Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-2003

USA v. Sonowo
Precedential or Non-Precedential: Non-Precedential

Docket 02-2197




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Recommended Citation
"USA v. Sonowo" (2003). 2003 Decisions. Paper 735.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/735


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                                                           NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                   No. 02-2197


                          UNITED STATES OF AMERICA

                                         v.

                                HENRY SONOWO
                      a/k/a SONOWO BABATUNDE HENRY
                              a/k/a KAREEM BELLO

                                  Henry Sonowo,
                                             Appellant


                  On Appeal from the United States District Court
                              for District of Delaware
                         (D.C. Crim. No. 00-cr-00067-1)
                      District Judge: Hon. Gregory M. Sleet


                    Submitted Under Third Circuit LAR 34.1(a)
                                March 13, 2003

         Before: SLOVITER, NYGAARD, and ALARCÓN*, Circuit Judges

                              (Filed: March 18, 2003)


                            OPINION OF THE COURT



*   Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
    Circuit, sitting by designation.
SLOVITER, Circuit Judge.

                                                 I.

       Appellant Henry Sonowo comes before us with a laundry list of claims challenging

his conviction and sentence. Specifically, Sonowo argues that the District Court lacked

subject matter jurisdiction to adjudicate his case, the Government breached the plea

agreement, the District Court violated Sonowo’s due process rights when it rejected the

terms of the plea agreement, the District Court violated Federal Rule of Criminal

Procedure 32(c), and the District Court erred in enhancing and upwardly departing

Sonowo’s sentence.

       Sonowo’s claims are without merit. Accordingly, we will not disturb his conviction

and sentence.

                                           II.

       Because we write solely for the parties, we need not set forth a detailed recitation of

the background for this appeal and will limit our discussion to resolution of the issues

presented.

       Sonowo was one of several persons indicted for involvement in a fraudulent scheme,

known as the “black money” scheme. Sonowo and his cohorts tricked a number of persons

in the United States into sending them funds that were to be used to purchase a special

cleaning chemical that would be used to clean U.S. currency previously stamped with the

letters “CBN” (Central Bank of Nigeria) in black ink. In turn, the cleaned money allegedly

was to be used to set up churches.

                                                 2
       On April 13, 2001, Sonowo pled guilty to one count of conspiracy to commit wire

fraud in violation of 18 U.S.C. § 371. Sonowo elected to represent himself during the

sentencing hearing. The District Court, sua sponte, upwardly departed three levels,

determining that the sentencing enhancements pursuant to the United States Sentencing

Guidelines § 2F1.1 were appropriate because of the amount of loss, misrepresentation of

affiliation with a religious organization, and conduct outside the United States. Sonowo

was sentenced to sixty months imprisonment to be followed by three years supervised

release and ordered him to pay $355,000 in restitution and a $100 special assessment.

Sonowo timely appealed and is acting pro se on this appeal.

                                           III.

       In the first of his numerous claims, Sonowo challenges the District Court’s subject

matter jurisdiction by arguing that he was convicted of a different charge than that charged

in the indictment. Nothing in the record supports this argument. Thus we reject Sonowo’s

contention that the District Court lacked subject matter jurisdiction.

       Sonowo next argues that the Government breached the plea agreement by

“advocating in favor of justification for other enhancements and upward departures” that

were not contained in the memorandum of the plea agreement. Appellant’s Br. at 12. In

relevant part, the plea agreement stated that aside from an enhancement pursuant to

U.S.S.G. § 2F1.1(b)(1)(2) for more than minimal planning, the Government would not seek

any other enhancements or departures from the Guidelines. The record shows that the

Government kept its promise. The Government wrote an objection letter after noting that

                                              3
the presentence report proposed two enhancements. When asked about enhancements

during the sentencing hearing, the Government stated: “[W]e’ve agreed that enhancement

does not apply.” Supp. App. at 147. Finally, when the District Court raised the issue of

enhancement sua sponte, the Government again filed a written opposition. Based on the

record before us, it is clear the Government did not breach the plea agreement.

       In his third claim, Sonowo argues that the District Court violated his due process

rights when it rejected the terms of the plea agreement. The plea agreement states that the

Government would not seek additional enhancements or departures, and as noted above, the

Government adhered to that agreement. The plea agreement does not state that the court

would not apply enhancements or departures, nor could it bind the court. Even Sonowo

concedes that the court cautioned him that the terms of the plea agreement are mere

recommendations that the court may reject. Sonowo further invokes Federal Rule of

Criminal Procedure 11(e)(1)(C) to support his argument; however, that rule binds the court

to plea agreements only after the agreement “is accepted by the court.” Accordingly, we

reject Sonowo’s claim as we fail to see how the District Court had “accepted” the plea

agreement.

       Sonowo next argues that the District Court failed to comply with Federal Rule of

Criminal Procedure 32(c) in making its factual findings. Specifically, Sonowo contends

that the District Court violated Rule 32(c) by overruling his objections to its adoption of

the Presentence Report (“PSR”) and by using an “incoherent factual basis that Sonowo

himself was not made aware of its specific facts or evidence for his colorable objections.”

                                              4
Appellant’s Br. at 19. It is clear from the record that the District Court provided Sonowo

with ample opportunity to object to the facts from the PSR and heard argument from both

parties when Sonowo objected. Furthermore, Sonowo was provided with copies of the law

enforcement reports that formed the basis of the PSR. As such, we reject Sonowo’s claims

that the District Court violated Federal Rule of Criminal Procedure 32(c) and that he was

not aware of the evidence supporting the PSR.

          Sonowo’s final claims center around the sentencing enhancements and upward

departures made by the District Court. First, Sonowo argues that the District Court erred in

enhancing his sentence pursuant to U.S.S.G. § 2F1.1(b)(4)(A), which provides a two level

increase if the offense involved “a misrepresentation that the defendant was acting on

behalf of a charitable, educational, religious, or political organization, or a government

agency.” Sonowo contends that it was Hughes-Irabor, his co-conspirator, and not he, who

made misrepresentations. United States Sentencing Guideline §1B1.3(a)(1)(B) allows the

sentencing court to consider reasonably foreseeable acts of others in furtherance of a

jointly criminal activity. The District Court concluded that “given the close working

relationship the two shared, it should have been completely foreseeable to Sonowo that

Hughes-Irabor would use any means necessary to persuade potential victims, including

telling them that he represented a religious organization.” AA6 at 18. The District Court

did not err in so finding and enhancing Sonowo’s sentence accordingly.

       Sonowo next argues that the District Court erred in enhancing his sentence pursuant

to U.S.S.G. § 2F1.1(b)(5), which provides for an enhancement where a “substantial part” of

                                               5
the offense was either committed outside of the United States or the offense involved

sophisticated means. Sonowo claims that the District Court had no evidence of overseas

involvement. Again, we reject Sonowo’s argument as there was ample evidence of activity

performed outside of the United States. Among other things, at least two of the victims

wired money overseas, Sonowo transferred funds to suspected co-conspirators in other

countries, and three of the victims were induced to travel abroad.

       Sonowo also challenges the District Court’s decision to upwardly depart sua sponte

pursuant to U.S.S.G. §§ 2F1.1, app. n.11 and 5K2.0. Pursuant to these sections, if there are

factors that take the offense outside the “heartland,” the District Court may depart upward.

The District Court upwardly departed after noting the “unusual” degree of harm to the

victims, the “sheer number” of victims, the potential use of “mass-marketing” in soliciting

victims, and the duration and “extensive” planning and execution of the scheme. AA6 at 24-

27. Based on these factors and the evidence supporting them, we find that it was reasonable

for the District Court to upwardly depart.

       Finally, where, as here, the District Court understood its authority to downwardly

depart but chose not to do so, we lack jurisdiction to review its decision. See United States

v. Denardi, 

, 272 (3d Cir. 1990). Accordingly, we do not consider Sonowo’s

claim that the District Court erred in its decision not to depart downward.

                            IV.

       For the foregoing reasons, we will affirm Sonowo's conviction and sentence.

______________________________

                                              6
TO THE CLERK:

          Please file the foregoing opinion.


                  /s/ Dolores K. Sloviter
                 Circuit Judge