U.S. v. Oladimeji

Decision Date12 September 2006
Docket NumberDocket No. 03-1541.,Docket No. 03-1534.
Citation463 F.3d 152
PartiesUNITED STATES of America, Appellee, v. Kamadeen Idowu OLADIMEJI, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Carolyn Pokorny, Assistant United States Attorney for the Eastern District of New York (Jo Ann M. Navickas, Assistant United States Attorney, of counsel; Roslynn R. Mauskopf, United States Attorney, on the brief), New York, NY, for Appellee.

Marsha R. Taubenhaus, New York, NY, for Defendant-Appellant.

Before LEVAL, STRAUB, and SOTOMAYOR, Circuit Judges.

LEVAL, Circuit Judge.

Kamadeen Idowu Oladimeji appeals from judgments of conviction covering two indictments entered in the United States District Court for the Eastern District of New York (Glasser, J.) based on his plea of guilty. Oladimeji argues (i) that the convictions should be overturned because he received ineffective assistance of counsel at several stages, including his making of plea agreements; (ii) that he is entitled to a sentencing remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); and (iii) that the district court's restitution order under 18 U.S.C. §§ 3663A-3664 was in error and unconstitutional. We find that Oladimeji's ineffective-assistance-of-counsel claims cannot properly be considered on appeal but may be asserted in a petition for habeas corpus under 28 U.S.C. § 2255; we deny provisionally Oladimeji's claim to a remand under Crosby; and we find no error in the restitution order. Accordingly, we affirm the judgments of conviction.

BACKGROUND

On March 1, 2001, pursuant to a plea agreement, Oladimeji pleaded guilty on Indictment 00-709 (the "00" indictment) to one count of possessing fraudulent alien registration and Social Security cards in violation of 18 U.S.C. § 1546(a). The plea agreement contained an appeal-waiver provision, which stated that "defendant will not file an appeal or otherwise challenge the conviction or sentence" if the court imposes a "range of imprisonment" of ten to sixteen months.

Prior to sentencing in that case, additional charges were brought against Oladimeji in Indictment 01-957 (the "01" indictment). On June 10, 2002, Oladimeji executed an agreement in the 01 case to plead guilty to two counts of bank fraud in violation of 18 U.S.C. § 1344 and one count of fraudulent possession of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). The two bank-fraud counts alleged that Olademeji participated in schemes to obtain a $30,000 home-equity loan by making false representations to a financial institution, and to steal funds from a deceased woman's bank account. The unauthorized-access-device count alleged that Oladimeji possessed, with intent to defraud, fifteen or more unauthorized access devices, consisting of more than 200 Social Security numbers and credit cards.

The plea agreement noted that restitution was "mandated" by 18 U.S.C. § 3663A. It included an appeal-waiver provision covering both cases, which stated:

The defendant will not file an appeal or otherwise challenge the conviction or sentence in 00-709 or 01-957 in the event that the Court imposes a total term of imprisonment of 114 months . . . or below.

Oladimeji entered a guilty plea on the new counts at a hearing held June 10, 2002. With regard to the charge of unauthorized access cards, the government advised the court that agents had seized from Oladimeji's residence approximately 40 credit cards in various people's names. Initially, Oladimeji appeared to dispute his possession of these cards, indicating that they belonged to another individual living in his house. However, Oladimeji then acknowledged under oath his own possession of two to three credit cards in others' names, for the purpose of obtaining money that did not belong to him, and with respect to the other credit cards, that he was aware they were in his home, that they were "funny," that they were intended to be used by a person to obtain money that did not belong to him, and that he was "aiding and abetting" and "assisting" in that venture.

On March 3, 2003, Oladimeji moved to withdraw both guilty pleas. On June 17, 2003, the district court denied his motion, and proceeded to impose a sentence covering both cases of 71 months of imprisonment, five years of supervised release, a special assessment of $400, and restitution payments of $152,545.72. The latter sum included $42,545.72 to credit card companies based on the fraudulent use of thirteen credit cards seized from Oladimeji's residence.

Oladimeji brought this appeal.

DISCUSSION
I. Ineffective Assistance of Counsel

Oladimeji contends that his guilty pleas and his convictions should be set aside because he received ineffective assistance of counsel in making his plea agreements, in attempting to withdraw his pleas, and at his sentencing.

Where the record on appeal does not include the facts necessary to adjudicate a claim of ineffective assistance of counsel, our usual practice is not to consider the claim on the direct appeal, but to leave it to the defendant to raise the claims on a petition for habeas corpus under 28 U.S.C. § 2255. See, e.g., United States v. Morgan, 386 F.3d 376, 383 (2d Cir.2004); United States v. Khedr, 343 F.3d 96, 99-100 (2d Cir.2003); United States v. Williams, 205 F.3d 23, 35-36 (2d Cir.2000). As the Supreme Court has noted, collateral review typically provides a far better opportunity for an evaluation of an ineffective-assistance claim than direct review, because a factual record focused on the defendant's claim can be developed in the district court, including by "tak[ing] testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance." Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (noting the benefits of deciding ineffective-assistance claims through § 2255 proceedings instead of on direct appeal).

The record currently before us does not contain the information necessary to the resolution of Oladimeji's ineffective-assistance-of-counsel claims. We decline to consider them as a part of this direct appeal. Oladimeji may raise those claims in the district court by petition under § 2255, upon which the court could determine whether ineffective assistance of counsel nullified the defendant's waiver of his right to challenge his conviction.

II. The Effect of Oladimeji's Ineffective-Assistance-of-Counsel Claim on His Other Challenges to His Conviction

In addition to his claim of ineffective assistance, Oladimeji contends that he is entitled to a remand under Crosby for reconsideration of his sentence and to a reduction of the restitution payments ordered. The government asserts that those challenges are barred by Oladimeji's second appeal waiver because his sentence of 71 months imprisonment was within the range (of 114 months or below) as to which Oladimeji committed himself not to challenge the convictions. Oladimeji contends that the ineffective assistance of counsel he received tainted his acceptance of the plea agreements, including the appeal-waiver provision. Ineffective assistance with respect to an appeal waiver, if proven, would cast doubt on enforceability of the appeal-waiver provision.

In United States v. Monzon, 359 F.3d 110 (2d Cir.2004), discussing similar circumstances, we said:

[I]f the merits of the ineffective-assistance-of-counsel claim cannot be determined on the basis of the record on appeal, it is appropriate to enforce the appeal waiver and dismiss the appeal. If the rule were otherwise, a defendant who secured the benefits of a plea agreement by, inter alia, knowingly and voluntarily waiving the right to appeal could escape the fairly bargained-for appeal waiver by the simple expedient of asserting an ineffective-assistance-of-counsel claim that had no merit.

Id. at 119. That statement was dictum in Monzon, because we did review the merits of that defendant's ineffective-assistance-of-counsel claim. Id. at 111-12, 119-20. Nonetheless, we find the reasoning of Monzon to be persuasive, and we adopt it here.

As the record does not permit assessment of the claim of ineffective assistance and its potential effect on the appeal waiver, the defendant's undertaking not to appeal will be provisionally enforced as to any appellate claim that falls under the appeal waiver, unless and until he prevails (by a habeas petition) in proving that his appeal waiver should be voided because he received ineffective assistance of counsel. When and if he proves that contention, any such claim would be considered as a part of the habeas petition. For purposes of this appeal, the appeal waiver will be enforced.

III. Crosby Remand

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court found that the United States Sentencing Guidelines, when applied in accordance with the compulsory terms of the governing statutes, violated defendants' jury trial rights under the Sixth Amendment. In response to that ruling, this court determined that defendants sentenced under the Guidelines on direct appeal who did not object below to the constitutionality of the Sentencing Guidelines generally should be entitled to a remand to the district court for a determination whether their sentences would have been significantly more lenient had the sentencing court followed the standards of Booker, and accordingly should be resentenced. See Crosby, 397 F.3d at 119; cf. United States v. Lake, 419 F.3d 111, 113 (2d Cir.2005) (finding that remand for resentencing, instead of a remand to determine whether to resentence, is appropriate in a case of preserved error); United States v. Fagans, 406 F.3d 138, 140-42 (2d Cir.2005) (same). Such a remand to determine whether to resentence is now commonly referred to as a "Crosby remand."

Oladimeji contends he should receive a Crosby...

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