11-2755-cr
United States v. Oluigbo


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 31st day
of May, two thousand twelve.

Present:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
____________________________________________________

United States of America,
                              Appellee,

               v.                                                   No.    11-2755-cr

Joseph Oluigbo,
                              Defendant-Appellant,

Emmanuel Oruche, Fnu Lnu, Ambo Rebecca Fomum-Tibah,
Cosme Frederick Tibur Jemy, Fnu Lnu, Linus Iheukwu, Paul Osuji,

                        Defendants.
____________________________________________________

FOR APPELLANT:                Robert J. Boyle, Law Office of Robert J. Boyle, New York, New
                              York
FOR APPELLEE:           Michael M. Rosensaft, (Jesse M. Furman, on brief) Assistant
                        United States Attorneys, of counsel, for, Preet Bharara, United
                        States Attorney for the Southern District of New York, New York,
                        New York
____________________________________________________

       Appeal from the United States District Court for the Southern District of New York

(Pauley, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Joseph Oluigbo appeals from a judgment of the district court

sentencing him to 126 months’ imprisonment following his conviction, after a jury trial, of

conspiracy to possess with intent to distribute heroin, 21 U.S.C. § 846, and conspiracy to import

heroin, 21 U.S.C. § 963. After trial, Oluigbo and one of his co-defendants, Emmanuel Oruche,

appealed, challenging the sufficiency of the evidence and their sentences. As discussed in

greater depth below, we rejected their sufficiency challenges, but vacated their sentences and

remanded for resentencing. On remand, Oluigbo was re-sentenced to 126 months’

imprisonment. In this second appeal, Oluigbo contends that his sentence is substantially

unreasonable. We assume the parties’ familiarity with the underlying facts, and the issues on

appeal, and we discuss these only as necessary to explain our decision.

       Oluigbo was tried jointly with Emmanuel Oruche, who was convicted of additional

counts of conspiracy. In light of the jury’s findings as to the amount of drugs involved in the

Oluigbo’s charged conspiracies and well as the government’s decision to file a prior felony

information, Oluigbo was subject to a statutory mandatory minimum of 120 months. See 21

U.S.C. §§ 841(b)(1)(B), 960(b)(2)(A), 851(a). The Probation Office calculated his offense level

at 32 and his criminal history at category III, yielding an advisory Guidelines range of 151 to 188


                                                -2-
months’ imprisonment. After determining that Oruche was a career offender, the district court

sentenced him to a term of 270 months’ imprisonment. Oluigbo was initially sentenced to a term

of 126 months’ imprisonment. Both men appealed, challenging the sufficiency of the evidence

and their sentences. We rejected the sufficiency challenges, but we vacated their sentences,

concluding that the district court erroneously found Oruche to be a career offender. United

States v. Oluigbo, 375 F. App’x 61, 63-67 (2d Cir. 2010). While we rejected Oluigbo’s

contention that he was entitled to a “minor participant” adjustment under the Guidelines, we

found it prudent to allow the district court to re-sentence Oluigbo because the district court

indicated that his sentence had been “placed in context” with Oruche’s flawed sentence. Id. at

66-67. We expressed no view on the proper sentence for Oluigbo following remand. Id.

       On June 23, 2011, Oruche and Oluigbo appeared before the district court for

re-sentencing. Without the career offender designation, Oruche’s Guidelines were re-calculated

to reflect a range of 292 to 365 months’ imprisonment instead of 360 months to life

imprisonment. Oruche addressed the court and apologized for his “great mistake.” The court

then re-sentenced Oruche to a term of 240 months’ imprisonment.

       At his re-sentencing, Oluigbo chose to address the court, but did not specifically accept

responsibility for his crimes. Instead he said: “I’m sorry to find myself here,” and indicated that

he “was willing to accept whatever you want me to accept.” The court first reiterated the

findings it made at the original sentencing, noting that the Oluigbo played a “crucial” role in the

conspiracy and was “more than just an average participant.” He noted that Oluigbo remained

unwilling to accept responsibility for his role in the conspiracy. The court then imposed a

126-month term of imprisonment, stating that the sentence is “entirely appropriate and just and


                                                -3-
certainly not more than necessary as a matter of deterrence.” Oligbo now challenges this

sentence on appeal.

       “We are constrained to review sentences for reasonableness, and we do so under a

deferential abuse-of-discretion standard.” United States v. Conca, 

, 62 (2d Cir.

2011) (internal citation and quotation marks omitted). Our appellate review “encompasses two

components: procedural review and substantive review.” United States v. Cavera, 

,

189 (2d Cir. 2008) (en banc). Oluigbo challenges only the substantive reasonableness of his

sentence, which we review principally with respect to the “length of the sentence imposed.”

United States v. Bonilla, 

, 108-09 (2d Cir. 2010). “We will . . . set aside a district

court’s substantive determination only in exceptional cases where the trial court’s decision

cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189 (internal

quotation marks omitted). This standard provides “a backstop for those few cases that, although

procedurally correct, would nonetheless damage the administration of justice because the

sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter

of law.” United States v. Rigas, 

, 123 (2d Cir. 2009).

       Oluigbo essentially reprises the argument we have already rejected—as a “relatively

minor player” in the conspiracies, “the 126 month prison sentence was unreasonable.” See

Oluigbo, 375 Fed. Appx at 66 (“[W]e find no error in the District Court’s determination that

Oluigbo was not entitled to a minor-role adjustment.”). Under the applicable standard and our

earlier ruling, this appeal has no merit. Departing from the Guidelines range of 135 to 168

months’ imprisonment, the district court sentenced Oluigbo to six months longer than the

statutory minimum of 120 months. Given Oluigbo’s conviction and the district court’s finding


                                                -4-
that he had a significant (as opposed to minor) role in this international heroin trafficking ring,

the sentence was well within “the range of permissible decisions.” Cavera, 550 F.3d at 191.

       Arguing that the Guidelines range is itself the product of an over-reliance on drug

quantity, Oluigbo contends that the benchmark set by the Guidelines “should have been accorded

far less weight.” Nothing, however, requires district courts to lower sentences based on

disagreement with the applicable guidelines—whether to do so rests within the sound discretion

of the district court. See Rita v. United States, 

, 350-51 (2007). As we have

repeatedly stated, we “will not second guess the weight (or lack thereof) that the judge accorded

to a given factor or to a specific argument made pursuant to that factor.” United States v. Pope,

, 247 (2d Cir. 2009) (internal quotation marks omitted).

       Oluigbo also argues that because the district court reduced Oruche’s sentence from 270

months to the applicable statutory minimum of 240 months, Oluigbo’s sentence should similarly

be lowered to the applicable statutory minimum of 120 months. As noted by the district court,

however, the lowering of Oruche’s sentence was based on the significant change in his

Guidelines benchmark as well as his apparent cooperation with the government and his remorse

for his criminal activity. In contrast, nothing about Oluigbo’s benchmark changed, and he

continued to maintain his innocence despite the jury’s findings. This is not an exceptional case

that involves a “shockingly high” sentence which damages our administration of justice. Rigas,

583 F.3d at 123. The district court did not exceed the bounds of its discretion in imposing it.

       We have considered Oluigbo’s remaining arguments and find them without merit. For

the foregoing reasons, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




                                                 -5-