Adegoke v. United States
| Decision Date | 20 March 2019 |
| Docket Number | 15-cr-38-jdp,18-cv-815-jdp |
| Parties | MICHAEL ADEGOKE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Wisconsin |
Michael Adegoke has filed a petition under 28 U.S.C. § 2255 to challenge the sentence he received after he pleaded guilty to wire fraud. He contends that his counsel was constitutionally ineffective by failing to raise several issues during sentencing, including that some victims' financial losses should not have been considered because they were not reasonably foreseeable.
Adegoke also filed a separate document that he calls "Request to Take Judicial Notice of Adjudicative Facts" in which he contends that he has "prima facie evidence" that the court lacked subject matter jurisdiction over him. Dkt. 262.1 I will construe the second document as a supplement to Adegoke's petition. Finally, Adegoke has filed what I construe as a motion to file a late reply brief, No. 18-cv-815-jdp, Dkt. 11, along with the brief.
I will grant the motion to file the late brief, but I will deny Adoegoke's petition and supplement. Adegoke has failed to show that he received ineffective assistance of counsel or that the court lacked jurisdiction over him.
This case arises out of a conspiracy involving a "romance fraud scheme." Adegoke and other members of the conspiracy—including Sally Iriri, Richard Ugbah, and John Whipple—expressed romantic interest in victims on dating sites, gained the victims' trust, and then defrauded the victims out of money in various ways. In March 2017, Adegoke pleaded guilty to conspiracy to commit wire fraud.
The original presentence report attributed $2.9 million of losses to Adegoke. Dkt. 175, Appx. B. In response to Adegoke's objections to the report, the government conceded that approximately $650,000 should not be attributed to Adegoke. Dkt. 187. An amended presentence report attributed $2.3 million in losses to Adegoke.
At the sentencing hearing, I sustained additional objections to some of the losses attributed to Adegoke and I overruled others. I found that Adegoke was responsible for $1.9 million in losses. As a result, Adegoke's advisory guideline range was 78-97 months. I then considered the factors in 18 U.S.C. § 3553(a) and imposed a sentence to reflect those factors. First, I imposed a 23-month upward departure for impact to the victims, as I had with Iriri. Second, I imposed a 24-month upward variance for Adegoke's greater culpability in the conspiracy as compared to Iriri. Ultimately, I sentenced Adegoke to a term of imprisonment of 144 months.
Adegoke filed a notice of appeal, but the court of appeals later granted his motion to dismiss the appeal.
Adegoke's primary contention is that his counsel provided constitutionally ineffective assistance by failing to object at sentencing to certain victim losses attributed to Adegoke in the presentence report.2 He also says that counsel failed to investigate and submit mitigating evidence related to Adegoke's role in the offense and his conduct after the offense.3
A claim for ineffective assistance has two elements: deficient performance and prejudice. Brown v. Finnan, 598 F.3d 416, 422 (7th Cir. 2010). Performance is measured under an objective standard: whether counsel's conduct "fell outside the wide range of competent representation." Swanson v. United States, 692 F.3d 708, 714 (7th Cir. 2012). It is not enough to show that counsel "deviated from best practices or most common custom." Harris v. Thompson, 698 F.3d 609, 640 (7th Cir. 2012). (internal quotations omitted). And there is a "strong presumption that counsel's conduct falls within the wide range of reasonableprofessional assistance." Brady v. Pfister, 711 F.3d 818, 823 (7th Cir. 2013). To satisfy the prejudice element in the sentencing context, Adegoke must show that there is "a reasonable probability" that he would have received a lighter sentence but for counsel's alleged errors. Griffin v. Pierce, 622 F.3d 831, 844 (7th Cir. 2010).
Under the Sentencing Guidelines, the amount of pecuniary loss resulting from the defendant's crime affects his offense level. United States v. Sykes, 774 F.3d 1145, 1149-50 (7th Cir. 2014). Because Adegoke was convicted of a conspiracy, "[t]he loss amount calculation includes losses based not only on the defendant's own actions but also the actions of co-schemers, if those actions were 'within the scope of,' 'in furtherance of,' and 'reasonably foreseeable in connection with' the jointly undertaken criminal activity, and 'occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.'" United States v. White, 883 F.3d 983, 987-88 (7th Cir. 2018) (citations omitted).
The question Adegoke raises is whether his counsel should have argued that certain losses were not "reasonably foreseeable" to Adegoke. Specifically, he says that counsel failed to properly object to approximately $600,000 in losses related to 12 different victims. According to Adegoke, this was prejudicial because subtracting those losses would have changed his base offense level from 16 to 14, changing his advisory guidelines range from 78-97 to 63-78 months.
I am not persuaded that Adegoke was deprived of the right to effective assistance of counsel on this issue. As for deficient performance, counsel did raise objections as to losses suffered by 3 of the 12 victims included in Adegoke's petition—PNR, MH, and MM—and onessentially the same grounds that Adegoke is asserting now, see Dkt. 184, something that Adegoke ignores in his opening brief. In his reply brief, Adegoke goes into more detail about what he believes counsel should have argued as to PNR, MH, and MM, but these are just quibbles. Counsel's arguments were more than adequate to preserve the objections for appeal, so they were "not outside the wide range of professionally competent assistance." See Swanson v. United States, 692 F.3d 708, 715 (7th Cir. 2012) (internal quotations omitted) (no deficient performance when "[t]he written objection (though perhaps not elaborate) was sufficient to raise an argument that the government had not shown that [the defendant's] criminal activity either involved 'five or more participants' or was 'otherwise extensive'").
As for C.B.'s losses, Adegoke says that they were not reasonably foreseeable because they were incurred before he joined the scheme related to her.4 But he doesn't cite any evidence or even provide specific allegations that would support that conclusory statement and he doesn't identify any reason that his counsel should have known to object on that ground. Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (). And the evidence presented to the court shows that Adegoke was informed of the scamming of C.B. and that Iriri and Ugbah emailed Adegoke about ??? the proceeds (although they ultimately used someone else).
Adegoke's argument about the losses of the remaining eight victims is that counsel should have objected to losses when Adegoke was not the "job owner" (the person communicating with the victim) and the money obtained from the victim wasn't deposited in the accounts of Sally Iriri (a co-defendant and Adegoke's ex-wife) or S.G. (one of the victims).But Adegoke is confusing knowledge with foreseeability. A loss may be reasonably foreseeable even if the defendant doesn't know about a coconspirator's actions, doesn't interact with that coconspirator, or even know who the coconspirator is. United States v. Sykes, 774 F.3d 1145, 1151 (7th Cir. 2014). Rather, a court can determine reasonable foreseeability based on whether the defendant demonstrated a substantial degree of commitment to the conspiracy's objectives, either through his words or his conduct. Id. Adegoke does not acknowledge this standard, let alone develop an argument that the government failed to meet it, so he has not shown that counsel performed deficiently by failing to raise these objections.
Adegoke has failed to show deficient performance, so it would not be necessary to consider prejudice. But Adegoke would fail the prejudice part of the test as well.
A threshold question related to any potential prejudice is which version of the guidelines should apply. This is potentially important because different versions of the guidelines could lead to different results. The government says that the 2013 version should apply because that is the version that was in effect when Adegoke committed the crime. Under that version, any loss between $1 million and $2.5 million results in a 16-level increase. U.S.S.G. § 2B1.1(I) (2013 ed.). Adegoke says that the 2016 version should apply because that was the version in effect when he was sentenced. Under that version, a loss of $1.5 million to $3.5 million results in a 16-level increase; a loss of $550,000 to $1.5 million results in a 14-level increase. U.S.S.G. § 2B1.1(I) (2016 ed).
I found that $1.9 million in losses could be attributed to Adegoke, which results in a 16-level increase under both versions of the guidelines. But if Adegoke is correct that the 2016 version should apply and that $600,000 in losses were inaccurately attributed to him, thatwould bump him down to a lower offense level and change his guidelines range from 78-97 months to 63-78 months.
In support of its argument that the 2013 guidelines should apply, the government relies on the presentence report, which used that version of the guidelines. Dkt. 194, ¶ 119. Neither side objected to that conclusion, so I assumed that the 2013 guidelines applied as well. See Dkt. 239, at 23-24. But that assumption may have been incorrect. Under § 1B1.11, the court should apply the version of the guidelines in effect at the time of sentencing unless doing...
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