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United States v. Osanyinbi

United States District Court, D. Oregon, Medford Division

February 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
OLUWASEUNARA TEMITOPE OSANYINBI, Defendant.

          OPINION & ORDER

          ANN AIKEN, DISTRICT JUDGE.

         The matter comes before the Court on Defendant Oluswaseunara Temitope Osanyinbi's Motion to Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 248. For the reasons set forth below, Defendant's motion under § 2255 is DENIED. Because the motion and record conclusively show that Defendant is entitled to no relief, no evidentiary hearing is required.

         BACKGROUND

         In May 2015, Osanyinbi was indicted, along with a number of co-conspirators, for his role in a wide-ranging fraud and identity theft scheme. Osanyinbi and his codefendants were charged with a single count of Conspiracy to Commit Mail and Wire Fraud (Count 1), seven counts of Mail Fraud (Counts 2-8), six counts of Wire Fraud (Counts 9-14), and thirteen counts of Aggravated Identity Theft (Counts 15-27). Osanyinbi retained attorney Lauren Regan to represent him.

         In December 2016, Osanyinbi entered into a plea agreement with the Government. Under the agreement, Osanyinbi would plead guilty to a single count each of Conspiracy to Commit Mail and Wire Fraud (Count 1), Mail Fraud (Count 7), and Wire Fraud (Count 12), as well as four counts of Aggravated Identity Theft (Counts 18, 19, 25, and 26), with the Government agreeing to dismiss the remaining counts of the indictment. ECF No. 121.

         With respect to the sentencing guidelines, the parties agreed that Count 1 had a base offense level of seven prior to adjustments, with a two-level enhancement for ten or more victims and a two-level enhancement for use of sophisticated means. The parties also agreed that the amount of loss involved in the offense was greater than $550, 000, but less than $9, 500, 000 and that the Court would determine the precise amount of loss at the time of sentencing. Depending on the amount of loss, the parties agreed that Osanyinbi's base offense level would be enhanced by between fourteen and eighteen levels. The parties also agreed that Osanyinbi's base offense level would be reduced by three for acceptance of responsibility.

         The Government agreed that it would recommend a sentence within the applicable guideline range to be consecutive to each mandatory two-year term of imprisonment for the four counts of Aggravated Identity Theft.[1] The parties agreed that the Government was free to seek consecutive sentences for each of the Aggravated Identity Theft counts and that Osanyinbi was free to oppose such a request. As discussed below, the Government ultimately recommended that the sentences for Aggravated Identity Theft run concurrent to one another and consecutive to the sentences imposed for fraud and conspiracy.

         As part of the agreement, Osanyinbi waived any right to appeal his conviction and sentence on any ground "except for a claim that: (1) the sentence imposed exceeds the statutory maximum, or (2) the court arrives at an advisory guideline range by applying an upward departure under the provisions of Guideline Chapter 5K." Similarly, Osanyinbi waived any right to file a collateral attack on his conviction or sentence, including a motion under § 2255, on any grounds other than ineffective assistance of counsel.

         On December 19, 2016, Magistrate Judge Mark Clarke accepted Osanyinbi's guilty plea pursuant to the plea agreement. ECF No. 119. Judge Clarke ordered that a presentence report ("PSR") be prepared and the case was referred to this Court for sentencing.

         Consistent with the plea agreement, the PSR found Osanyinbi's base offense level was seven, with a two-level increase for more than ten victims pursuant to U, S.S.G. § 2B 1.1 (b)(2)(A), and a two-level increase for use of sophisticated means pursuant to § 2B1.1(b)(10)(C). The PSR found that Osanyinbi was responsible for approximately $2 million in losses for his role in the conspiracy and recommended a sixteen-level enhancement to Osanyinbi's offense level pursuant to§2Bl.l(b)(1)(I).

         Although U.S.S.G. § 3B1.2 provides for a two-to-four-level reduction for minimal or minor roles, the probation office was "unaware of any evidence indicating that [Osanyinbi's] conduct was especially limited or that his action were managed, directed, or overseen by others in a manner that may warrant a role reduction." As such, no reduction was recommended for a minor or minimal role.

         The PSR recommended a three-level reduction for acceptance of responsibility, for a total offense level of 24 and a criminal history category of I. As such, Osanyinbi's guideline range was 51 to 63 months, with an additional 24 months for the Aggravated Identity Theft counts.

         The Government concurred with the PSR's calculation of Osanyinbi's total offense level and guidelines range. ECF No. 142. The Government recommended a sentence of 75 months, reflecting the low end of Osanyinbi's guidelines range with the sentences for all four counts of Aggravated Identity Theft running concurrent with one another and consecutive to the sentences for conspiracy and fraud.

         In his sentencing memorandum, Osanyinbi argued that he was responsible for less than $1.5 million in losses and so his offense level should be enhanced by fourteen rather than sixteen levels. ECF No. 149. Osanyinbi argued for a two-to-four-level reduction for a minimal or minor role and for additional downward departures pursuant to U.S.S.G. §§ 5K2A and 5K2.20. If the requested adjustments and departures were granted, Osanyinbi's total offense level would have been 14 with a guidelines range of 15-21 months, with a consecutive sentence of 24 months for the Aggravated Identity Theft counts.

         A sentencing hearing was held on May 18, 2017. ECF Nos. 151, 162, 300. During the sentencing hearing, the Government called witnesses who testified as to the amount of loss and Osanyinbi's role in the conspiracy, Those witnesses were cross-examined by Osanyinbi's counsel. The Court heard argument from the attorneys, as well as a prepared statement from Osanyinbi himself. At the conclusion of the hearing, the Court held that Osanyinbi's total offense level was 24 with a criminal history of I and a guidelines range of 51 to 63 months. After considering the factors set forth in 18 U.S.C. § 3553(a), the Court imposed a below-guidelines sentence of 48 months on Counts 1, 7, and 12. The Court also imposed the mandatory sentence of 24 months for Counts 18, 19, 25, and 26 to run concurrent with one another and consecutive to the sentence imposed on Counts 1, 7, and 12 for a total sentence of 72 months followed by a three-year term, of supervised release and restitution in the amount of $876, 161.00.[2]

         The Court advised Osanyinbi that he had waived his appeal rights as part of his plea agreement, but that if he wished to file a Notice of Appeal, he would be permitted to do so. Osanyinbi acknowledged that he ...


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