U.S. v. Giwah, s. 635

• Decision Date: 22 May 1996
• Docket Number: 389,732,D,Nos. 635,s. 635
• Citation: 84 F.3d 109
• Parties: UNITED STATES of America, Appellee, v. Abiodun T. GIWAH, Defendant-Appellant. ockets 95-1229, 95-1230, 95-1242.
• Court: U.S. Court of Appeals — Second Circuit

Page 109

84 F.3d 109

UNITED STATES of America, Appellee, v. Abiodun T. GIWAH, Defendant-Appellant.

Nos. 635, 732, 389, Dockets 95-1229, 95-1230, 95-1242.

United States Court of Appeals, Second Circuit.

Argued Nov. 21, 1995.

Decided May 22, 1996.

Louis R. Aidala, New York City (Martin Geoffrey Goldberg, New York City, on the brief), for Defendant-Appellant.

Douglas M. Lankler, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Southern District of New York, Ira M. Feinberg, Assistant United States Attorney, New York City, of counsel), for Appellee.

Before: CARDAMONE, WALKER, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Abiodun Giwah pleaded guilty to one count of mail fraud in violation of 18 U.S.C. § 1341, one count of bail jumping in violation of 18 U.S.C. § 3146(a)(1) & (b)(1)(A)(ii), and one count of credit card fraud in violation of 18 U.S.C. § 1029(a)(2). He appeals two portions of his sentence: a thirty-three month prison term and an order to make restitution to the victims of his fraud in the amount of $79,265 in payments of at least 15% of his annual gross earnings. As for his prison sentence, Giwah argues that the United States District Court for the Southern District of New York (Allen G. Schwartz, District Judge ) improperly refused to grant a downward adjustment for acceptance of responsibility. As for the restitution order, Giwah argues that (1) the district court failed to comply with the statutory procedure for imposing restitution, and (2) it was improper to order restitution payments of at least 15% of his income.

For the reasons explained below, we affirm the prison sentence, vacate the restitution order and remand for reconsideration thereof.

I. BACKGROUND

Giwah pleaded guilty to three criminal charges in January 1995: a count of mail fraud, a count of bail jumping, and a count of credit card fraud.

A. The Crimes

The mail fraud charge stems from two money market accounts which Giwah opened in the spring of 1991. He opened these accounts with stolen checks totalling $81,180, and then withdrew $60,600 before the financial institution, Dreyfus, realized the illegality of the accounts and froze the assets in them. Giwah was arrested on this charge on February 8, 1993. He pleaded not guilty that same day and was released on a $50,000 personal recognizance bond.

While out on bail, however, Giwah committed two more crimes. First, during the summer and fall of 1993, he opened two Citicorp Diner's Club card accounts under false names and charged $18,665 worth of purchases. This amount was lost by Citicorp. This conduct violated 18 U.S.C. § 1029(a)(2), the credit card fraud statute. Second, he jumped bail when he failed to appear at a December 3, 1993 pre-trial hearing relating to the mail fraud charge, in violation of 18 U.S.C. § 3146(a)(1) & (b)(1)(A)(ii).

Giwah was indicted for bail jumping on December 28, 1993, and was arrested on that charge in February 1994. He has been in federal custody since that time. Because he used fake names to perpetrate the credit card fraud, federal authorities did not connect Giwah to that crime until after his February 1994 arrest. Giwah was indicted for credit card fraud on December 19, 1994.

B. The Plea Agreement

Giwah pleaded guilty on January 27, 1995, to all three indictments. In the plea agreement with the government, he agreed that his adjusted offense level pursuant to the United States Sentencing Guidelines ("USSG") was 16. This figure reflected a base offense level of 12 from grouping the two fraud counts and totalling the amounts of money they involved, increased by 2 for more than minimal planning pursuant to U.S.S.G. § 2F1.1(b)(2), and by another 2 due to the additional count of bail jumping pursuant to USSG § 3D1.4 (rules for calculating effect of count grouping). Giwah and the government also agreed to a three level decrease for acceptance of responsibility pursuant to USSG § 3E1.1. This decrease brought the total offense level to 13. For purposes of the agreement, Giwah's criminal history level was calculated to be category III. Lastly, the agreement stated that neither the court nor the Probation Department was bound by the sentencing calculations in the agreement and that "defendant will have no right to withdraw his plea of guilty should the sentence imposed by the Court be outside the Guidelines range set forth above."

The Probation Department in its Presentence Report ("PSR") also calculated Giwah's adjusted offense level to be 16, though in a slightly different way. Rather than considering the bail jumping offense as an additional count to be calculated pursuant to USSG § 3D1.4 (resulting in a two point increase pursuant to count-grouping rules), the probation department treated bail jumping as an obstruction of justice relating to the mail fraud count pursuant to USSG § 3C1.1, comment. (n.6), resulting in a two point increase. Also in contrast to the plea agreement, the Probation Department determined that Giwah deserved only a two point reduction, not three, for acceptance of responsibility. Thus the total offense level according to the Probation Department was 14. The Probation Department reasoned that Giwah did not deserve the additional downward adjustment for acceptance of responsibility under USSG § 3E1.1(b) because he waited more than a year and a half between his first indictment on mail fraud and his eventual guilty plea.

The Probation Department also recommended that the court order Giwah to pay, "with at least 10% of his gross earnings, full restitution" to Dreyfus and Citicorp.

C. The Sentence

At sentencing, Judge Schwartz adopted the Probation Department's recommended adjusted offense level of 16, including the obstruction of justice enhancement pursuant to USSG § 3C1.1. Judge Schwartz gave two reasons for applying the obstruction enhancement. First, he found that Giwah perjured himself during a suppression hearing on August 25, 1994 relating to the mail fraud charge. Second, the court emphasized Giwah's bail jumping.

But Judge Schwartz rejected both the plea agreement and the PSR when he refused any downward adjustment for acceptance of responsibility under § 3E1.1. He reasoned that this was not an "extraordinary case" such that it would warrant both the obstruction enhancement of § 3C1.1 and the acceptance reduction of § 3E1.1. See USSG § 3E1.1, comment. (n.4). Judge Schwartz explained that Giwah's "extensive efforts [to] obstruct justice at the very least militates in favor of" rejecting the acceptance deduction.

Giwah was sentenced to thirty-three months in prison, the highest sentence within the applicable guideline range (offense level 16, criminal history category III), to be followed by three years of supervised release. Judge Schwartz also ordered Giwah to pay over $79,000 in restitution, "at a rate of at least 15 percent of his annual gross earnings," during Giwah's supervised release. Judge Schwartz did not impose a fine, though the Guidelines called for one between $4,000 and $40,000, "because I find the defendant has not the ability to pay a fine."

II. DISCUSSION

A. The Prison Sentence

1. Standard of Review

Whether there has been an acceptance of responsibility is a fact-question and the circuit court will not reverse the district court's finding on this issue unless it is "without foundation." United States v. Harris, 13 F.3d 555, 557 (2d Cir.1994) (citing United States v. Irabor, 894 F.2d 554, 557 (2d Cir.1990)). Accordingly, a district court's decision regarding a defendant's acceptance of responsibility in a sentencing calculation "is entitled to great deference on review." USSG § 3E1.1, comment. (n.5).

2. Review

As discussed in the statement of facts above, the district court based its refusal to give Giwah the benefit of accepting responsibility on (1) Giwah's perjury in an evidentiary hearing relating to his mail fraud charge and (2) Giwah's bail jumping. The propriety of the obstruction enhancement is clear. Failing to appear for a judicial proceeding is one prototype of justice obstruction under the guidelines. See USSG § 3C1.1, comment. (n.3(e)). It is also perfectly proper to base a § 3C1.1 enhancement and the denial of a § 3E1.1 reduction on the same conduct of the defendant. United States v. Echevarria, 33 F.3d 175, 179 (2d Cir.1994) (doing so is not impermissible double-counting). Under application note 4 to § 3E1.1, it takes an "extraordinary case" to justify the simultaneous application of the obstruction increase and the acceptance decrease. Giwah makes no argument that this is such an extraordinary case other than his attempt to minimize the seriousness of his justice-obstructing conduct.

For example, he argues that his perjury at an evidentiary hearing should not count against him because it was in response to aggressive questioning from the bench. This argument is breathtaking. Perjury is no less serious when it is committed in response to questions from a judge than when it is committed while answering a lawyer's inquiry.

Giwah also argues that the perjury occurred long before the plea agreement. Therefore, he reasons, the obstruction was not very serious. Guideline § 1B1.3(a)(1) makes clear that all acts "that occurred ... in the course of attempting to avoid detection or responsibility for that offense" "shall" be considered in determining the appropriate adjusted offense level. Giwah's argument ignores this. His perjury can only be seen as an attempt to avoid responsibility or detection for his mail fraud crime.

In a more technical argument, Giwah contends that the obstruction enhancement should not apply (and therefore the acceptance reduction should apply) to the credit card fraud count because he was indicted on the credit card count after he engaged in the justice-obstructing conduct. He argues that he deserves an acceptance reduction for the credit card count because he pleaded guilty thereto only a month after...