Petition for Writ of Certiorari — Taiwo K. Onamuti, Petitioner v. United States
Supreme Court briefJun 23, 2023
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IN THE SUPREME COURT OF THE UNITED STATES
JUtlSt3 2023
Taiwo Onamuti,
Petitioner,
oFFicEorn^B^
V.
United States of America,
Respondent.
the United States Court of
On Petition For Writ of Certiorari to
Appeals for the Seventh Circuit
Petition for Writ of Certiorari
Taiwo Onamuti
RECESVED
JUL 1 3 2023
Reg. No. 69971-019
FCC Coleman Medium
p.O. Box 1032
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QUESTIONS PRESENTED
1)
Can an original guilty plea be completely knowing and voluntary, when
counsel, the government, and the district court wrongly advised defendant about
§ 287 being a lawful predicate for an aggravated identity theft under § 1028A?
And
must the entire plea be vacated?
2) Is Plenary Resentencing necessary when the District Court based its § 3C1.1
obstruction enhancement on defendant's refusal to plead guilty to aggravated
identity theft § 1028A when the court had no jurisdiction to receive such plea?
3) Is Plenary Resentencing now mandatory considering the Supreme Court's recent
decision in United States v. Dubin, No. 22-10?
4) Did the district court sentence Onamuti in excess of the statutory maximum?
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TABLE OF AUTHORITIES
v
Cases
• \
Page(s)
Apprendi v. New Jersey, 530 U.S. 466 (2000)...........................................
11, 15, 16
Blakely v. Washington, 542 U.S. 296 (2004).............................................
15
Brady v. United States, 397 U.S. 742, 748 (1970).................................
3, 6, 15
Henderson v. Morgan, 426 U.S. 637, 645 (1976).......................................
15
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)..........................................
4
Hinton v. Alabama, 571 U.S. 263, 275 (2014)..........................................
2
In Re Winship, 397 U.S. 358, 364 (1970)...................................................
14
Lack v. Houston, 487 UiS. 266 (1988)........................................................
25
McKarthy v. United States, 394 U.S. 459, 466 (1969)............................
15
McKeever v. Warden SCI-Graterford, 486 F.3d 81, 86 (3d Cir. 2007).
3, 7
McMann v. Richardson, 397 U.S. 759, 771 (1970).....................................
4
Morris v. California, 966 F.3d 448, 454-55 (9th Cir. 1992)..............
2
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160,
27 L. Ed. 2d 162 (1970)............................................................................
3
Onamuti v. United States, No. l:21-cv-01627-JRS-DML (June 6, 2022)
...1, 5
Padilla v. Kentucky, 559 U.S. 356, 372 (2010).......................................
...4, 5
Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000).....................................
...5, 8
Strickland v. Washington, 466 U.S. 668 (1984).......................................
1, 2, 4
Thomas v. Clements, 789 F.3d 760, 768-69 (7th Cir. 2015)..................
2
Toilet v. Henderson, 411 U.S. 258, 267 (1973).......................................
4
United States y. Bradley, 381 F.3d 641, 645 (7th Cir. 2004)............
3, 5, 6
United States v. Dubin, S. Ct. No. 22-10 (2023)...................................
.10, 16
United States v. Howard, 968 F.3d 717 (7th Cir. 2020)........................
6
United States v. Shue, 825 F.3d 1111, 1114 (7th Cir. 1987)........
7
United States v. Sprenger, 14 F.4th 785, 791-92 (7th Cir. 2021)...
3, 5, 6
United States v. Villereal, 253 F.3d 831 (5th Cir. 2021)..................
16
Wooley v. Rednour, 702 F.3d 411, 423 (7th Cir. 2012)..........................
2
TABLE OF STATUTES
Statutes
18 U.S.C. § 287...........
18 U.S.G. § 371...........
18 U.S.G. § 924(c)....
18 U.S.C. § 1028A........
18 U.S.G. § 1028(a)(7)
18 U.S.G. § 1028(b)...
18 U.S.C. § 1621.........
18 U.S.C. § 3742.........
28 U.S.C. § 1254.........
28 U.S.G. § 1291.........
28 U.S.C. § 1746.........
28 U.S.G. § 2255.........
a, b, 1, 6
b
6
b, 1, 6, 7, 8, 10
....b, 11, 13, 15
...11, 13, 14, 15
25
a
a
a
25
b, 1
U.S.S.G. § 3C1.1
Page(s)
...a, 8
Supreme Court Rules
Supreme Court Rule 29.5(b)....
Page(s)
25
U.S.S.G.
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(
Page(s)
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TABLE OF CONTESTS
OPINIONS BELOW.
JURISDICTION
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE.............
REASONS FOR GRANTING THE WRIT
CONCLUSION
INDEX TO APPENDICES
APPENDIX A Order Granting Motion to Vacate
APPENDIX B
'x
r
Certificate of Appealability
1
OPINIONS BELOW
Taiwo Onamuti's Order Granting Motion to Vacate is attached as Appendix "A."
Taiwo Onamuti's Certificate of Appealability is attached as Appendix "B."
JURISDICTION
The Seventh Circuit Court of Appeals's jurisdiction was invoked under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254.
CONSTITUTIONAL AND STATUTORY PROVISIONS
This case concerns if an original guilty plea can be completely knowing and
voluntary, when counsel, the government, and the district court wrongly advised
defendant about § 287 being a lawful predicate for an aggravated identity theft
under § 1028A? And must the entire plea be vacated? In addition, is Plenary
Resentencing necessary when the district court based its § 3C1.1 obstruction
enhancement on defendant's refusal to plead guilty to aggravated identity theft
§ 1028A when the court had no jurisdiction to receive such plea?
a
STATEMENT OF THE CASE
Mr. Onamuti was charged in a second Superseding indictment on June 6, 2017,
charging Onamuti with eleven counts of presenting false claims, in violation of 18
U.S.C. § 287 (Counts 1-11); nine counts of identity theft in violation of 18 U.S.C.
§ 1028(a)(7) (Counts 12-20); two counts of aggravated identity theft in violation of
18 U.S.C. § 1028A (Counts 21-22); and one count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371 (Count 23).
On September 1, 2017, the court held Onamuti's change of plea hearing.
D. 191).
Onamuti agreed to plead guilty to Counts 1, 12, and 21.
On April 12, 2018, Onamuti filed a motion to withdraw his plea.
(Grim.
(Crim. D. 186).
(Crim. D. 236).
On
November 26, 2018 the court denied Onamuti's motion to withdraw his guilty plea.
(Crim. D. 256).
Sentencing was held on December 27, 2018 (Crim. D. 263).
The court sentenced
Onamuti to 204 months imprisonment (60 months on Count 1; 180 months on Count 12;
and 24 months for Count 21).
(Sent. T. 211).
On November 22, 2019, Onamuti filed a notice of appeal.
(Crim. D. 169).
The
Seventh Circuit held that without substantial evidence impugning the validity of his
plea he would not be allowed to withdraw his plea, and that Onamuti had offered "no
evidence" that his lawyer had failed to advise him about the mandatory deportation
nature of the charges against him.
on
7 Onamuti filed a motion to vacate his sentence pursuant to
28 U.S.C. § 2255 (D. 1).
Onamuti claimed his counsel was ineffective, resulting in
an involuntary plea, because he failed: (1) to dismiss the aggravated identity theft
count; (2) challenge the venue of the identity theft offense; and (3) inform him of
the immigration consequences.
The
government
ineffective
and
and
the
performed
(Id).
District
Court
deficiently
in
agreed
failing
that
to
Onamuti's
challenge
the
counsel was
aggravated
identity theft counts (Count 21 and 22) and as a result, Onamuti was prejudiced
because Onamuti's § 1028A offense was predicated upon a violation of § 287.
But §
287 is not enumerated in § 1028A(c), and thus the district court vacated Count 21.
b
Onamuti argued further that his entire plea was involuntary as it was predicated
on inaccurate information, which resulted in the denial of his Sixth Amendment right
to effective assistance of counsel.
The district court denied Full plenary resentencing, maintaining there were no
circumstances that would change the court's position on sentencing Onamuti to the
statutory maximum sentence of 60 months on Count 1, and 180 months on Count 12.
(Crim. Dkt. 279 at p. 187-189).
Nor would the court increase Onamuti's sentence by
resentencing him to consecutive sentences on Counts 1 and 12.
Judgement was entered by the court on June 6, 2022.
timely
filed
a notice
of
appeal
(Docket
36).
(Docket 27).
Onamuti
Application for Certificate of
Appealability was submitted to the Seventh Circuit Court of Appeals on August 23,
2022.
was
(No. 22-2115).
denied
effective
Onamuti submitted for reasonable jurists whether a defendant
assistance
of
counsel
rendering
his
entire
guilty plea
involuntary, and the Court found no denial of a Constitutional right and entered
final judgement on March 31, 2023.
This writ follows.
c
REASONS FOR GRANTING THE WRIT
f
ElM. Plenary resgitaxjrg_is vHEranted vhan tiie uiintelligmt arri unkrowing plea is
i Va result
of all parties belrp mistafen abxit the law, pre-pLeas, plea and at tie saatapir^ liearii^.
f
J
Onamuti raised three claims in his original 28 U.S.C. § 2255.
Ultimately the
government agreed that his counsel was ineffective for: (1) failing to challenge the
two counts of aggravated identity theft,
plead guilty.
(Counts 21-22); and (2) advising him to
The district court agreed and vacated his sentence, but denied a
resentencing hearing and refused Onamuti permission to withdraw his plea agreement.
Onamuti v. United States of America, No. l:21-cv-01627-JRS-DML (June 6, 2022).
At issue is whether or not Onamuti is entitled to a full plenary resentencing or
retrial.
The United States contended that Onamuti*s case should have been set for
resentencing on the remaining two counts (Doc. 27 at 127), presumably to address the
enhancements
based
on Onamuti*s
obstruction
enhancement
and
the
United States
withdrawal of acceptance of responsibility, both of which are related to Onamuti*s
refusal to plea to what later became an unconstitutional plea.
The District Court refused to unravel the plea agreement, despite the district
court's finding that Onamuti had met both prongs of Strickland v. Washington, 466
U.S. 668 (1984), namely deficiency and said deficiency caused prejudice.
Onamuti
should
have
never
been
indicted nor later convicted of aggravated
identity theft under § 1028A(a)(l), which states: "Whoever, during and in relation
to
any
felony
violation
enumerated
in
sub
section
(c),
knowingly
transfers,
/possesses, or uses, without lawful authority, a means of identification of another
person shall, in addition to the punishment provided for such felony, be sentenced
to a term of imprisonment of 2
the
qualifying
predicates.
violation of § 287.
years."
Onamuti's
Subsection (c) of the statute enumerates
§
1028A offense was
predicated
upon
a
(DKT. 16 at p. 13) (citing Crim. DKT. 91 at 12).
But § 287 is not enumerated in § 1028A(c).
Section 287 is found in Chapter 15,
which is not one of the enumerated chapters.
Thus, Onamuti's guilty plea in its
entirety should be invalid.
1
Onamuti's trial counsel did not understand the law in relation to multiple
counts against Onamuti, presumably trial counsel would have investigated this case
differently, would have prepared a defense differently, and would have approached
plea negotiations and plea agreement advice differently.
Strickland* s "deficient performance" prong requires a defendant to show by a
preponderance of the evidence "that counsel's representation fell below an objective
standard
of
reasonableness"
such that
guaranteed by the Sixth Amendment."
counsel was not functioning as "counsel
Strickland, 466 U.S. at 687-88.
The Sixth
Amendment requires a criminal defense attorney to know the charges against the
accused.
Counsel's "ignorance of a point of law that is fundamental to his case
combined
with
his
failure
to
perform
basic
research
quintessential example of unreasonable performance."
on
that
point
is
a
Hinton v. Alabama, 571 U.S.
263, 275 (2014) (where trial counsel knew he needed additional funds for trial but
failed to make even a cursory investigation of the law).
The mistake here is not one of a justifiable strategic choice. Wooley
Rednour, 702 F.3d 411, 423 (7th Cir. 2012).
misunderstanding of fact or law.
Neither was counsel's mistake one of
Thomas v« Clements, 789 F.3d 760, 768-69 (7th Cir.
2015), but rather a mistake where counsel was unfamiliar with the law.
California, 966 F.3d 448, 454-55 (9th Cir. 1992).
(1984),
"Strategic
choices made
v.
after
Morris v.
Under Strickland, 466 U.S. 668
thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices
made after less than complete investigation are reasonable precisely to the extent
that
reasonable
investigations
or
to
make
a
reasonable
decision
particular investigations unnecessary." 466 U.S • 9 at 690-691 (1984).
that
makes
In Hinton v.
Alabama, 571 U.S. 263 (2014), defendant's attorney knew he needed more funding for
his investigation but failed to research the law in regard to procuring those funds,
which ultimately lead to the court finding that an attorney's ignorance of a point
of law that is fundamental to his case combined with his failure to perform basic
research on that point is a quintessential example of unreasonable performance under
Strickland.
Id.
When Onamuti's counsel reviewed his case, the singular most important aspect is
to actually read the United States Code itself.
2
The U.S.C. was written well before Onamuti's case,
The record demonstrates
counsel did not object to the erroneous standard at the change of plea.
never brought to the attention of the government or the court.
It was
Onamuti has already
demonstrated that because of counsel's ignorance of the law, his plea could not be
knowing, intelligent, or "voluntary" and "intelligent."
U.S. 742, 748 (1970).
Brady v. United States, 397
Because a plea waives a constitutional right to a trial, it
must be entered Into with sufficient awareness of the relevant circumstances and
likely consequences."
Id.
The district court seeks to excise
only one Count as
if the entire plea is not affected by counsel's unawareness of the law.
Retrial or
Plenary Resentencing is necessary so that Onamuti is returned to the District Court.
PLENARY OR RETRIAL IS NECESSARY
The District Court later upheld by the Seventh Circuit Court of Appeals, found
that even though Onamuti had proven prejudice in the context of his change of plea,
the court would not allow Onamuti to withdraw his entire guilty plea, and plea
agreement,. relying on United States v. Sprenger, 14 F.4th 785, 791-92 (7th Cir.
2021), which relates "[w]hen a defendant enters a guilty plea to multiple counts and
One plea is subsequently invalidated, we consider whether the defendant's plea to
the
remaining
counts
"represents
a voluntary and intelligent choice among the
alternative courses of action open to the defendant."
North Carolina v. Alford, 400
U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); see McKeever v. Warden SCIGraterford,
486 F.3d 81,
86
(3d.
Cir.
2007)
("We decline to adopt a rule that
renders a multi—count plea agreement per se invalid when a subsequent change in the
law renders a defendant innocent of some, but not all, of the counts therein aAd
reject
the
argument
that
such a
voluntarily and intelligently."),
plea
could
never
be
entered
by a defendant
But as we have indicated previously, "there is no
absolute right to withdraw a guilty plea • • • and a defendant seeking to do so faces
an uphill battle after a thorough Rule 11 colloquy." United States v. Bradley, 381
F.3d 641, 645 (7th Cir. 2004) (quotations and citation omitted).
In fact, we have
an "obligation to ensure that guilty pleas are not lightly discarded because of the
presumption of verity accorded the defendant's admissions in a Rule 11 colloquy."
Id.
(cleaned up).
The District Court seeks to attach case law that renders a multi-count plea
agreement invalid when a subsequent change in the law renders a defendant innocent
of some.
McKeever v. Warden SCI—Graterford, 486 F.3d 81, 86 (3d Citf. 2007).
3
Ineffective assistance of counsel at the change of plea stage in the proceedings
is governed by the familiar Strickland, 466 U.S. 668, 687 (1984) standard.
As the
Supreme Court held in Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), there must be
ineffective representation coupled with prejudice, which in the change of plea
setting means that the prejudice affected the outcome of the entire hearing.
The
court wrote:
"The two-part Strickland test applies to challenges to guilty pleas based on
In the context of guilty pleas, the first half
ineffective assistance of counsel,
of
the Strickland test is nothing more than a restatement of
the standard of
attorney competence already set forth in Toilet v. Henderson, supra, and McMauu v.
Richardson,
supra.
The second,
or
'prejudice'
requirement,
on the other hand,
focuses on whether counsel's constitutionally ineffective performance affected the
outcome of the plea process,
In other words, in order to satisfy the prejudice
requirement, the defendant must show that there is a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would have insisted
on going to trial."
Id.
There is no Option for keeping the plea agreement.
Since defendants often do not want to give up the benefits of their agreements
and face trial on the charges against them, the Strickland test is not often applied
in the change of plea setting,
In Padilla v. Kentucky, 559 U.S. 356, 372 (2010),
the court relied on the holding from Hill to apply the Strickland test to defense
counsel's failure to apprise his client that he would be deported upon entering a
guilty plea.
There,
the court held that the failure of advice need not be an
affirmative failure, but can occur merely through counsel's silence on the issue.
Id.
In explaining why that holding would not release a flood of litigation in cases
involving ineffectiveness at the change of plea stage, the court summed up the
problem Onamuti faces here:
"In the 25 years since we first applied Strickland to claims of ineffective
assistance at the plea stage, practice has shown that pleas are less frequently the
subject of collateral challenges than convictions obtained after a trial.
account for nearly 95% of all criminal convictions,
approximately 30% of the habeas petitions filed,
Pleas
But they account for only
The nature of relief secured by a
successful collateral challenge to a guilty plea - an opportunity to withdraw the
plea and proceed to trial - imposes its own significant limiting principle:
4
Those
who collaterally attack their guilty pleas lose the benefit of the bargain obtained
as a result of the plea,
Thus, a different calculas informs whether it is wise to
challenge a guilty plea in a habeas proceeding, because ultimately the challenge may
result in a less favorable outcome for the defense, whereas a collateral challenge
to a conviction obtained after a jury trial has no similar downside potential.
Id. (emphasis added).
The Court recently applied the same test in Lee v. United States, 137 S. Ct.
1958 (2017), and noted that prejudice from claimed ineffectiveness at the plea stage
occurs when "his counsel's performance deprived him of a trial by causing him to
accept a plea • • • "
Id.
Thus, the court held that Lee had "adequately demonstrated a
reasonable probability that he would have rejected the plea had he known it would
lead to mandatory deportation."
Onamuti
arguably
led
has
Id.
established
to
not
a
that
his
"counsel's
deficient
performance
judicial proceeding of disputed reliability, but
rather to the forfeiture of a proceeding itself."
Roe v, Flores-Ortega, 528 U.S.
470, 483 (2000), as a "different calculas" applies when an attorney misrepresents an
element of a crime at a change of plea.
Padilla, 559 U.S. at 372.
DISTRICT COURT REASONING
The District Court does not agree that the plea hearing itself is corrupted.
In
fact the court states "Counsel's advice to plead guilty, even to Count 21 (which
will now be vacated) was competent advice under the circumstances."
Onamuti, No.
l:21-cv-01627-JRS-DML, at 7, and again the court commends Onamuti's counsel, stating
"the record reflects that counsel's advice to take the plea deal was excellent
advice."
Id. at 11.
The court clearly has a bias against Onamuti, even commending
ineffective counsel for being ineffective.
The court largely bases its decision and reasoning on United States v. Sprenger,
14 F.4th 785, 791-92 (7th Cir. 2021) and how it distinguishes with United States v.
Bradley,
381 F.3d at 647-48.
Sprenger notes when a defendant enters a plea to
multiple counts and the plea is subsequently invalidated, the court should consider
whether the defendant's plea to the remaining counts should still be valid.
Sprenger, the defendant pled guilty to a four-count indictment,
found guilty pursuant to that plea agreement of Count 1 and 4.
5
In
He was ultimately
They were ran into a
concurrent sentence.
Sprenger appealed, contending that given a recent decision in
United States v. Howard, 968 F.3d 717 (7th Cir. 2020) that there was no longer a
sufficient factual basis to establish he committed the Count 1 offense.
Sprenger
also contended he was entitled to withdraw not just his Count 1 plea, but also his
Count 4 agreement.
Ultimately, his Count 1 factual basis admission was not sufficient to render
The court was left to decide whether the entire plea should be
Count 1 invalid.
vacated.
Sprenger relied on United States v. Bradley, 381 F.3d 641, 645 (7th Cir.
2004) in his attempt to vacate his entire plea.
In Bradley, the Seventh Circuit
found the district court abused its discretion because both parties were mistaken
Id. at 644-46.
about the nature of the § 924(c) charge throughout the plea process.
The court ultimately held that, because there was not a meeting of the minds on all
the essential elements of the § 924(c) charge due to mutual mistake, the defendant
was
entitled
to
intelligently.
withdraw his
Bradley,
§ 924(c)
plea as it was not made knowingly and
The court then concluded that the
381 F.3d at 647-48.
defendant in Bradley was entitled to withdraw his plea to the § 841(a)(1) drug
trafficking offense which was tainted by the § 924(c) plea.
Id. at 648.
the court made this decision because the charges were independent.
In Bradley
Sprenger was not
allowed to withdraw his plea in totality because no interdependence existed between
counts.
The
distinct
District
from
Court
found
that
Onamuti's
Bradley.
But
this
is
circumstances changed at a later date,
case
error,
was like Sprenger*s and was
In
Sprenger,
the
defendant's
The factual basis was actually insufficient
In Bradley, the plea
Count
1.
to
establish
that
he
committed
agreement was rendered invalid once again due to a factual basis argument, again at
a later date.
But Onamuti's counsel failed to advise him of the law as it was at
the time of his plea.
These cases the district court uses much more
reflect the
Supreme Court's decision in Brady, 397 U.S. 742 (1970), which anticipate a change in
the law.
outset.
There was no change in law in Onamuti's case.
He was misadvised from the
At no point can § 287 act as a predicate for § 1028A.
In addition, the District Court likens the remedy to Sprenger, 14 F.4th 785,
791-92 (7th Cir. 2021), as opposed to Bradley, 381 F.3d 641, 645 (7th Cir. 2004).
But once again the court was in error.
interdependence.
The rule established in Bradley is one of
The "Sentencing Package Doctrine" creates a .coherent sentencing
6
package of Interdependent sentences, The reversal of one count may render the
underlying package voidable. United States v. Shue, 825 F.2d 1111, 1114 (7th Gir.
1987) and this "sentencing package doctrine generally applies to sentences with
interdependent consecutive counts, and not to concurrent sentences."
McKeever, 486
F.3d at 87 (2007).
Onamuti's § 1028A aggravated identity theft Count 21 is a consecutive count to
Count 1. Making these sentences interdependent, Onamuti should be entitled to
withdraw his plea, based on the fact alone that his sentence meets the
interdependent, consecutive count necessity for the sentencing package doctrine.
Onamuti's case differs from most cases seeking to withdraw their plea and at minimum
Onamuti is entitled to plenary resentencing on the remaining counts.
7
REASONS FOR GRANTING THE WRIT
Onamuti most be granted plenary resentencing or retrial when an enhancement is
based
on
Onanmti
wishing
unconstitutional count.
to
withdraw his
plea
from what
became
a
vacated
The sentencing hearing must be forfeited.
Onamuti was given an enhancement for obstruction of justice under U.S.S.G.
§ 3C1.1.
That enhancement was based in large part on Onamuti's wish to withdraw his
plea at the sentencing hearing,
Multiple times Onamuti informed the court he was
pleading guilty on counsel's advice (S.T. 114 at 25) (S.T. 130 at 19-20) (S.T. 139
at 17-18) (S.T. 143 at 23-24) (S.T. 150 at 24-25), but did not want to plead guilty.
At multiple points, Onamuti was confused about plea offers in general not being
actual pleas (S.T. 137 at 4)
(confused about Doc. 162)
(S.T. 109) and at points
Onamuti wanted to withdraw his plea and go to trial because he felt his counsel was
ineffective (S.T. 109 at 7) (S.T. 110 at 1) (S.T. 128 at 23-24) (S.T. 137 at 3).
The government noted that Onamuti had previously at the change of plea hearing
raised his hand to plead guilty, and if he lied or changed his plea he would be
guilty of perjury (S.T. 152 at 11-12) and (S.T. 130 at 19-20).
But in Onamuti's case, counsel's deficient performance arguably led not to a
judicial proceeding of disputed reliability, but rather to the forfeiture of a
proceeding
itself."
Flores-Ortega,
528
U.S.
at 483 (2000).
When a defendant
alleges his counsel's performance led him to accept a plea of guilt rather than to
go to trial, the court
should not ask whether, had he gone to trial the result of
the trial or the proceedings "would have been different" than the result of the plea
itself.
That is because the Supreme Court ordinarily "applies a strong presumption
of reliability to judicial proceedings," but the court will not "accord" any such
presumption "to judicial proceedings that never took place."
Id., at 482-483.
The District Court accords just such a presumption to Onamuti's proceedings when
he states "there are no circumstances under which the undersigned would sentence
Onamuti to less than the statutory maximum sentence" (Doc. 27 at 13).
The guilty
plea proceedings and sentencing proceeding should never have taken place.
The
District Court had no jurisdiction to receive a guilty plea on Count 21, nor to
sentence Onamuti for the aggravated identity theft consecutive § 1028A count.
The
deficient performance led not only to a proceeding of disputed reliability, but also
to the "forfeiture to the proceeding itself."
(2000) .
8
Flores-Ortega,
528 U.S • 9 at 483
The District Court granted an obstruction enhancement, but the proceeding that
gave rise to the obstruction enhancement was unreliable and should be forfeited, and
at minimum Onamuti should be returned to his pre-plea position with the option of
either seeking trial or negotiating another plea deal.
9
SEASONS FOR GRANTING THE WRIT
Plenary Resentencing is now mandatory considering the Supreme Court's recent
decision in United States v. Dubln, No, 22-10.
This court has recently addressed a similar issue as that of Onamuti.
In United States v. Dubln, No. 22-10, Petitioner David Dubin was convicted of
healthcare fraud, under 18 U.S.C.
§ 1347.
The question in those proceedings was
whether Dubin also committed aggravated identity theft under § 1028A(a)(l).
Section
§ 1028A applies when a defendant, "during and in relation to any predicate offense
[such as healthcare fraud] knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person."
Ultimately, this court held that under § 1028A(a)(l), a defendant "uses" another
person’s means of identification "in relation to" a predicate offense when the use
is at the crux of what makes the conduct criminal.
Pp. 4-21.
The more targeted
reading of Dubin requires that the use of a means of identification have a "genuine
nexus" to the predicate offense,
In Onamuti's proceeding, the statute itself never
even listed § 287 as a statute where a "genuine nexus" could be made to the
predicate offense.
However,
Dubin,
No.
22-10,
is similar in that the list of
§ 1028A(a) (1)'s
predicate offenses added a severe 2-year mandatory prison sentence onto underlying
offenses
that
do not
impose
any mandatory
prison sentence at all.
Onamuti’s
proceedings heaped upon him a sentence that was never valid and then sought to never
return him to his pre-plea position absent that count.
in the correct remedy when § 1028A(a)(l) is vacated,
Dubin instructs this court
The entire finding of guilt is
vacated as well with a remand to the lower court to correct the error.
10
REASONS FOR GRANTING THE WRIT
The District Court has imposed a sentence in excess of the statutory maximum of
15 years iu violation of Appreudi v. New Jersey, 530 D.S. 466 (2000)
The district court further sentenced Onamuti in excess of the statutory maximum.
Count 12,
§
maximum for
1028(a)(7)
of the indictment far
that offense.
In that,
exceeded the applicable statutory
Count Twelve of the indictment
improperly
charged (in the disjunctive) that Petitioner did "transfer, possess, or use" a means
of identification, in violation of 18 U.S.C. § 1028(a)(7).
Nowhere in Count 12 is
there any reference to Petitioner having "obtained anything of value aggregating
$1,000 or more during a one-year period" as required to trigger the 15-year period
of imprisonment" or "possession or use of 1 or more means of of identification."
See, 18 U.S.C. § 1028(b)(1)(D).
Notably, Onamuti did not either admit to having
obtained anything of value exceeding $1,000 at the time of the guilty plea.
The
statute reads:
§ 1028.
Fraud and related activity in connection with identification documents,
authentication features, and information
(a) Whoever, in a circumstance described in subsection (c) of this section-**(1) knowingly and without lawful authority produces an identification document,
authentication feature, or a false identification document;
(2) knowingly transfers an identification document, authentication feature, or a
false identification document knowing that such document or feature was stolen or
produced without lawful authority;
(3) knowingly possesses with intent to use unlawfully or transfer unlawfully
five or more identification documents (other than those issued lawfully for the use
of the possessor), authentication features, or false identification documents.
(4)
lawfully
knowingly
possesses
for
use
the
of
an
the
identification
possessor),
document
(other
authentication
than
feature,
one issued
or
a
false
identification document, with the intent such document or feature be used to defraud
the United States;
11
(5) knowingly produces, transfers, or possesses a document-making implement or
authentication
feature
with
the
intent
such
document-making
implement
or
authentication feature will be used in the production of a false identification
document or another document-making implement or authentication feature which will
be so used;
(6)
knowingly possesses an identification document or authentication feature
that is or appears to be an identification document or authentication feature of the
United States or a sponsoring entity of an event designated as a special event of
national significance which is stolen or produced without lawful authority knowing
that such document or feature was stolen or produced without such authority;
(7) knowingly transfers, possesses, or uses, without lawful authority, a means
of identification of another person with the intent to commit, or to aid or abet, or
in connection with, any unlawful activity that constitutes a violation of Federal
law, or that constitutes a felony under any applicable State or local law; or
(8) knowingly traffics in false or actual authentication features for use in
false
identification
documents,
document-making
implements,
or
means
of
identification;
shall be punished as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is—
(1) except as provided in paragraphs (3) and (4), a fine under this title or
imprisonment for not more than 15 years, or both, if the offense is—
(A)
the production or transfer of an identification document, authentication
feature, or false identification document that is or appears to be—
(i) an identification document or authentication feature issued by or under the
authority of the United States; or
(ii) a birth certificate, or a driver's license or personal identification card;
12
(B)
the production or transfer of more than five identification documents,
authentication features, or false identification documents;
(C) an offense under paragraph (5) of such subsection; or
(D)
an offense
under
paragraph
(7)
of
such
subsection
that
involves
the
transfer, possession, or use of 1 or more means of identification if, as a result of
the
offense,
any
individual
committing
the
offense
obtains
anything
of
value
aggregating $1,000 or more during any 1-year period;
(2) except as provided in paragraphs (3) and (4), a fine under this title or
imprisonment for not more than 5 years, or both, if the offense is—
(A)
any other production, transfer, or use of a means of identification, an
identification
document,[,]
authentication
features,
or
a
false
identification
document; or
(B) an offense under paragraph (3) or (7) of such subsection.
Section
(b)
of § 1028 is known as the penalty provision, and the five year
maximum is under Section (b)(2).
In order to be found guilty of 18 U.S.C. § 1028(a)(7), a defendant would need to
admit in a plea colloquy or be found guilty in a jury trial of:
(7) knowingly transfers, possesses, or uses, without lawful authority, a means
of identification of another person with the intent to commit, or to aid or abet, or
in connection with, any unlawful activity that constitutes a violation of Federal
law, or that constitutes a felony under any applicable State or local law.
The five year statutory maximum variety is found in § 1028(b)(2)(B).
In Onamuti's Guilty plea (Document 186 at 2-3), the elements admitted pertaining
to Count 12 were as follows:
13
Count 12
First,
the
defendant knowingly possessed or used a means of identification of
another person;
Second,
the defendant knew that the means of identification belonged to another
person;
Third, the defendant acted with the intent to commit, or aid or abet, in connection
with any unlawful activity that constitutes a violation of federal law; namely,
present a false claim to the Internal Revenue Service;
Fourth, the defendant acted without lawful authority; and
Fifth, the transfer, possession, or use of the means of identification occurred in
or
affected
interstate or foreign commerce or the means of identification was
transported in the mail.
(Document 186 at 2-3).
Onamuti simply did not admit to any element that triggers the 15 years statutory
maximum.
There was no admission to a "use of 1 or more means of identification,"
nor is there an admission of obtaining "anything of value aggregating $1,000 or more
during a 1-year period."
Onamuti did however admit to the § 1028(b)(2)(B), which refers to an offense
under paragraph (3) or (7) of such subsection and presumably the elements therein.
ELEMENTS OF THE OFFENSE
Even for guilty pleas, Fifth Amendment due process requires that the Government
prove beyond a reasonable doubt every element of the crime which the defendant is
charged.
In Re Winship, 397 U.S. 358, 364 (1970).
Here, the Government merely
proved that Onamuti admitted the elements to the 5-year statutory maximum variety
sentence and not the harsher 15-year, under § 1028(b)(1)(D).
The law would require
the admission of "more than 1 means of identification" and that the defendant
committing the offense obtains "anything of value aggregating $1,000 or more during
a 1-year period."
Neither element was admitted.
14
Due process also requires that for a guilty plea to be valid, it must be made
Brady v. United States, 397 U.S. 742,
voluntarily, intelligently, and knowingly.
Rule 11 of the Federal Rules of Criminal Procedure requires the same
747 (1970).
Unaware that § 1028(a)(7)'s 15 year statutory maximum also
exacting standard.
required an admission of "use of 1 or more means of identification" and "obtaining
anything of value aggregating $1,000 or more during any 1-year period" and the
transfer thereof, Onamuti's plea could not be valid in regard to these counts nor
voluntary, intelligent, nor knowing.
(1969)
McKarthy v. United States, 394 U.S. 459, 466
("Because a guilty plea is an admission of all the elements of a formal
criminal
it
change,
cannot
be
voluntary
unless
the
defendant
possesses
an
constituted
an
understanding of the law in relation to the facts.")
A
guilty
plea
cannot
"be
voluntary
in
the
sense
that
it
intelligent admission that the defendant committed the offense unless the defendant
received real notice of the true nature of the charges against him, the first and
most universally recognized requirements of due process." Henderson v. Morgan, 426
U.S. 637, 645 (1976).
ONAMUTI'S SENTENCE EXCEEDS THE STATUTORY MAXIMUM
The Supreme Court of the United States of America has found in Apprendi v. New
Jersey, 530 U.S. 466 (2000) that any fact that increases the penalty for a crime
beyond the prescribed statutory maximum—-other than the fact of a prior conviction—
Apprendi's
must be submitted to a jury and proven beyond a reasonable doubt,
premises are rooted in that, the Sixth Amendment and the Due Process Clause of the
Fifth Amendment,
taken together,
indisputably entitle a criminal defendant to a
determination that "he is guilty of every element of the crime with which he is
charged."
Id. at 476-477.
Absent a knowing and voluntary waiver that requires such
facts to be submitted to a jury, Blakely v. Washington, 542 U.S. 296 (2004), the
court is under constraint to ensure a criminal defendant's rights are protected.
Here the court is presented with a clear Apprendi error.
In Apprendi the court
was faced with whether a 12 year sentence was permissible when the statutory maximum
was 10 years. Here, Onamuti did not admit to the elements necessary to move his
case from the run-of-the-mill 5-year statutory maximum in § 1028(b)(2)(B) to the
harsher § 1028(b)(1)(D) 15-year statutory maximum sentence, Absent an admission of
the elements or a waiver of his rights in regard to Count 12, the Court is bound to
vacate Count 12 for its exceeding the 5-year statutory maximum.
15
CONCLUSION
A guilty plea must either be completely knowing and voluntary, or not knowing
and voluntary at all,
When Onamuti was incorrectly advised about a point of law,
pre-plea, his case was set apart from the heartland, run-of-the-mill challenge to
pleas.
He cannot be partially intelligent about the nature of the charges against
him, which is what the remedy the District Court has held would imply by only
excising one count from the sentencing package,
The proceeding ineffected with an
unintelligent plea must be forfeited and Onamuti returned to a pre-plea position.
The District Court’s reasoning for not granting full plenary resentencing falls
flat.
When this court considers precedent in the Seventh Circuit that involves the
court's failure to illicit a correct factual basis in light of new precedent, versus
a case like Onamuti's where the issue is the failure of counsel at plea to know the
law, the government at the indictment stage to abide by the law, and the court in
accepting a plea to a Count 21 it had no jurisdiction to receive.
In addition,
this Court must consider this body's recent decision in Dubin,
which allows for the entire finding of guilt to be vacated when considering the
nexus/predicate nature of aggravated identity theft charges in relation to their
predicates.
Finally, the district court violated Apprendi, 530 U.S. 466 (2000) by sentencing
Onamuti in excess of the statutory maximum.
United States v. Villereal, 253 F.3d
831 (5th Cir. 2001).
Respectfully^,_____
Taiwo Onamuti #69971-019
FCC Coleman Medium
P.0. Box 1032
Coleman, Florida 33521-1032
Date
16
IN THE SUPREME COURT OF THE UNITED STATES
Taiwo Onamuti,
Petitioner,
v.
United States of America,
Respondent.
On Petition For Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit
Certificate of Service
Taiwo Ouamuti
Reg. No. 69971-019
FCC Coleman Medium
P.0. Box 1032
Coleman, Florida 33521-1032
Phone Number: N/A
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.