REVISED - August 12, 1999
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 98-50574 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY ALOZIE OGBONNA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________
August 5, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Anthony Alozie Ogbonna appeals his convictions for involvement
in drug activity. Ogbonna was convicted of conspiracy to possess
with intent to distribute heroin in violation of 21 U.S.C. § 846,
and possession with intent to distribute heroin in violation of 21
U.S.C. § 841(a)(1). The conviction was the fruit of an extensive,
undercover investigation. Ogbonna presents us with a handful of
arguments challenging his conviction and sentence. We reject all
of his arguments and affirm both the conviction and sentence.
I After learning about the existence of a drug ring in Austin,
Texas, Investigator Troy Officer went undercover in order to gain
information about the conspiracy. During his undercover
operations, Investigator Officer met with Ogbonna on multiple
occasions and engaged in multiple drug transactions. Ogbonna does
not dispute this, and for good reason: the police obtained both
video and audio recordings of Ogbonna’s drug transactions.
We briefly summarize Ogbonna’s known, drug-related activities
by noting that Ogbonna sold over 440 grams of heroin to
Investigator Officer; Ogbonna promised to sell Officer much larger
quantities of heroin; Ogbonna gave Officer a semi-automatic
firearm; and Ogbonna informed Officer that he possessed hand
grenades. These facts are not disputed on appeal.
After a jury found Ogbonna guilty of the drug offenses, the
district court sentenced him to twenty-seven years in prison.
Pursuant to the Sentencing Guidelines, the district court based
this sentence on the amount of drugs involved, Ogbonna’s role in
the offenses, and Ogbonna’s possession of a dangerous weapon.
II
Before addressing the merits of Ogbonna’s arguments, we
dispose of Ogbonna’s motion to file a supplemental pro se brief.
Ogbonna asks us to allow the filing of his pro se supplemental
brief even though his attorney has already filed what is clearly a
-2- competent brief on Ogbonna’s behalf. We DENY Ogbonna’s motion to
file a pro se brief.1
The brief submitted by Ogbonna plainly demonstrates why
allowing the submission of a pro se brief should be discouraged
when the appellant is represented by counsel. The argument in
Ogbonna’s supplemental brief relies on the defunct holding in
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998)
(“Singleton I”), rev’d en banc 165 F.3d 1297 (10th Cir. 1999).
Over one month before Ogbonna’s pro se brief was filed with our
court, the Tenth Circuit repudiated the holding and reasoning in
Singleton I. More importantly, our own court squarely rejected the
reasoning in Singleton I over two months before filing of the pro
se brief. See United States v. Haese, 162 F.3d 359, 366-68 & n.2
(5th Cir. 1998). The pro se brief omits any mention of these
subsequent cases. There simply is no reason for the court to
entertain such frivolous arguments, which constitute sanctionable
conduct, when the appellant is represented by counsel.2
1 See Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996):
[T]here is no constitutional right to hybrid representation [on appeal.] Thus, when a criminal appellant accepts the assistance of counsel, but later objects to his attorney’s appeal strategy or preparation of the brief, the criminal appellant cannot then expect to be allowed to file a supplemental pro se brief. By accepting the assistance of counsel the criminal appellant waives his right to present pro se briefs on direct appeal. 2 Ogbonna’s counsel comes close to warranting sanctions himself. Although he did not sign onto Ogbonna’s pro se brief, he did file and sign the motion to file Ogbonna’s supplemental brief.
-3- III
A
Ogbonna makes one argument for overturning his conviction. He
argues that the district court erred by allowing two pieces of
evidence into his trial: evidence of the semi-automatic firearm
that Ogbonna gave to Officer and testimony of Ogbonna’s claimed
ability to procure hand grenades. We will not, however, even pause
to consider whether the district court abused its ample discretion
in allowing this weapons-evidence into a drug offense trial. Any
error that may have occurred was surely harmless. See United
States v. Green, No. 98-30484, 1999 WL 439438, at *4 (5th Cir.
June 30, 1999) (noting that if an abuse of discretion is found in
district court’s evidentiary ruling, the harmless error doctrine is
applied). The other evidence of Ogbonna’s involvement in the drug
conspiracy was overwhelming and included both audio and video
recordings of his unlawful, drug-related conduct.
B
Ogbonna next makes four arguments attacking his sentence.
“We review de novo a district court’s application of the
[Sentencing] Guidelines, but will reverse factual findings made
This motion was physically bound with the pro se brief itself. Attorneys are not to file or give aid in filing briefs that base their arguments on case law contrary to binding Fifth Circuit precedent without mentioning the binding precedent. Frivolous arguments are not to be made to this court. See, e.g., Fed. R. App. P. 38.
-4- during sentencing only if they are clearly erroneous.” United
States v. Washington, 44 F.3d 1271, 1280 (5th Cir. 1995).
First, Ogbonna argues that the district court clearly erred in
attributing at least one, but less than three, kilograms of heroin
to him for sentencing purposes. He maintains that he should only
have 441.31 grams attributed to him for sentencing purposes because
that is the amount he actually sold to Investigator Officer.
Although Ogbonna concedes that he told Officer on several occasions
that he possessed and could acquire much more heroin (on one
occasion telling Officer that he had one kilogram available at that
time; on another occasion telling Officer that he could deliver two
kilograms without a problem), he now argues that he was incapable
of acquiring that much heroin.
But for Ogbonna’s argument to succeed, he must extend his
argument further. He must argue not only that he was incapable of
possessing an additional 560 grams (recall that he had already
Free access — add to your briefcase to read the full text and ask questions with AI
REVISED - August 12, 1999
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 98-50574 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY ALOZIE OGBONNA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________
August 5, 1999
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Anthony Alozie Ogbonna appeals his convictions for involvement
in drug activity. Ogbonna was convicted of conspiracy to possess
with intent to distribute heroin in violation of 21 U.S.C. § 846,
and possession with intent to distribute heroin in violation of 21
U.S.C. § 841(a)(1). The conviction was the fruit of an extensive,
undercover investigation. Ogbonna presents us with a handful of
arguments challenging his conviction and sentence. We reject all
of his arguments and affirm both the conviction and sentence.
I After learning about the existence of a drug ring in Austin,
Texas, Investigator Troy Officer went undercover in order to gain
information about the conspiracy. During his undercover
operations, Investigator Officer met with Ogbonna on multiple
occasions and engaged in multiple drug transactions. Ogbonna does
not dispute this, and for good reason: the police obtained both
video and audio recordings of Ogbonna’s drug transactions.
We briefly summarize Ogbonna’s known, drug-related activities
by noting that Ogbonna sold over 440 grams of heroin to
Investigator Officer; Ogbonna promised to sell Officer much larger
quantities of heroin; Ogbonna gave Officer a semi-automatic
firearm; and Ogbonna informed Officer that he possessed hand
grenades. These facts are not disputed on appeal.
After a jury found Ogbonna guilty of the drug offenses, the
district court sentenced him to twenty-seven years in prison.
Pursuant to the Sentencing Guidelines, the district court based
this sentence on the amount of drugs involved, Ogbonna’s role in
the offenses, and Ogbonna’s possession of a dangerous weapon.
II
Before addressing the merits of Ogbonna’s arguments, we
dispose of Ogbonna’s motion to file a supplemental pro se brief.
Ogbonna asks us to allow the filing of his pro se supplemental
brief even though his attorney has already filed what is clearly a
-2- competent brief on Ogbonna’s behalf. We DENY Ogbonna’s motion to
file a pro se brief.1
The brief submitted by Ogbonna plainly demonstrates why
allowing the submission of a pro se brief should be discouraged
when the appellant is represented by counsel. The argument in
Ogbonna’s supplemental brief relies on the defunct holding in
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998)
(“Singleton I”), rev’d en banc 165 F.3d 1297 (10th Cir. 1999).
Over one month before Ogbonna’s pro se brief was filed with our
court, the Tenth Circuit repudiated the holding and reasoning in
Singleton I. More importantly, our own court squarely rejected the
reasoning in Singleton I over two months before filing of the pro
se brief. See United States v. Haese, 162 F.3d 359, 366-68 & n.2
(5th Cir. 1998). The pro se brief omits any mention of these
subsequent cases. There simply is no reason for the court to
entertain such frivolous arguments, which constitute sanctionable
conduct, when the appellant is represented by counsel.2
1 See Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996):
[T]here is no constitutional right to hybrid representation [on appeal.] Thus, when a criminal appellant accepts the assistance of counsel, but later objects to his attorney’s appeal strategy or preparation of the brief, the criminal appellant cannot then expect to be allowed to file a supplemental pro se brief. By accepting the assistance of counsel the criminal appellant waives his right to present pro se briefs on direct appeal. 2 Ogbonna’s counsel comes close to warranting sanctions himself. Although he did not sign onto Ogbonna’s pro se brief, he did file and sign the motion to file Ogbonna’s supplemental brief.
-3- III
A
Ogbonna makes one argument for overturning his conviction. He
argues that the district court erred by allowing two pieces of
evidence into his trial: evidence of the semi-automatic firearm
that Ogbonna gave to Officer and testimony of Ogbonna’s claimed
ability to procure hand grenades. We will not, however, even pause
to consider whether the district court abused its ample discretion
in allowing this weapons-evidence into a drug offense trial. Any
error that may have occurred was surely harmless. See United
States v. Green, No. 98-30484, 1999 WL 439438, at *4 (5th Cir.
June 30, 1999) (noting that if an abuse of discretion is found in
district court’s evidentiary ruling, the harmless error doctrine is
applied). The other evidence of Ogbonna’s involvement in the drug
conspiracy was overwhelming and included both audio and video
recordings of his unlawful, drug-related conduct.
B
Ogbonna next makes four arguments attacking his sentence.
“We review de novo a district court’s application of the
[Sentencing] Guidelines, but will reverse factual findings made
This motion was physically bound with the pro se brief itself. Attorneys are not to file or give aid in filing briefs that base their arguments on case law contrary to binding Fifth Circuit precedent without mentioning the binding precedent. Frivolous arguments are not to be made to this court. See, e.g., Fed. R. App. P. 38.
-4- during sentencing only if they are clearly erroneous.” United
States v. Washington, 44 F.3d 1271, 1280 (5th Cir. 1995).
First, Ogbonna argues that the district court clearly erred in
attributing at least one, but less than three, kilograms of heroin
to him for sentencing purposes. He maintains that he should only
have 441.31 grams attributed to him for sentencing purposes because
that is the amount he actually sold to Investigator Officer.
Although Ogbonna concedes that he told Officer on several occasions
that he possessed and could acquire much more heroin (on one
occasion telling Officer that he had one kilogram available at that
time; on another occasion telling Officer that he could deliver two
kilograms without a problem), he now argues that he was incapable
of acquiring that much heroin.
But for Ogbonna’s argument to succeed, he must extend his
argument further. He must argue not only that he was incapable of
possessing an additional 560 grams (recall that he had already
delivered over 440 grams), but that he was not part of a conspiracy
that possessed 560 grams. See U.S.S.G. § 1B1.3(a)(1)(B)(discussing
relevant conduct of a conspirator for sentencing purposes); United
States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994) (discussing
-5- § 1B1.3(a)(1)(B)).3 We conclude that the district court did not
err in attributing over 1 kilogram of heroin to Ogbonna.
C
Next, Ogbonna argues that the district court clearly erred in
finding that he possessed a dangerous weapon during a drug
trafficking offense. See U.S.S.G. § 2D1.1(b)(1). The evidence
revealed that Ogbonna gave Investigator Officer a “Mac-10" semi-
automatic firearm and that Ogbonna told Officer that he had carried
a firearm during their first transaction. Ogbonna now argues that
he did not give Officer the Mac-10 during a drug transaction. He
further argues, without any citation to support the proposition,
that “Officer’s testimony that [Ogbonna] told him he had a gun at
their first meeting three months earlier, without any evidence of
the actual gun, cannot support a two level enhancement.” To the
contrary, a district court could find, by a preponderance of the
evidence, that a defendant possessed a firearm at a previous
meeting when, sometime later, that defendant tells an undercover
officer that he possessed a firearm. Such a conclusion is
bolstered by evidence showing that the defendant had easy access to
firearms (as was shown when Ogbonna gave Officer the Mac-10). The
3 Ogbonna relies on United States v. Davis, 76 F.3d 82, 85 (5th Cir. 1996), for the proposition that a district court may not attribute to a defendant the amount of drugs in an unconsummated transaction if the defendant was not reasonably capable of producing that amount. In Davis, however, we did not consider the attributable drug amount in the context of a conspiracy. In that case, the defendant only pled guilty to a violation of 21 U.S.C. § 841(a)(1) (possession with intent to distribute).
-6- district court did not clearly err in its finding of fact. The
enhancement under § 2D1.1(b)(1) was appropriate.
D
Ogbonna challenges the district court’s decision to enhance
his sentence under U.S.S.G. § 3B1.1(a):
Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
Ogbonna argues (1) that he was not an organizer or leader, and (2)
that the conspiracy did not involve five or more participants, nor
was it otherwise extensive. After reviewing the evidence and
record of the case, we conclude that the district court did not
clearly err in making the factual finding that the criminal
activity was “otherwise extensive”4 and that Ogbonna was an
organizer or leader.
E
Finally, in his last sentencing challenge, Ogbonna argues that
the district court erred in refusing to depart downward for what
Ogbonna describes as a classic case of sentencing entrapment.
Ogbonna claims that he was not predisposed to sell over 400 grams
of heroin to a willing buyer. Only after the government agents
4 The transcript of the sentencing hearing indicates that the district court relied on the “otherwise extensive” language in § 3B1.1 in overruling Ogbonna’s objection to this enhancement.
-7- goaded him on, continues Ogbonna’s argument, did he continue to
supply more heroin. Ogbonna argues that the government should have
arrested him after the first transaction, thus, cutting short his
criminal liability. Ogbonna asked the district court to depart
downward from the otherwise applicable guideline range as allowed
by U.S.S.G. § 4A1.3. Ogbonna appeals the district court’s decision
to reject his request.
We do not have appellate jurisdiction to address this
argument. Under 18 U.S.C. § 3742(a), “[w]e have jurisdiction to
review a defendant’s challenge to a sentence only if it was imposed
in violation of law; was imposed as a result of a misapplication of
the sentencing guidelines; was the result of an upward departure;
or was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” United States v. DiMarco,
46 F.3d 476, 477 (5th Cir. 1995). When a defendant makes a motion
for a downward departure under § 4A1.3, based on the defense of
sentence entrapment, we lack appellate jurisdiction to review the
district court’s disposition of the motion. See United States v.
Morgan, 117 F.3d 849, 860-61 (5th Cir. 1997); United States v.
Jones, 102 F.3d 804, 809 (6th Cir. 1996); see also DiMarco, 46 F.3d
at 477 (stating that “claims challenging the discretionary denial
of downward departures do not fall within any of the categories
-8- listed in § 3742(a)”). Ogbonna’s sentencing entrapment argument,
therefore, cannot provide grounds for reversing his sentence.5
III
For the foregoing reasons, both the conviction and sentence
are
A F F I R M E D.
5 Nothing in the record indicates that the district court based its decision on an erroneous belief that it lacked the authority to depart. See United States v. Landerman, 167 F.3d 895 (5th Cir. 1999):
We have jurisdiction to review a district court’s decision not to depart downward from the guideline range only if the district court based its decision upon an erroneous belief that it lacked the authority to depart. Moreover, something in that record must indicate that the district court held such an erroneous belief.
Id. at 899 (citations omitted).
-9-