Filed: Apr. 16, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 4-16-2003 USA v. Akinola Precedential or Non-Precedential: Non-Precedential Docket 02-2105 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Akinola" (2003). 2003 Decisions. Paper 650. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/650 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 4-16-2003 USA v. Akinola Precedential or Non-Precedential: Non-Precedential Docket 02-2105 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Akinola" (2003). 2003 Decisions. Paper 650. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/650 This decision is brought to you for free and open access by the Opinions of the United States Co..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-16-2003
USA v. Akinola
Precedential or Non-Precedential: Non-Precedential
Docket 02-2105
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Akinola" (2003). 2003 Decisions. Paper 650.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/650
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 02-2105
__________
UNITED STATES OF AMERICA
v.
KOLE AKINOLA,
Appellant
_________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 02-cr-00013)
District Judge: Honorable Dickinson R. Debevoise
__________
Submitted Under Third Circuit LAR 34.1(a)
March 11, 2003
Before: RENDELL, AMBRO, and MAGILL*, Circuit Judges.
(Filed April 16, 2003)
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
On January 9, 2002, Kole Akinola, pursuant to a written plea agreement,
_______________________
* Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
waived prosecution by indictment and pled guilty to a one-count Information filed in the
District of New Jersey, charging him with conspiracy to commit bank fraud in violation of
18 U.S.C. § 371. On April 8, 2002, the District Court sentenced Akinola principally to
time served and ordered him to pay restitution in the amount of $46,249.25. Akinola was
denied bail during his pretrial proceedings and, therefore, had been in custody since
May 25, 2001. He now appeals from his conviction and sentence. The District Court had
jurisdiction under 18 U.S.C. § 3231, and we now exercise jurisdiction pursuant to
28 U.S.C. § 1291.
Akinola has filed a pro se brief presenting a number of possible grounds for appeal,
and counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that Akinola’s appeal presents no non-frivolous issues and requesting to withdraw
as counsel. In reviewing an Anders brief, we must determine if counsel adequately
presented his client’s case and if an independent review of the record reveals any non-
frivolous issues. United States v. Youla,
241 F.3d 296, 300 (3d Cir. 2001). Counsel’s
brief properly identifies those issues that might possibly support an appeal. After our
independent review of the record, we agree that each of these issues is frivolous.
Akinola’s counsel first questions whether Akinola’s guilty plea was properly
accepted by the District Court under Federal Rule of Criminal Procedure 11. Rule 11
requires the court to address the defendant in open court, ensuring that he understands his
rights, the charges against him, the penalties, and the sentencing guidelines, and that his plea
is made voluntarily. Fed. R. Crim. P. 11. As illustrated in the record and in counsel’s brief,
the District Court fulfilled the requirements of Rule 11. In open court, the District Court
2
advised Akinola of his rights and found that he understood them. The Judge reviewed the
possible penalties and informed the defendant that the Court would use sentencing
guidelines to determine his sentence. Additionally, Akinola was told of the possibility of
restitution, of a term of supervised release, and of the consequences of violating these
provisions. The Court, therefore, properly accepted Akinola’s guilty plea.
Defendant’s counsel also identifies as an issue the possibility that Akinola’s
sentence was imposed in violation of the law or as a result of an incorrect application of the
sentencing guidelines. The applicable guideline range was stipulated in the plea agreement
and the District Court properly sentenced Akinola within the appropriate range. Neither
Akinola nor his counsel have identified any defect in the sentencing calculation.
Counsel addresses the possible argument that he rendered ineffective assistance in
his representation of Akinola and, in his pro se brief, Akinola does in fact raise this issue.
Ineffective assistance, however, is not normally considered on direct appeal, and we will
not do so here where the record fails to inform us on this issue. See United States v. Jake,
281 F.3d 123, 132 n.7 (3d Cir. 2002) (stating that claims for ineffective assistance of
counsel should be raised in a separate proceeding under 28 U.S.C. § 2255 rather than on
direct appeal); United States v. Haywood,
155 F.3d 674, 678 (3d Cir. 1998) (refusing to
review an ineffective assistance of counsel claim on direct appeal without sufficient record
to dispose of the claim).
In his brief, Akinola argues that his constitutional right to due process was violated
when the court denied him bail during the pre-conviction proceedings. This claim is moot
3
as a result of Akinola’s conviction. See Murphy v. Hunt, 455 U.S. 478, 481-82 (1982)
(holding that a plaintiff’s claim to pretrial bail is moot once the plaintiff is convicted).1
Akinola also argues that insufficient proof was offered to support the order of
restitution in the amount of $46,249.25. As Akinola did not raise this issue at sentencing,
our review is for plain error only. See United State v. Coates, 178 F.3d 681 (3d Cir. 1999)
(finding that the Court must review the District Court’s order for restitution for plain error
when the defendant fails to object to the order at the sentencing hearing). The defendant
stated in court that he had reviewed and accepted the presentence investigation report. He
did not raise any objection to the report, which clearly stated that the amount of the loss by
the Banks exceeded $40,000, but was not more than $70,000. The presentence report also
indicated that the counterfeit checks that Akinola and his partners were responsible for
cashing totaled $46,249.25. The District Court did not commit plain error in basing its
restitution order on the unchallenged information contained in the presentence report. See
United States v. Gibbs,
190 F.3d 188, 207 n.10 (3d Cir. 1999)
Our review of the record indicates no reason to disturb the judgment of the District
Court. We find that counsel, as required by Anders, conducted a conscientious review of
the record and correctly concluded that there were no non-frivolous issues for appeal.
1
The Murphy Court acknowledged two exceptions to this mootness doctrine, neither of
which apply in the present case. A plaintiff can appeal the denial of his pretrial bail if he is
either bringing a class action suit, or if a reasonable probability exists that the party would
be subjected to this same type of denial again and “the challenged action was in its duration
too short to be fully litigated prior to cessation or expiration.” Murphy, 455 U.S. at 482.
4
Additionally, Akinola, in his brief, did not raise any meritorious claims for appeal. Our
independent review of the record did not reveal any non-frivolous claims. We are satisfied
that all requirements of the Anders procedure have been met.
Accordingly, we will AFFIRM the Order of the District Court and, in a separate
order, will GRANT counsel’s motion to withdraw.
5
___________________________
TO THE CLERK OF COURT:
Please file the foregoing Not Precedential Opinion.
/s/ Marjorie O. Rendell
Circuit Judge
6
