United States v. Ogidi
This text of United States v. Ogidi (United States v. Ogidi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
23-6325-cr United States v. Ogidi
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 30th day of May, two thousand twenty-four. 4 5 PRESENT: 6 RICHARD C. WESLEY, 7 MICHAEL H. PARK, 8 BETH ROBINSON, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 23-6325-cr 17 18 Kelechi Ogidi, 19 20 Defendant-Appellant. 21 _____________________________________ 22 23 FOR APPELLEE: BENJAMIN D. KLEIN (Stephen J. Ritchin, on 24 the brief) Assistant United States Attorneys, 25 for Damian Williams, United States Attorney 26 for the Southern District of New York, New 27 York, NY. 28 29 FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders 30 of New York, Inc. Appeals Bureau, New 31 York, NY. 32 1 Appeal from a judgment of the United States District Court for the Southern District of
2 New York (Seibel, J.).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
4 DECREED that the judgment of the district court is AFFIRMED.
5 Defendant-Appellant Kelechi Ogidi was convicted of one count of being a felon in
6 possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to
7 51 months’ imprisonment—19 months below the bottom of a Sentencing Guidelines range of 70
8 to 87 months’ imprisonment. It imposed Ogidi’s sentence consecutive to any sentence received
9 for state charges that were pending at the time. Ogidi now challenges the constitutionality of his
10 conviction and the reasonableness of his sentence. We assume the parties’ familiarity with the
11 underlying facts, procedural history of the case, and issues on appeal.
12 I. The Constitutionality of Ogidi’s Conviction
13 Ogidi argues that the Supreme Court’s decision in New York State Rifle & Pistol
14 Association, Inc. v. Bruen, 597 U.S. 1 (2022), rendered § 922(g)(1) unconstitutional. We review
15 this argument for plain error because Ogidi did not raise it below. See United States v. Le, 902
16 F.3d 104, 109 (2d Cir. 2018) (reviewing an unpreserved argument that a statute is unconstitutional
17 for plain error). “For an error to be plain, it must, at a minimum, be clear under current law. We
18 typically will not find such error where the operative legal question is unsettled, including where
19 there is no binding precedent from the Supreme Court or this Court.” United States v. Whab, 355
20 F.3d 155, 158 (2d Cir. 2004) (cleaned up). At this time, no binding precedent holds that
21 § 922(g)(1) is unconstitutional. There was thus no plain error. See United States v. Brillon, No.
2 1 22-2956-cr, 2024 WL 392949, at *1 (2d Cir. Feb. 2, 2024) (summary order) (rejecting a
2 constitutional challenge to § 922(g)(1) under plain-error review).
3 II. The Reasonableness of Ogidi’s Sentence
4 Ogidi also challenges his sentence on several grounds. First, he argues that imposing the
5 sentence consecutive to, rather than concurrent with, any state sentence was procedurally
6 unreasonable because the district court determined that his pending state charges involved
7 “relevant conduct” but then overlooked § 5G1.3(c) of the Sentencing Guidelines in deciding
8 whether to impose a consecutive or concurrent sentence. See U.S.S.G. § 5G1.3(c) (2021) (“If . . .
9 a state term of imprisonment is anticipated to result from another offense that is relevant conduct
10 to the instant offense . . . the sentence for the instant offense shall be imposed to run concurrently
11 to the anticipated term of imprisonment.”); see also United States v. Coppola, 671 F.3d 220, 252
12 (2d Cir. 2012) (treating a challenge to the district court’s decision under § 5G1.3 as one challenging
13 procedural reasonableness).
14 Ogidi has not preserved this argument. His position below was that the district court
15 should impose a concurrent sentence even though he maintained that the pending state charges
16 were not related conduct. He did not object to the district court’s consecutive sentence based on
17 § 5G1.3(c). We thus review the district court’s decision for plain error. See United States v.
18 Smith, 949 F.3d 60, 66 (2d Cir. 2020). Under plain-error review, Ogidi must show that: “(1) there
19 is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error
20 affected [his] substantial rights; and (4) the error seriously affects the fairness, integrity or public
21 reputation of judicial proceedings.” United States v. Moore, 975 F.3d 84, 90 (2d Cir. 2020).
3 1 Ogidi cannot make this showing. His argument depends largely on the district court’s
2 passing statements at sentencing, including that Ogidi’s firearm “was discovered because it was
3 being used in connection with another crime.” App’x at 45. But the district court at other points
4 during the hearing stated that it did not view Ogidi’s pending state charges as relevant conduct,
5 including when the district court said that it had “not considered” and was “not taking into account”
6 the state charges. Id. at 44, 48-49. It is thus not “clear or obvious” that the district court
7 considered the state charges to be relevant conduct and so it is not “clear or obvious” that it should
8 have sentenced Ogidi concurrent with any future state sentence.
9 Ogidi’s remaining arguments go to substantive reasonableness, which we review under a
10 “deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
11 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Ogidi first argues that
12 the district court did not give sufficient weight to various aspects of his background and
13 characteristics. But the district court in fact considered both in light of Ogidi’s criminal history
14 and concluded that they “cut both ways.” App’x at 45. “The particular weight to be afforded
15 aggravating and mitigating factors is a matter firmly committed to the discretion of the sentencing
16 judge, with appellate courts seeking to ensure only that a factor can bear the weight assigned it
17 under the totality of circumstances in the case.” United States v. Broxmeyer, 699 F.3d 265, 289
18 (2d Cir. 2012) (cleaned up).
19 Second, Ogidi argues that the district court overlooked the conditions of his prior
20 imprisonment when crafting its sentence. But Ogidi argued below that those conditions merited
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