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United States v. Olawoye

United States District Court, D. Oregon, Medford Division

February 28, 2019


          OPINION & ORDER


         The 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 required.


         In May 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).

         At the 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. 125, 136.

         In July 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.

         As part 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.

         On July 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.

         The PSR 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. § 3B1.1(c).

         After 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.

         Olawoye's 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.

         After 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.

         On May 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 motion followed.


         Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, ...

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