U.S. v. Adeniyi, 1311

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before OAKES, Chief Judge, PRATT, Circuit Judge, and PIERCE; PIERCE
• Citation: 912 F.2d 615
• Parties: UNITED STATES of America, Appellee, v. Joseph A. ADENIYI, a/k/a "Joseph A. Akimbo", a/k/a "John Farrar", a/k/a "Gordon Mathewson", a/k/a "Allen A. Paul", Defendant-Appellant. ocket 90-1055.
• Docket Number: No. 1311,D,1311
• Decision Date: 04 September 1990

Page 615

912 F.2d 615 UNITED STATES of America, Appellee,
v.
Joseph A. ADENIYI, a/k/a "Joseph A. Akimbo", a/k/a "John
Farrar", a/k/a "Gordon Mathewson", a/k/a "Allen A.
Paul", Defendant-Appellant. No. 1311, Docket 90-1055. United States Court of Appeals,
Second Circuit. Argued May 17, 1990.
Decided Sept. 4, 1990.

Gary D. Weinberger, Asst. Federal Public Defender, Hartford, Conn., for defendant-appellant.

Page 616

Leonard C. Boyle, Asst. U.S. Atty., Hartford, Conn. (Stanley A. Twardy, Jr., U.S. Atty., New Haven, Conn., James G. Genco, Asst. U.S. Atty., Hartford, Conn., of counsel), for appellee.

Before OAKES, Chief Judge, PRATT, Circuit Judge, and PIERCE, Senior Circuit Judge.

PIERCE, Senior Circuit Judge:

Joseph Adeniyi appeals from a judgment of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, convicting him, after a guilty plea, of bank fraud in violation of 18 U.S.C. Sec. 1344(1) (1988). Adeniyi contends that the district court incorrectly applied the United States Sentencing Guidelines ("Guidelines") by refusing to depart downward from the applicable range of imprisonment. We conclude that a district court should apply the guideline in effect at the time of sentencing, barring any ex post facto problem, and that its discretionary refusal to depart downward is not reviewable. Accordingly, we dismiss the appeal.

BACKGROUND

Between August 11, 1987 and November 9, 1988, Adeniyi engaged in a scheme to defraud several banks in Connecticut through a series of transactions commonly known as "check-kiting." Using fictitious names, Adeniyi opened numerous checking and savings accounts with nominal cash deposits. After a few months passed, he deposited checks drawn from one account, for which there were insufficient funds, into other accounts. Adeniyi then withdrew cash from the latter accounts while the checks were being processed for collection. The total loss to the Connecticut banks victimized in this manner was $44,600. On November 9, 1988, the Connecticut State Police arrested Adeniyi in Danielson, Connecticut, as he and an accomplice attempted to make a cash withdrawal as part of this scheme. Adeniyi was held in state custody while he was prosecuted in several of the towns in which the banks were located.

Meanwhile, the Federal Bureau of Investigation (the "FBI") was conducting its own investigation of Adeniyi's activities. On May 31, 1989, a criminal complaint was filed in the United States District Court for the District of Connecticut charging Adeniyi with bank fraud in violation of 18 U.S.C. Sec. 1344(1). An arrest warrant was issued for Adeniyi who by then was a state prisoner awaiting trial. Agents of the FBI continued their investigation and attempted to identify Adeniyi's other accomplices.

Adeniyi pleaded guilty in Connecticut Superior Court to defrauding the City Savings Bank in Meriden, Connecticut. On June 9, 1989, he was sentenced to five years of imprisonment, to be suspended after fifteen months. Under the state's "early release" program, Adeniyi completed his sentence on August 30, 1989. Thus, he was in state custody for approximately ten months. Upon his release, the state authorities transferred custody of Adeniyi to federal authorities.

On September 8, 1989, Adeniyi was charged with ten counts of bank fraud in a federal indictment. A superseding indictment was returned on October 31, 1989, and on November 13, 1989, Adeniyi pleaded guilty to Count Eight of this indictment, which charged him with fraudulently withdrawing $6,200 from the Liberty Bank for Savings in Middletown, Connecticut in violation of 18 U.S.C. Sec. 1344(1). As part of a plea agreement, the government dismissed the remaining counts at the time of sentencing.

In its presentence report, the probation department assigned Adeniyi an adjusted offense level of 10 and a criminal history category of I, resulting in a sentencing range of six to twelve months pursuant to the Guidelines. The report concluded that there was no basis for a departure. Adeniyi objected to this aspect of the report, and in a letter to the probation officer, he focused on Guidelines Sec. 5G1.3, which provided that:

If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively

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to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except to the extent otherwise required by law.

United States Sentencing Commission, Guidelines Manual, Sec. 5G1.3 (Oct.1987). Adeniyi noted that had he been prosecuted in state and federal court contemporaneously, Sec. 5G1.3 would have required a concurrent sentence, but he conceded that it did not directly apply because he had been prosecuted serially. He then argued that the probation officer should have considered the accompanying commentary to this section:

This section reflects the statutory presumption that sentences imposed at different times ordinarily run consecutively. See 18 U.S.C. Sec. 3584(a). This presumption does not apply when the new counts arise out of the same transaction or occurrence as a prior...