U.S. v. Ojo, 89-2865

• Decision Date: 18 October 1990
• Docket Number: No. 89-2865,89-2865
• Citation: 916 F.2d 388
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Folashade OJO, also known as Antinuke Morenike Witherspoon, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 388

916 F.2d 388

UNITED STATES of America, Plaintiff-Appellee, v. Folashade OJO, also known as Antinuke Morenike Witherspoon Defendant-Appellant.

No. 89-2865.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1990.

Decided Oct. 18, 1990.

Matthew L. Jacobs, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Marvin Bloom, Jeffrey B. Steinback, Geena D. Cohen, Genson, Steinback & Gillespie, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., POSNER, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Antinuke Morenike Witherspoon, a/k/a Folashade Ojo, was convicted of using a false Social Security Number with intent to deceive, in violation of 42 U.S.C. Sec. 408(g)(2), pursuant to a plea agreement, and was sentenced to five months' imprisonment to be followed by five months in a community treatment center. She appeals the enhancement of her sentence above the base offense level recited in her plea agreement, as well as the court's refusal to grant her requested two point reduction. We affirm.

I. Facts

On March 31, 1989, Antinuke Witherspoon ¹ falsely identified herself as Folashade Ojo while attempting to open a checking account at the First Wisconsin National Bank in Milwaukee, Wisconsin, but was denied the privilege of opening the account because bank officials were not satisfied with her identification credentials. At the time of her application she provided bank personnel with a false Milwaukee County (Wisconsin)-issued Identification Card ² as well as a false Milwaukee Area Technical College identification card (she was never a student at that institution).

Subsequently, after being denied the checking account at the First Wisconsin National Bank, Witherspoon next obtained a false State of Wisconsin-issued Identification Card. In obtaining this identification she again used the assumed name of Folashade Ojo, falsely claiming that she lived at 2919 West Wisconsin Avenue in Milwaukee, also falsely stating that she was a student at Marquette University, and also offered a fictitious Social Security Number and birth date. ³ The offer of proof at Witherspoon's plea acceptance hearing recited that a representative of the Wisconsin Department of Transportation would have testified that Witherspoon would have been asked to provide a birth certificate as proof that the information she provided in obtaining the State of Wisconsin-issued Identification Card. On her application to the Milwaukee County Register of Deeds for her County-issued Identification Card, she also fraudulently listed her address as 2919 West Wisconsin Avenue in Milwaukee as well as providing a fictitious date of birth.

Witherspoon utilized her recently issued State Identification Card to open a checking account at the First Interstate Bank in Milwaukee, Wisconsin, ⁴ providing the bank with a fictitious Social Security Number, 317-64-6622. Witherspoon further misled the bank using a false Marquette University identification card, although she never attended that university, and further she falsely represented that she lived at 2919 West Wisconsin Avenue in Milwaukee. She also presented the bank her false County-issued Identification Card, for identification purposes, also using the same fictitious name and address which she had provided to the previous bank.

Witherspoon was arrested on May 1, 1989, and indicted on a charge of using a false Social Security Number with intent to deceive, in violation of 42 U.S.C. Sec. 408(g)(2), in opening the bank account at First Interstate Bank. Witherspoon was interviewed by a pre-trial services officer to provide information for setting the amount of her appearance bond. During this interview, she again provided false information as to her name, date of birth, length of residence in the United States, current address, family history, financial status and arrest record. The report was presented to the U.S. Magistrate, who relying on the false information, set a low appearance bond of $1,000. Shortly thereafter, the probation officer secured accurate information, and in turn requested that the magistrate increase the bond requirement to $15,000, and he complied.

Witherspoon claims that the only reason she repeatedly used the fictitious identification was to avoid her husband, residing in Chicago, who had threatened her physically, as well as threatening to have her deported, because she refused to have an abortion. She stated she was interested in opening a bank account in Milwaukee under a fictitious name in order that she might transfer funds from the couple's joint checking account in Chicago to Milwaukee and utilize the money for her expected child without her husband's knowledge. Witherspoon's expected child was born December 20, 1989, thus she became pregnant, in all probability, some time during the month of March of 1989, at the time she opened the bank account. This was more than six months after she had initially obtained her first false identification (the County-issued I.D.), thus discrediting her alleged motive for obtaining the checking account.

Before trial, a written plea agreement was filed with the court, and the defendant and the prosecutors agreed that the base offense level applicable, under section 2F1.1(a) was six. Witherspoon expressly stated in the plea agreement "that the agreement providing the base level may not reflect the defendant's adjusted offense level, offense level total, guideline range or ultimate sentence to be imposed on the defendant by the court. Specifically, the defendant and her attorney acknowledge and understand the base offense level does not reflect any applicable adjustment to the offense level." At the acceptance of the plea hearing, Witherspoon advised the court that she understood that the plea agreement applied only to the base offense level and not to the adjusted level. The court, after questioning, confident of her competency and the voluntariness of her plea, received evidence, and accepted her plea of guilty.

On August 18, 1989, Witherspoon was sentenced to five months' imprisonment followed by an additional five months in a community treatment center. In determining the appropriate period of confinement under Sentencing Guidelines, the court agreed with the base offense level of six set forth in the plea agreement. Thereafter, the court increased her offense level to ten under Sec. 2F1.1(b)(2)(A) because the court found that her offense involved "more than minimal planning"; further, the court adjusted her offense level two levels higher, from 10 to 12, pursuant to Sec. 3C1.1, because of her obstruction of justice in giving false information to the pre-trial services officer; the court refused to make a two-level reduction under Sec. 3E1.1 based upon acceptance of responsibility, and refused to grant any downward departure from the twelve point adjusted offense level. Witherspoon appealed the district court's adjustments to her offense level.

II. Discussion

In reviewing a district court's application of the Sentencing Guidelines, "we review a district court's factual findings in determining an appropriate criminal sentence for clear error." 18 U.S.C. Sec. 3742(e); United States v. White, 903 F.2d 457, 460 (7th Cir.1990); United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989). We will affirm the decision of the district court "if it correctly applied the Guidelines to findings of fact that do not leave us with the definite and firm conviction that a mistake has been committed." Jordan, 890 F.2d at 972; White, at 460 (citation omitted).

A. Enhancement--More than Minimal Planning

The first challenge to Witherspoon's sentence deals with the trial court's four-point enhancement because the offense involved "more than minimal planning," pursuant to Sentencing Guidelines Sec. 2F1.1(b)(2)(A). The Sentencing Guidelines' general application principles demonstrated that " 'more than minimal planning' is deemed present in any case involving repeated acts over a period of time unless it is clear that each instance was purely opportune." Sentencing Guidelines, Sec. 1B1.1, application note 1(f).

Witherspoon's trial judge enhanced her sentence four levels because of "more than minimal planning," ⁵ referring to her use of a false Marquette University identification card, the false State-issued Identification Card, the false Milwaukee Area Technical College identification card, and the false County-issued Identification Card. Witherspoon argues that the details of the events fail to demonstrate "more than minimal planning" because she did not select any particular banks, any particular employees who might be misled, did not request temporary checks or open multiple accounts, but provided only random numbers and dates as her purported Social Security Number and birth date, which she would not even be able to verify later. The judge felt that "the fact that helter-skelter numbers were advanced by Ms. Witherspoon at the bank does not obliterate the other planning aspects of this transaction."

Witherspoon claims that each instance in which she falsely represented her identity was merely "an act of opportunity" and "was random." However, we have noted that she obtained her false County-issued identification card in September of 1988, more than six months prior to using it at First Interstate Bank to open a checking account, and more than six months prior to the event she claims motivated her actions, her pregnancy. Therefore, when Witherspoon obtained the first false identification card in September of 1988 on which she listed a false date of birth, a false phone number, a false address, and a false name, she could not have been motivated by threats made against her by her husband as a result of her pregnancy. Thus, Witherspoon's testimony in this respect is not credible. Furthermore, Witherspoon obtained her State-issued Identification Card after the First Wisconsin National Bank had earlier rejected her...