USA. v. Hamzat

Citation217 F.3d 494
Decision Date26 June 2000
Docket NumberNos. 97-1987,97-2541,98-3839,s. 97-1987
Parties(7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Akanni Hamzat, et al., Defendants-Appellants
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 523--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Bauer and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Akanni Hamzat, Adetoro Adeniji, and Sunny Emezuo were involved in a major way during the early 1990s with trafficking in heroin between Nigeria, Thailand, and the United States. Led by Omobola Adegbite (known as "Bola"), a woman who lived in Merrillville, Indiana, the ring involved nearly twenty people.

Hamzat, Adeniji, and Emezuo, the three defendants before us in these appeals, worked for Bola in various capacities. Hamzat, who met Bola when he was dating her sister, was a courier. On Bola's instructions and over the course of multiple deliveries, he personally transported 6.8 kilograms of heroin. (The entire conspiracy involved 60 kilograms.) Hamzat also assisted Bola in conveying payments by wire transfer to Bola's overseas suppliers. She paid him on a per-transaction basis, rather than in some way tied to the drug profits. Hamzat pleaded guilty under a plea agreement to one count of conspiracy to distribute heroin, in violation of 21 U.S.C. sec. 846. He was sentenced to 97 months in prison and five years' supervised release.

After meeting Bola at a birthday party for Bola's twins, Adeniji was recruited to serve as a "go-between" for Bola and Adeniji's brother-in-law, a drug dealer. Between 1993 and 1995, she repeatedly purchased heroin from Bola in quantities of at least 100 grams, which she then gave to her brother-in-law. Sometimes she purchased on credit. Adeniji chose to plead not guilty and go to trial; the result was convictions on charges of conspiracy to distribute heroin, 21 U.S.C. sec. 846, use of the telephone to facilitate distribution of heroin, 21 U.S.C. sec. 843(b), and possession with intent to distribute heroin, 21 U.S.C. sec. 841(a)(1). Her sentence was for 121 months in prison, a fine of $5,000, and five years' supervised release.

Emezuo was one of Bola's Bangkok-based suppliers. He helped another supplier, Mutitat Titilola Olubi ("Titi") procure heroin for shipment to the United States, which they packaged and hid in luggage to avoid detection. He was paid in several ways: he invested in portions of the heroin shipments and received a balance of the proceeds, he accepted from Bola an expensive watch and a 1995 Acura, and he handled wire transfers of U.S. currency that he knew constituted payment for heroin. After extensive negotiations, he was unable to obtain a plea agreement. On the day trial was to begin, he entered a blind plea of guilty to one count of conspiracy to possess with intent to deliver, in violation of 21 U.S.C. sec. 846, and received a sentence of 145 months in prison, a fine of $2,500, plus, once again, five years' supervised release.

Hamzat and Adeniji appeal various aspects of their sentences. Emezuo's appellate attorney has filed an Anders brief and asked to withdraw. Responding to the Anders brief, Emezuo asks us to find that his trial counsel was ineffective and that this ineffectiveness had a negative effect on his sentence.

A. Akanni Hamzat
1. Minor or Minimal Role in the Offense.

Hamzat first argues that his insignificant role in the offense entitles him to a reduction in his offense level under U.S.S.G. sec. 3B1.2. He characterizes himself as a mere "errand-runner" who made deliveries as ordered by Bola, with no decision-making role and no connection between his own earnings and the success of the conspiracy. A determination of the defendant's role in the offense is "heavily dependent upon the facts of the particular case," U.S.S.G. sec. 3B1.2 Background Note, and we accordingly review the district court's findings for clear error. United States v. Nobles, 69 F.3d 172, 189-90 (7th Cir. 1995).

Section 3B1.2 provides for a four-level reduction if the defendant can show that he was a "minimal participant" in the offense, which is defined as someone "plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. sec. 3B1.2, Application Note 1. Section 3B1.2 allows a two-level reduction if the defendant can show that he was a "minor participant" in his offense, "less culpable than most other participants." U.S.S.G. sec. 3B1.2, Application Note 3. A three-level reduction is allowed if the defendant falls between a minor and minimal participant. To receive an offense level reduction under sec. 3B1.2, a defendant must demonstrate she was "substantially less culpable than the conspiracy's other participants." United States v. Soto, 48 F.3d 1415, 1425 (7th Cir. 1995), quoting United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993).

Hamzat claims that he played a minor role because he was charged with only the 6.8 kilograms he actually delivered (and not the 60 kilograms attributable to the conspiracy). Unfortunately for him, this fact virtually dooms his effort to receive the downward adjustment he seeks. This circuit follows the rule that where a defendant is sentenced only for the amount of drugs he handled, he is not entitled to a sec. 3B1.2 reduction. United States v. Burnett, 66 F.3d 137, 140 (7th Cir. 1995). "When a courier is held accountable for only the amounts he carries, he plays a significant rather than a minor role in that offense." Id.; see also United States v. Cobblah, 118 F.3d 549, 552 (7th Cir. 1997); United States v. Uriostegui-Estrada, 86 F.3d 87, 90 (7th Cir. 1996); United States v. Lampkins, 47 F.3d 175, 181 & n.3 (7th Cir. 1995).

We are aware, of course, that not all circuits have embraced our approach to mitigating role reductions. See, e.g., United States v. Isaza-Zapata, 148 F.3d 236, 241 (3d Cir. 1998) (rejecting the approach taken in Burnett and Lampkins); United States v. Snoddy, 139 F.3d 1224, 1231 (8th Cir. 1998); United States v. Demers, 13 F.3d 1381, 1383-84 (9th Cir. 1994). On the other hand, the Burnett approach has other adherents. See United States v. Rodriguez de Varon, 175 F.3d 930, 941-44 (11th Cir. 1999) (en banc), cert. denied 120 S. Ct. 424 (1999) (No. 99-6150); United States v. James, 157 F.3d 1218, 1220 (10th Cir. 1998); United States v. Marmolejo, 106 F.3d 1213, 1217 (5th Cir. 1997); United States v. Lewis, 93 F.3d 1075, 1085 (2d Cir. 1996); United States v. Olibrices, 979 F.2d 1557, 1560- 61 (D.C. Cir. 1992).

The circuits that have rejected our mode of analysis take the position that the Guidelines require the district court to "examine all relevant conduct, not merely the defendant's, in assessing his relative culpability." Isaza-Zapata, 148 F.3d at 241. The minor or minimal participant reduction then operates with reference to that much greater starting point. Here, the relevant conduct was arguably 60 kilograms, which yields an offense level of 38 for someone like Hamzat with a Criminal History Category of I. Unadjusted, the sentencing range for such a person is 235-293 months, but even with a 4-level downward adjustment to a level 34, the range is still 151-188 months, considerably more than the 97 months Hamzat received. Thus, it is clear that some defendants would be far worse off under the rule adopted by some of our sister circuits. Our approach simply takes a strict view of the offense charged and the "reasonable foreseeability" of other activity, but then holds the defendant fully responsible for what he or she actually did. We think this is a defensible reading of the Guidelines, and we are not inclined to change it here.

Second, Hamzat argues that he was a mere "errand-runner" who made deliveries under the order of Adegbite. Even if Hamzat was "just" a courier, we have noted before that couriers play an important role in any drug distribution scheme and therefore are not automatically entitled to a mitigating role reduction. United States v. Osborne, 931 F.2d 1139, 1158 (7th Cir. 1991), quoting United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). See also Uriostegui-Estrada, 86 F.3d at 89-90. Hamzat repeatedly did jobs for Bola, not only carrying drugs but assisting her with wire transfers of drug money. Given the extent of his involvement, the district court properly denied Hamzat a mitigating role reduction.

2. Acceptance of Responsibility.

Hamzat received a two-level reduction for acceptance of responsibility under U.S.S.G. sec. 3E1.1(a). Not content with that, he urges here that he should have received the additional one-level reduction possible under sec. 3E1.1(b). The extra level can be awarded if the defendant qualifies for the sec. 3E1.1(a) reduction, the defendant's offense level is 16 or greater, and the defendant either provided complete information to the government in a timely fashion or alerted the government in time to his intention to enter a plea of guilty, so that the prosecution and court could save their own resources.

The district court concluded that Hamzat waited too long to enter his guilty plea to warrant the additional reduction. This finding (a quintessential question of judgment for the court) was not clearly erroneous. Hamzat did not enter his plea until three days after the original trial date, and one week before the rescheduled date. He has attempted to excuse the last-minute nature of the plea by arguing that he delayed only because his lawyers were trying to work out the best deal possible. The government had known for some time that he wanted to plead guilty, and he sees no reason why he should be penalized for hard negotiations. Further more, he suggests, the government was not prejudiced by the last-minute nature of his plea, because it had to prepare to try his...

To continue reading

Request your trial
23 cases
  • Jennings v. U.S.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • 26 Septiembre 2006
    ...U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Schuh, 289 F.3d 968, 976 (7th Cir.2001); United States v. Hamzat, 217 F.3d 494, 501 (7th Cir. 2000). In this instance, the grounds for Jennings's section 2255 motion, none of which were raised on direct appeal, are couc......
  • U.S. v. Olson, 01-1772.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 12 Mayo 2006
    ...calculation of the quantity of drugs involved in the offense is a finding of fact reviewed for clear error. United States v. Hamzat, 217 F.3d 494, 499 (7th Cir.2000). As the government points out, other witnesses provided testimony that supported the court's findings about the amount of dru......
  • U.S. v. Hendricks, 02-2693.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 21 Febrero 2003
    ...denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.' United States v. Hamzat, 217 F.3d 494, 500 (7th Cir.2000) (quoting U.S.S.G. § 3E1.1 Application Note 2); see also Cunningham, 103 F.3d at 598 (stating that a reduction for accep......
  • Ellzey v. U.S.
    • United States
    • United States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
    • 8 Julio 2002
    ...who cooperate and those who must be convicted at trial are not grounds for a downward departure at sentencing. United States v. Hamzat, 217 F.3d 494, 500 (7th Cir.2000) ("Such justifiable disparities in sentencing are not a proper basis for a downward departure."). The court therefore would......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT