Petition for Writ of Certiorari — Abetubokun Adesioye, Petitioner v. United States

J

Supreme Court, U.S.

FILED

MAR 15 2022

NO. 21-

1115

office OF THE CLERK

3Jn tfje

Supreme Court of tfje ®ntteb States

ABETUBOKUN ADESIOYE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

ABETUBOKUN ADESIOYE

Petitioner Pro Se

6305 Ivy Lane #510

GREENBELT, MD 20770

(301) 441-4900

March 16,2022

SUPREME COURT PRESS

♦

(888) 958-5705

♦

Boston, Massachusetts

1

QUESTION PRESENTED

'

Did the Court of Appeals err in finding that the

petitioner knowingly and intelligently waived his right

of appeal without having considered the existence,

nature and extent of the Rule 11 colloquy and did the

court of appeals err in determining the scope of the

appeal which the petitioner had waived including his

right to appeal that part of the sentencing which

exceeded the guidelines and that part of the sentencing

which established the offense level?

11

LIST OF PROCEEDINGS

I

This is a petition for two cases which were

consolidated for sentencing and appeal. The cases

were identified as 20-4621 and 20-4621(L) in the

United States Court of Appeals for the Fourth Circuit.

The cases were identified in the United States District

Court as PJM 00-0605 and PJM 00-0373 and were

consolidated on January 24, 2001. This petition is for

both cases.

United States Court of Appeals for the Fourth Circuit

Nos. 20-4621, 20-4621(L)

United States of America, Plaintiff-Appellee,

v. Abetubokun A. Adesioye, Defendant-Appellant

Date of Final Judgment: December 16, 2021

United States District Court, District of Maryland

Nos. PJM-8-00-CR-00373, PJM-8-00-CR-00605-001

United States of America v. Abetubokun A. Adesioye

Date of Final Order: December 15, 2020

Ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED................................

1

LIST OF PROCEEDINGS.................................

11

TABLE OF AUTHORITIES..............................

v

PETITION FOR A WRIT OF CERTIORARI....

1

OPINIONS BELOW..........................................

1

JURISDICTION..................................................

1

JUDICIAL RULES INVOLVED.......................

2

STATEMENT OF THE CASE...........................

4

REASONS FOR GRANTING THE PETITION

6

CONCLUSION....................................................

8

IV

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Order of the United States Court of Appeals

for the Fourth Circuit (December 16, 2021)..... la

Judgment of the United States Court of Appeals

for the Fourth Circuit (December 16, 2021)..... 4a

Judgment in a Criminal Case

(December 15, 2020)........

6a

V

TABLE OF AUTHORITIES

Page

CASES

U.S. v. Blick,

408 F.3d 162 (4th Cir. 2005)

6

U.S. v. Brown,

232 F.3d 399 (4th Cir. 2000)

6

U.S. v. Manigan,

592 F.3d 621 (4th Cir. 2010).

6

STATUTES

18U.S.C. § 1344....

4

18U.S.C. § 3553(a)

3

18U.S.C. §371......

4

28 U.S.C.§ 1254(1)..

1

JUDICIAL RULES

Fed. R. Crim. P. 11...

i, 2, 6, 7

1

m

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certi­

orari issue to review the judgment below.

♦

OPINIONS BELOW

The per curiam Opinion of the United States Court

of Appeals for the Fourth Circuit dated December

16, 2021, included at App.la. (These Opinions were

not designated for publication). The Judgment of the

United States Court of Appeals for the Fourth Circuit

dated December 16, 2021, included at App.4a. The

Judgment of the United States District Court for the

District of Maryland dated December 16, 2020 included

at App.6a.

JURISDICTION

The date of the decision of the United States Court

of Appeals in this case was December 16, 2021. No

petition for rehearing was filed. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1254(1).

2

JUDICIAL RULES INVOLVED

Fed. R. Crim. P. 11(b)

(b) Considering and Accepting a Guilty or Nolo

Contendere Plea

(1) Advising and Questioning the Defendant.

Before the court accepts a plea of guilty or nolo

contendere, the defendant may be placed under

oath, and the court must address the defendant

personally in open court. During this address, the

court must inform the defendant of, and determine

that the defendant understands, the following:

(A) the government’s right, in a prosecution for

perjury or false statement, to use against the

defendant any statement that the defendant

gives under oath;

(B) the right to plead not guilty, or having so

pleased, to persist in that plea;

(C) the right to a jury trial;

(D) the right to be represented by counsel-and if

necessary have the court appoint counsel—at

trial and at every other stage of the proceed­

ing;

(E) the right at trial to confront and cross-examine

adverse witness, to be protected from com­

pelled self-incrimination, to testify and pre­

sent evidence, and to compel the attendance

of witnesses;

3

(F) the defendant’s waiver of these trial rights

if the court accepts a plea of guilty or nolo

contendere;

(G) the nature of each charge to which the defen­

dant is pleading;

(H) any maximum possible penalty, including

imprisonment, fine, and term of supervised

release;

(I)

any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court’s authority to order restitution;

(L) the court’s obligation to impose a special

assessment;

(M) in determining a sentence, the court’s obli­

gation to calculate the applicable sentencingguideline range and to consider that range,

possible departures under the Sentencing

Guidelines, and other sentencing factors

under 18 U.S.C. § 3553(a);

(N) the terms of any plea-agreement provision

waiving the right to appeal or to collaterally

attack the sentence; and

(O) that, if convicted, a defendant who is not a

United States citizen may be removed from

the United States, denied citizenship, and

denied admission to the United States in the

future.

(2) Ensuring That a Plea Is Voluntary. Before

accepting a plea of guilty or nolo contendere, the

court must address the defendant personally in

open court and determine that the plea is volun-

4

tary and did not result from force, threats, or

promises (other than promises in a plea agree­

ment).

(3) Determining the Factual Basis for a Plea.

Before entering judgment on a guilty plea, the

court must determine that there is a factual basis

for the plea.

STATEMENT OF THE CASE

On July 31, 2000, a four count indictment was

filed against Abetubokun A. Adesioye and four co­

defendants charging Mr. Adesioye with conspiracy and

bank fraud. (JA 26). This indictment was designated

as case number AW-00-CR-0373. On December 20,

2000, a second indictment was filed against Abetu­

bokun A. Adesioye charging him with four counts of

bank fraud. (JA 34). This indictment was designated

as case number AW-00-CR-0605. These cases were

consolidated on January 24, 2001. (JA 8).

On March 13, 2001, Adesioye entered a plea of

guilty in case number AW-00-CR-0373 as to count

one conspiracy to commit bank fraud in violation of

18 U.S.C. § 371 and in case number AW-00-CR-0605

as to count one bank fraud in violation of 18 U.S.C.

§ 1344. (JA 8). This plea was entered pursuant to a

plea agreement with the government which Adesioye

signed on March 12, 2001. (JA 115).

Adesioye was released by Judge Williams on May

30, 2001, pending sentencing and after having served

314 days in detention. (JA 8, 20). In January of 2005,

Adesioye absconded to Nigeria where he established

5

his residence and failed to appear for sentencing in

these matters. (JA 206). A bench warrant was issued

for Mr. Adesioye on March 17, 2005. (JA 9, 20,155,159).

Mr. Adesioye remained in Nigeria until 2019. (JA

159, 206). On October 23, 2019, Mr. Adesioye flew into

New York where he surrendered to authorities. (JA

206). Mr. Adesioye has been incarcerated from that date

to the present date. (JA 206).

In preparation for Mr. Adesioye’s sentencing, the

U.S. Probation Office prepared a presentence investi­

gation report on April 26, 2001. (JA 126). That report

was revised on May 18, 2001. (JA 126). An updated

second revision was prepared on June 25, 2020. (JA

199). The Probation Office calculated Mr. Abetubokun’s

total offense level as 23 and his criminal history

category as V corresponding to an advisory guideline

range of 84 months to 105 months. (JA 126, 199).

Adesioye disputed several of the guidelines calculations

and filed Objections to Presentence Report on May

19, 2020. (JA 192). Adesioye also filed a Sentencing

Memorandum on May 19, 2020 and August 7, 2020.

(JA 158, 226).

On December 10, 2020, Judge Messitte of the

district court held a sentencing hearing. (JA 38). The

Court heard argument and evidence from Mr. Adesioye

and a witness for Mr. Adesioye. (JA 291, 324, 70). The

Court imposed a sentence of 60 months imprisonment

as to count one of indictment number PJM 00-0373 and

153 months imprisonment as to count one of indict­

ment number PJM 00-0605. (JA 99, 105). The sentence

in PJM 00-0605 was ordered to run concurrent to the

sentence imposed in PJM 00-0373. (JA 105).

6

The Court entered Judgment and issued a State­

ment of Reasons in both cases on December 16, 2020,

(JA 99, 105, 336, 341) and Adesioye timely filed a

notice of appeal in each case in the district court on

December 18, 2020 (JA 111, 113).

REASONS FOR GRANTING THE PETITION

The reason for granting the petition is that the

United States Court of Appeals has so far departed

from the accepted and usual course of judicial proceed­

ings and has sanctioned such a departure by a lower

court as to call for an exercise of this Court’s super­

visory power. In the instant case the court of

appeals erred in finding that the petitioner had

waived his right to appeal his sentence and erred in

failing to determine the scope of the waiver of appeal.

A defendant may not appeal his sentence if his

plea agreement contains an express or unqualified

waiver of the right to appeal unless that waiver is

unknowing or involuntary U.S. v. Brown, 232 F.3d

399 (4th Cir. 2000). A waiver will be enforced if it is

valid and if the issue sought to be appealed is within

its scope U.S.v. Blick, 408 F.3d 162 (4th Cir. 2005).

An appellate waiver is valid if the defendant knowingly

and intelligently agreed to it. Whether a defendant

knowingly and intelligently agreed to waive his right

to appeal must be evaluated by reference to the totality

of the circumstances U.S. v. Manigan, 592 F.3d 621

(4th Cir. 2010). An important factor in such an evalu*

ation is whether the district court sufficiently explained

the waiver to the defendant during the Rule 11 plea

7

colloquy. U.S. u. Manigan, supra. Rule 11 requires that

a district court inform the defendant of the terms of

any plea agreement provision waiving the right to

appeal or to collaterally attack the sentence. In the

instant case the Court of Appeals relied solely on the

plea agreement to determine that the defendant had

knowingly and intelligently waived his right to appeal

his sentence. The Court of Appeals completely failed

to review the nature, existence or substance of any

Rule 11 plea colloquy. Without such review, the court of

appeals could not conclude that defendant had know­

ingly and intelligently waived his right to appeal his

sentence.

The court of appeals also failed to consider the

scope of petitioner’s waiver of appeal. In paragraph 7

of his plea agreement, the waiver of appeal did not

include a waiver of the right to appeal from an

upward departure from the offense level. In fact,

such a basis for appeal was reserved from the waiver

of appeal. Therefore, even if petitioner waived his

right of appeal he did not waive it as to his scope. It

was further agreed that the sentence would be within

the guideline’s range. In this case the sentence greatly

exceeded the guideline’s range by forty-eight months

and the petitioner reserved his right of appeal as to

that issue.

8

*

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Abetubokun Adesioye

Petitioner Pro Se

6305 Ivy LANE #510

GREENBELT, MD 20770

(301) 441-4900

March 16,2022