United States District Court, D. Oregon, Medford Division
OPINION & ORDER
AIKEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Oluwamuyiwa Abolad
Olawoye's Motion to Vacate or Correct Sentence pursuant
to 28 U.S.C. § 2255. ECF No. 337. 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
2015, Olawoye was indicted, along with a number of
co-conspirators, for his role in a wide-ranging fraud and
identity theft scheme. The conspiracy involved both indicted
and unindicted co-conspirators and participants. Olawoye 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).
time of Olawoye's first appearance, Magistrate Judge Mark
Clarke appointed attorney Robert Stone to represent Olawoye.
ECF No. 36. On July 6, 2015, Olawoye retained attorney Jay
Frank, who replaced Stone as Olawoye's counsel. ECF No.
59. On September 18, 2015, Frank withdrew as Olawoye's
attorney and Stone was re-appointed as counsel for Olawoye.
ECF Nos. 83, 85. Over a year later, on January 4, 2017,
Olawoye retained Larry Roloff to serve as his attorney. ECF
No. 123. Given the complexity of the case and the volume of
discovery materials, Roloff sought and received continuances
in order to get up to speed on Olawoye's case, ECF Nos.
2017, shortly before trial was set to begin, Olawoye entered
into a plea agreement with the Government. ECF No. 201.
Pursuant to the plea agreement, Olawoye agreed to plead
guilty to Conspiracy to Commit Mail and Wire Fraud (Count 1),
Mail Fraud (Count 6), Wire Fraud (Count 11), and three counts
of Aggravated Identity Theft (Counts 18, 19, and 24). In
exchange, the Government agreed to drop the remaining counts.
For purposes of Olawoye's sentencing guidelines, the
parties agreed that the base offense level for Count 1 was
seven prior to adjustments and that Olawoye would receive a
two-level enhancement for more than ten victims and a
two-level enhancement for the use of sophisticated means. The
Government agreed to recommend a three-level reduction for
acceptance of responsibility. The parties also agreed that
the amount of loss and the application of any role adjustment
would be determined by the Court at the time of sentencing.
of his plea agreement, Olawoye agreed to waive the right to
appeal from any aspect of his conviction or sentence except
for a claim that "(1) the sentence imposed exceeds the
statutory maximum, or (2) the Court arrive [d] at an advisory
sentencing guideline range by applying an upward departure
under the provisions of Guideline Chapter 5K." Olawoye
further waived his right to file any collateral attack
on his conviction or sentence, including a motion
under 28 U.S.C. § 2255, on any grounds other than
ineffective assistance of counsel.
24, 2017, Judge Clarke accepted Olawoye's guilty plea
pursuant to the plea agreement and ordered that a presentence
report ("PSR") be prepared. ECF No. 199. The matter
was then referred to this Court for sentencing.
recommended the same initial base offense level and
adjustments for number of victims, use of sophisticated
means, and acceptance of responsibility as contemplated by
the plea agreement. With respect to the amount of loss, the
PSR found that Olawoye was responsible for over $11 million,
resulting in a twenty-level increase pursuant to U.S.S.G.
§ 2B1.1(b)(1)(K). The PSR also noted Olawoye's
active role in the conspiracy and listed several instances in
which Olawoye had instructed both his co-defendants and
unindicted co-conspirators on aspects of the fraud scheme. As
a consequence, the PSR recommended a two-level enhancement
for Olawoye's leadership role pursuant to U.S.S.G. §
applying all adjustments, the PSR calculated Olawoye's
total offense level as 30, with criminal history category I,
yielding an advisory guidelines range of 97 to 121 months.
Olawoye was also subject to a mandatory 24-month consecutive
sentence for Aggravated Identity Theft pursuant to 18 U.S.C.
§ 1028A. As sentencing courts are prohibited from
reducing the underlying sentence to account for the mandatory
consecutive sentence under § 1028A(b), Olawoye faced a
total sentence of between 121 and 145 months. Olawoye also
faced likely deportation to Nigeria upon completion of his
term of incarceration.
sentencing hearing was held on April 30, 2018. ECF No. 265,
At the time of sentencing, the Government agreed with the
PSR's findings and recommended a low-end sentence of 97
months, combined with the mandatory 24-month consecutive
sentence for a total of 121 months. Sentencing Tr., at 11,
ECF No. 292. Roloff argued against the imposition of a
leadership role enhancement, citing to Olawoye's
low-status role within the wider conspiracy and to an expert
psychologist's report on Olawoye's personality,
Sentencing Tr. 15-22; Def. Sentencing Mem. ECF No. 342. The
Court also heard from Olawoye himself, who described his role
in the conspiracy at some length. Sentencing Tr, 28-41,
60-64. In particular, Olawoye objected to any description of
himself as a leader or holding a leadership role in the
conspiracy. Sentencing Tr. 60-64.
reviewing the record and hearing from the parties, the Court
determined that Olawoye's total offense level was 30,
which included a two-level enhancement for a leadership role.
Sentencing Tr. 54. After reviewing the factors laid out in 18
U.S.C. § 3553(a), the Court departed downward from
Olawoye's guidelines range and imposed a sentence of 84
months on Counts 1, 6, and 11, with a consecutive sentence of
24 months for Counts 18, 19, and 24. Sentencing Tr. 56-57. In
total, Olawoye was sentenced to 108 months, followed by a
three-year term of supervised release and $3, 257, 025.00 in
restitution. ECF No. 301.
9, 2018, Olawoye filed Notices of Appeal on his own behalf.
ECF Nos. 269, 270. Roloff withdraw as counsel for Olawoye and
the Court appointed appellate counsel to replace him. ECF
Nos. 272, 279, 280, 283. On October 5, 2018, Olawoye
voluntarily dismissed his appeal. ECF No. 333. The present
28 U.S.C. § 2255, a federal prisoner in custody under
sentence may move the court that imposed the sentence to
vacate, set aside, ...