United States v. Abimbola-Amoo

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-4233

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KAFAYAT ABIMBOLA-AMOO,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 804—James F. Holderman, Judge.

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ARGUED OCTOBER 5, 2004—DECIDED NOVEMBER 23, 2004

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Before POSNER, KANNE, and WOOD, Circuit Judges.

KANNE, Circuit Judge. Kafayat Abimbola-Amoo pleaded

guilty to possession of heroin with intent to distribute and

was sentenced to 57 months’ imprisonment. At sentencing

she argued for a downward departure premised on her

belief that after completing her sentence she will be de-

ported to Nigeria and imprisoned again for the same

conduct. The district judge refused to depart on this basis,

and Amoo appeals. We dismiss the appeal.

I.

Amoo entered the United States in August 2003 from her

native Nigeria with 80 pellets of heroin in her stomach.

2 No. 03-4233

According to her account, she was a first-time drug courier

trying to recover financially after thieves robbed her

clothing business in Lagos of its inventory and cash. The

day after she arrived in Chicago and expelled the pellets,

she was confronted by federal agents who found the 806

grams of heroin during a consent search of her suitcase.

Pursuant to a plea agreement, Amoo pleaded guilty to

possession with intent to distribute in excess of 100 grams

of heroin.

The probation officer assigned to Amoo’s case recom-

mended a base offense level of 30, which she reduced to

25 based on Amoo’s acceptance of responsibility, U.S.S.G.

§ 3E1.1, and the application of the safety valve, id.

§§ 5C1.2, 2D1.1(b)(6). As relevant here, Amoo filed a motion

for downward departure based on her assertion that she

faces further incarceration for her drug offense when she is

deported to Nigeria after serving her prison sentence. Amoo

introduced evidence describing Decree 33 of Nigeria’s

National Drug Law Enforcement Agency, which subjects

any Nigerian citizen who is convicted of a narcotics offense

abroad and thereby “brings the name of Nigeria into disre-

pute” to five years’ imprisonment and the forfeiture of all

assets and property. She also introduced evidence showing

that excessive pretrial detention plagues Nigeria’s correc-

tions system, and that as recently as 2002 up to 80% of all

detainees in the country were awaiting trial, some for as

long as 12 years. Amoo offered reports from Amnesty

International, the British Home Office, the U.S. State

Department, and the Bureau of Citizenship and Immigra-

tion Services documenting that Decree 33 is still in effect in

Nigeria, especially as a basis for initial detention of drug

offenders returning from abroad. The government countered

that Decree 33 is rarely enforced—although it offered no

No. 03-4233 3

evidence to back up its representation1—and argued that

Amoo can only speculate that she faces further imprison-

ment in Nigeria. The district court, reasoning that Amoo

had “not sufficiently shown that the factors she has pre-

sented fall outside the heartland or that they are factors

that the court should consider,” declined to depart.

II.

The government argues that this appeal must be dis-

missed for lack of jurisdiction. It is well-settled that we

have no jurisdiction to review a refusal to depart downward

so long as the decision rested on the exercise of discretion,

and not a mistaken belief that the sentencing court was

without authority to depart. United States v. Atkinson, 259

F.3d 648, 652-53 (7th Cir. 2001). We rarely conclude,

however, that a district court did not understand its

discretion, and presume the opposite to be true. United

States v. Albarran, 233 F.3d 972, 979 (7th Cir. 2000).

Because in this case the government does not dispute

Amoo’s contention that the district court possessed the

authority to depart, we will assume that a showing that an

alien defendant faces further punishment in her home

country for the conduct underlying the federal conviction

could support a discretionary downward departure and

1

For the first time in its brief in this court, the government

draws our attention to what it represents to be an “official notice”

from the Nigerian National Drug Law Enforcement Agency

declaring that Decree 33 has not been enforced since April 2003.

But the government has never produced the document, and

government counsel’s representation about its content is neither

evidence nor supported by any evidence in the record. At oral

argument, counsel sought to excuse reliance on the purported

notice by observing that it is relegated to a footnote in the govern-

ment’s brief, but the location does not change the fact that the

effort plainly flouts Fed. R. App. P. 28(a)(7) and 28(b).

4 No. 03-4233

move on to assess whether the court’s decision was an

exercise of discretion.

Amoo argues that this is one of those rare cases in which

the district court erroneously believed that it lacked

authority to depart, pointing to the court’s own words as her

proof. Those words are far from clear, however, as

the relevant portions of the sentencing transcript demon-

strate:

Does the defendant have to prove the foreign incarcera-

tion by a preponderance of the evidence? The defendant

has not here proven it by a preponderance of the

evidence.

But the question that is somewhat unique is should

a United States court ever take into account a deci-

sion by a foreign country to charge and prosecute an

individual for a crime in that foreign country even if the

prosecution of an individual by that foreign country

arises out of conduct that occurred in the United States.

The crime here in Decree 33 of Nigeria is the crime of

being found guilty in a foreign country of an offense

involving narcotics and thereby bringing the name of

Nigeria into disrepute, whether in the United States

I would agree that that is a prosecutable offense is not

my decision. The laws of Nigeria, unless they vio-

late international law, belong to Nigeria. There is no

foreign transfer possibility. All of Ms. Amoo’s sentence

that I impose today will be served here in the United

States. The fact that she is not eligible for early release

to a halfway house puts her in the same position as

every other deportable alien and that fac- tor alone does

not fall outside the heartland. The purpose of the early

release is to reorient the incarcerated individual into

the United States society. Ms. Amoo will not be in need

of reorientation into United States society because she

will in all likelihood be deported and if deported, in

No. 03-4233 5

likelihood will be prosecuted in the foreign country and

perhaps detained for a substantial period of time.

Although the Sentencing Commission has not ad-

dressed this point, and as the government pointed out,

the closest it came to addressing this point is Sec-

tion 5H1.10 where among other factors such as race,

sex, creed, religion and social economic status the Sen-

tencing Commission determined that national origin

should not be a factor.

I believe that the probability of foreign incarceration

for a crime committed in another country should belong

to the determination of that other country and should

not be a factor considered by a United States court in

evaluating the appropriate sentence for a violation of

United States law.

And so I am going to deny the motion for a downward

departure on the bases that I have indicated. The

defendant has not sufficiently shown that the factors

she has presented fall outside the heartland or that

they are factors that the court should consider. I believe

if the Sentencing Commission were to address this

point, which it has not, that the Sentencing Commis-

sion would say foreign incarceration or the probability

of foreign incarceration is not a factor that a United

States court should consider.

Later the district court encouraged Amoo to appeal its

ruling, observing “that this particular issue ought to be

addressed, and perhaps we can obtain guidance from either

the Court of Appeals or from the Sentencing Commission.”

As Amoo correctly points out, the district court’s explana-

tion for its decision does evidence some doubt on the part of

the court about its authority to depart. Nevertheless,

several factors convince us that the district court was

exercising its discretion not to depart.

6 No. 03-4233

As an initial matter, the court used no language that

would evidence a belief that it could not depart. The court

did not explicitly assert that it lacked authority to de-

part, as district courts did in many of the cases where we

found refusals to depart subject to appellate review. See

United States v. Dote, 328 F.3d 919, 924-25 (7th Cir. 2003)

(reviewing refusal to depart where district court stated that

it did not “have the authority to downwardly depart”);

United States v. Hirsch, 280 F.3d 811, 814 (7th Cir. 2002)

(reviewing refusal to depart where district court con-

cluded that it did not “have any authority under the law

to downward depart”); United States v. Schulte, 144

F.3d 1107, 1109 (7th Cir. 1998) (“[w]e cannot depart down-

ward”). Nor did the court make a conclusion of law, which,

unlike a discretionary decision, is reviewable on appeal. See

United States v. Ekeland, 174 F.3d 902, 905 (7th Cir. 1999);

United States v. Poff, 926 F.2d 588, 590-91 (7th Cir. 1991)

(en banc). Further, the district court did not express a

perception that its discretion was cabined by legal con-

straints. See United States v. Farouil, 124 F.3d 838, 845

(7th Cir. 1997) (reviewing refusal to depart where district

court lamented not having “greater discretion, particularly

in this case”). To the contrary, in sentencing Amoo the court

employed language suggesting an exercise of discre-

tion—e.g., by using “I believe” and “should”— rather than

something more definitive. See United States v. Gulley, 992

F.2d 108, 111 (7th Cir. 1993) (noting that a statement such

as, “The guidelines do not permit a downward departure”

would clearly indicate that the district judge thought he

lacked authority to depart). In the face of the presumption

that district courts under- stand their discretion, the

absence of any clear pronouncement that the sentencing

court thought it was legally unable to depart is a formidable

obstacle in Amoo’s path.

Moreover, we believe that our recent decision in United

States v. Hernandez, 330 F.3d 964, 990 (7th Cir. 2003),

No. 03-4233 7

controls the outcome of Amoo’s appeal. In that case, al-

though we were “somewhat troubled by the district court’s

musings on the record that she was not entirely sure she

could depart,” we held that the district court had exercised

its discretion in refusing to depart downward. In

Hernandez, the district court voiced its uncertainty about

its authority to depart in much clearer terms than the

district court did here, stating explicitly that it did not

think there was a legal basis for departing, and that it

did not think it could grant a departure. Id. at 988. Never-

theless, several features of the district court’s discussion

convinced us that its refusal to depart was an unreviewable

exercise of discretion. First, in declining to depart, the

district court worked within the framework of the four

categories of sentencing factors—forbidden, encouraged,

discouraged, and unmentioned—described in Koon v. United

States, 518 U.S. 81, 94-96 (1996). See Hernandez, 330 F.3d

at 988. Second, throughout our analysis, we emphasized the

importance of reading the district court’s statements of

indecision in context, and read as a whole, we concluded

that the sentencing transcript evidenced an exercise of

discretion. Id. at 988-89.

Amoo’s appeal is distinguishable from Hernandez only

insofar as it presents a stronger case for concluding that the

district court exercised its discretion. The district court in

this case never articulated words of doubt as did the

sentencing court in Hernandez; Amoo can only infer from

several noncommittal passages that the sentencing court

thought its hands were tied. Yet inference alone will rarely

convince us that a district court misunderstood its discre-

tion. Atkinson, 259 F.3d at 653. Further, as in Hernandez,

the district court evidenced its belief that it had discretion

by referring to Koon’s categories of sentencing factors: the

court noted that Amoo’s future punishment was not a

prohibited factor like race or national origin. Finally, the

isolated statements below that Amoo emphasizes, when

8 No. 03-4233

read in context, do not show that the district court misun-

derstood its discretion.

Amoo singles out two brief comments in the lengthy

sentencing transcript that might “reveal some indecision on

the part of the judge about [his] authority to depart.” See

Hernandez, 330 F.3d at 988. She infers that by framing the

issue as whether a United States court should “ever”

consider a successive foreign punishment, the court was

necessarily exploring the question as a categorical legal

matter. Yet in the very next paragraph, the sentencing

judge opined that Nigeria’s laws are for Nigeria alone, and

that Amoo’s prospect of future imprisonment in Nigeria was

not the concern of a United States court. Like the district

court in United States v. Wright, 37 F.3d 358, 361 n.3 (7th

Cir. 1994), the sentencing judge made a value-laden

judgment that foreign incarceration should be a matter for

the foreign jurisdiction. This decision was the essence of

discretion, and we may not second-guess it.

Amoo further notes that at the end of the sentencing

hearing the district judge volunteered that Amoo should

consider appealing the departure decision. Although a sister

circuit has noted under similar facts that district judges

must know there will be no appellate review of a refusal to

depart “unless it was based on lack of authority to depart,”

United States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002),

we are unwilling to take such a narrow view. In Taylor, the

district court also stated explicitly that it did not believe it

had authority to depart, so the reviewing court was not

faced with deciding whether an errant comment about

appellate review would be enough to compel a conclusion

that the court thought it lacked discretion to depart. Id.

Here, by contrast, Amoo has mere inference, not an explicit

assertion, that the district court believed it had no discre-

tion. In this context, the district court’s brief allusion to

appellate review weighs little in our assessment.

No. 03-4233 9

Thus, although the sentencing transcript leaves some

room for doubt, we hold that the district court exercised

its discretion not to depart downward, a decision that

we are without jurisdiction to review.

One final point. At oral argument, we invited the govern-

ment to forestall appeals like this one by clarifying unclear

sentencing decisions before the close of the sentencing

hearing, and we renew that invitation now. In this case,

simply by asking the district court at sentencing whether its

refusal to depart downward was an exercise of discretion or

the product of a conclusion that it was legally unable to

depart, the United States could have obviated the confusion

that formed the basis for appeal. See United States v.

Dowell, No. 03-2747, 2004 WL 2397335, at *2 (7th Cir. Oct.

27, 2004). And because the United States prosecutes many

criminal cases, it could significantly lighten the burden of

this court and other courts of appeal—not to mention its

own appellate staff—by taking this simple prophylactic

measure in the future.

III.

Because we lack jurisdiction to consider Amoo’s claims,

we DISMISS the appeal.

WOOD, Circuit Judge, dissenting. Try as I might, I

cannot read Judge Holderman’s thoughtful observations

in this case about his authority to depart downward in

response to defendant Kafayat Abimbola-Amoo’s motion in

the same way as the majority. The majority has reproduced

the relevant part of the transcript ante at 4-5. What stands

out to me are the following statements from the judge:

10 No. 03-4233

! [S]hould a United States court ever take into account

a decision by a foreign country to charge and prose-

cute an individual for a crime in that foreign country .

. . . (Emphasis added.).

! I believe that the probability of foreign incarceration

for a crime committed in another country . . . should

not be a factor considered by a United States court in

evaluating the appropriate sentence for a violation

of United States law. (Emphasis added.)

! The defendant has not sufficiently shown that the

factors she has presented fall outside the heartland or

that they are factors that the court should consider.

(Emphasis added.)

These comments leave no room, in my opinion, for the

strained interpretation that the majority gives them—

namely, that the district court judge was really saying that

he knew that he was free to depart downward based on

the possibility of foreign prosecution, but that he was

exercising his discretion not to do so. The mere fact that the

judge used the verb form “should” a couple of times, and

that he prefaced the key middle sentence with the phrase “I

believe” does not change the fact that the judge was speak-

ing in absolutes. Phrased differently, the three clauses

reproduced above are asking the following questions: should

a potential foreign punishment ever be a factor? Should it be

a factor at all? May the court even consider it as a factor?

It is no disgrace to any judge to acknowledge that he

or she is making a legal ruling on a point on which reason-

able jurists might disagree. Judge Holderman signaled that

he was doing exactly that, and he could not have been more

explicit in his invitation to the parties to take an appeal to

this court, under the authority that exists in 18 U.S.C. §

3742. It is well established that this court has jurisdiction

to review a district court’s decision that the guidelines

No. 03-4233 11

absolutely prohibit a departure on a particular ground.

United States v. Ekeland, 174 F.3d 902, 906 (7th Cir. 1999).

There is every reason to think that the judge’s legal

conclusion may have affected the ultimate sentence Amoo

received. At one point, the judge said, in response to Amoo’s

plea to the court to take mercy on her, “I will have mercy on

you to what I believe to be the fullest extent the law al-

lows.” With that comment hanging in the air, he sentenced

her to 57 months, which was the low end of the relevant

guideline range. The most plausible reading of this ex-

change is that the judge believed that he could go no lower,

which in turn means that he thought that he was legally

unable to grant the motion for a downward departure. See

United States v. Buckowich, 243 F.3d 1081, 1082 (7th Cir.

2001). It is impossible to tell on this record whether Judge

Holderman would have granted some kind of departure, had

he concluded that he had the authority to do so. I agree

with the majority that the government should do more to

clarify ambiguous sentencing decisions, ante at 9. If we

ignore obvious ambiguities, as the majority does here,

however, that recommendation does not carry much weight.

The only reason not to vacate the sentence and remand

for resentencing would be if this court agreed with the

district court’s legal conclusion. The majority elides this

question, ante at 3-4, but I cannot. The starting point, as

the majority acknowledges in a slightly different context, is

the four-category test set up in Koon v. United States, 518

U.S. 81, 94-96 (1996): forbidden factors, encouraged factors,

discouraged factors, and unmentioned factors. Only the first

are totally beyond the authority of the court to invoke. The

analogy the district court here drew to U.S.S.G. § 5H1.10

(the factors of race, sex, national origin, religion, and socio-

economic status are “not relevant” in the determination of

a sentence) strongly indicates that the court thought that

risk of foreign prosecution was similarly forbidden. But the

risk of foreign prosecution, even under a law that makes

12 No. 03-4233

certain conduct an offense only for nationals of the prosecut-

ing country, has little in common with the list contained in

§ 5H1.10. The overwhelming majority of Nigerians will

never be prosecuted under Decree 33, because they will

never be convicted of a narcotics offense in another country

and then be returned to Nigeria. There is nothing immuta-

ble or inevitable about this risk. Searching for analogies, it

is much more like a risk of double prosecution or double

punishment for the same offense. In general terms, the

Guidelines permit adjustments for this kind of problem.

See, e.g., U.S.S.G. § 5G1.3 (undischarged terms of imprison-

ment for same relevant conduct); Witte v. United States, 515

U.S. 389, 405 (1995).

Looked at another way, this appears to be a particu-

larly harsh consequence that only an alien being removed

to Nigeria will suffer. This court held in United States

v. Bautista, 258 F.3d 602, 607 (7th Cir. 2001), that a

downward departure is possible in light of the collateral

consequences of deportation, but that any such departure

should be granted only when those consequences are

extraordinary. Following up on the latter idea, we have also

held that slight differences in end-of-sentence confinement

conditions for aliens do not support the grant

of a downward departure. United States v. Meza-Urtado,

351 F.3d 301, 305 (7th Cir. 2003). If the type of collateral

consequence identified in Bautista and Meza-Urtado is not a

forbidden basis of departure, then I see no reason why the

more draconian consequence imposed by Nigerian Decree 33

should be one.

Instead, on the record we now have before us, it ap-

pears that Amoo might spend an additional five years

in prison and be stripped of her property after she is

removed to Nigeria; worse yet, she may fall into the abyss of

indefinite pretrial detainment with no assurance of a

reasonably prompt ruling one way or the other. This may,

depending on the record, qualify as the kind of “fortuitous

No. 03-4233 13

increase in the severity of [her] sentence” to which the D.C.

Circuit referred in United States v. Smith, 27 F.3d 649, 655-

56 (D.C. Cir. 1994), or the “extraordinary” collateral

consequence this court was thinking of in Bautista. The fact

that the double jeopardy principle does not prevent two

separate sovereigns from prosecuting Amoo does not, as the

government seems to think, imply that a departure here

must be precluded. The Supreme Court rejected precisely

this line of argument in Koon, 518 U.S. at 112, in the

context of the more common configuration of a state and the

federal government as the two relevant sovereigns. There

is no reason that foreign governments should be treated

differently for this purpose.

I would hold, therefore, that the risk of foreign prosecu-

tion is not a forbidden ground of departure. Analogizing to

the various sources of law I have discussed, particularly

Bautista, I would treat it as a discouraged ground. The

proper result here would be to vacate the district court’s

decision and to remand for development of an appropri-

ate record on the basis of which the court could then

exercise its discretion. I respectfully dissent from the

majority’s decision to dismiss this appeal for want of

jurisdiction.

14 No. 03-4233

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-23-04