United States v. Felix-Ukwu

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2025
• Docket: 23-3771
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-3771 D.C. No. Plaintiff - Appellee, 2:18-cr-00529-MWF-2 v. MEMORANDUM*

FEMI FELIX-UKWU,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted February 11, 2025** Pasadena, California

Before: GRABER, HAMILTON***, and BUMATAY, Circuit Judges.

For his participation in a scheme to defraud Spirit Airlines out of free plane

tickets, defendant Femi Felix-Ukwu was convicted of conspiracy to commit wire

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David F. Hamilton, United States Circuit Judge for the Court of Appeals, Seventh Circuit, sitting by designation. fraud, conspiracy to commit identity theft, identity theft, and aggravated identity

theft. The district court sentenced Felix-Ukwu to 25 months in prison and three

years of supervised release. Felix-Ukwu timely appeals his convictions and

sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),

and we affirm.

1. Felix-Ukwu argues that the government’s cross-examination regarding

false statements that he made on his 2019 renewal application for a pharmacist’s

license was improper under Federal Rules of Evidence 404(b)(3) and 608(b).

Because Felix-Ukwu failed to make these objections at trial, we review only for

plain error. United States v. Koziol, 993 F.3d 1160, 1183 (9th Cir. 2021).

First, the district court did not plainly err by allowing the government to

cross-examine Felix-Ukwu about the false statements without complying with Rule

404(b)(3)’s notice requirement. The government asked about the false statements

for the sole purpose of impeaching Felix-Ukwu’s credibility. Impeachment

through cross-examination about specific instances probative of a witness’s

character for untruthfulness is governed by Rule 608(b). United States v. Olsen,

704 F.3d 1172, 1184 n.4 (9th Cir. 2013). It is not subject to Rule 404(b)(3)’s

notice requirement, which applies only to “other act[s]” evidence that tends to

establish a material fact at issue. United States v. Lague, 971 F.3d 1032, 1038 (9th

Cir. 2020); see United States v. Bagley, 772 F.2d 482, 487 (9th Cir. 1985)

2 23-3771 (explaining that evidence attacking a witness’s character for truthfulness “is not, in

itself, evidence of guilt or innocence”). Because the false statements were relevant

only to Felix-Ukwu’s character for truthfulness, the Rule 404(b)(3) notice

requirement did not apply.

Second, the district court did not plainly err by allowing the government to

use a physical copy of the 2019 application during its cross-examination. Rule

608(b) prohibits only “the admission into evidence of documents or testimony by

another witness to prove prior misconduct not resulting in a conviction.” United

States v. Jackson, 882 F.2d 1444, 1448 (9th Cir. 1989). Although the prosecutor

read from the 2019 application and presented it to Felix-Ukwu, the document was

not admitted into evidence.

2. Felix-Ukwu also claims that he received ineffective assistance of counsel

in violation of the Sixth Amendment. “However, as a general rule, we do not

review challenges to the effectiveness of defense counsel on direct appeal.” United

States v. Osorio-Arellanes, 112 F.4th 647, 658 (9th Cir. 2024) (citation and internal

quotation marks omitted). We consider ineffective assistance claims on direct

appeal only when “(1) the record ‘is sufficiently developed,’ or (2) an attorney’s

performance is ‘so inadequate that it obviously denies a defendant his Sixth

Amendment right to counsel.’” Id. (citation omitted). Except in such unusual

cases, we leave ineffective-assistance claims for possible litigation under 28 U.S.C.

3 23-3771 § 2255, where the parties will have an opportunity to make a factual record to

resolve those claims. Felix-Ukwu’s case does not fall within either limited

exception.

3. Felix-Ukwu argues that his 25-month total prison sentence violates the

Fifth Amendment’s Due Process Clause. If a district court’s sentencing decision is

procedurally sound, we review “the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 51 (2007). The district court complied with the law by imposing a 24-month

mandatory minimum sentence, consecutive to the sentence for all other charges,

for Felix-Ukwu’s conviction for aggravated identify theft. See 18 U.S.C.

§ 1028A(a)(1) & (b)(2). Felix-Ukwu does not challenge that portion of his

sentence. His challenge is thus limited to the substantive reasonableness of the

below-guideline one-month prison term that the district court imposed for his other

three convictions.

The district court did not abuse its discretion. The record shows that the

judge made a reasoned decision based on all the relevant factors under 18 U.S.C.

§ 3553(a), including the mitigating facts identified by Felix-Ukwu. Felix-Ukwu’s

below-guideline sentence is not excessively harsh compared to sentences imposed

on similarly situated defendants. United States v. Green, 592 F.3d 1057, 1071–72

(9th Cir. 2010). Moreover, Felix-Ukwu himself proposed the one-month sentence

4 23-3771 for the remaining charges. It was reasonable for the district court to impose the

sentence requested by Felix-Ukwu himself. See United States v. Medina-Luna, 98

F.4th 976, 981 (9th Cir. 2024) (finding no abuse of discretion where the district

court varied downward from the guideline range and “imposed the sentence that

Defendant himself had requested”).

AFFIRMED.

5 23-3771