR, his lawyer’s motion for a

downward departure, and copies of a

number of "certificates of achievement"

Emezuo had earned during his stay at the

MCC. The court substantially accepted the

PSR’s recommendations. The court

attributed 29.6 kilograms of heroin to

Emezuo, found that he played neither an

aggravating nor a mitigating role in the

offense, and granted him a two-level

adjustment for acceptance of

responsibility. The court denied the

safety-valve adjustment because Emezuo

had not, prior to sentencing, told the

government everything he knew about the

offense. The court also considered

Bailey’s motion for a downward departure.

Bailey argued that a downward departure

was justified because after Emezuo’s

release from American prison, he would be

deported to Nigeria, where he was likely

to be incarcerated for the same

activities. Although the court rejected

this argument as too speculative, it

departed downward by six months to

compensate for the fact that, as a

foreign national, Emezuo was not eligible

to spend the final six months of his

sentence in a halfway house.

The court’s factual findings would

easily withstand clear error review, if

Emezuo were to pursue an appeal, and it

is clear that the court understood the

discretion it had with respect to

departures and exercised it. Thus, we

agree with the ultimate conclusion of

Emezuo’s appellate counsel that an appeal

would be futile.

We therefore Affirm the sentences in

Appeal Nos. 97-1987 (Akanni Hamzat) and

97-2541 (Adetoro Adeniji). In No. 98-3839

(Sunny Emezuo), we grant counsel’s motion

to withdraw from the case and we Dismiss

the appeal.