Case: 19-14496 Date Filed: 07/23/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14496 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-00092-TCB-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLU VICTOR ALONGE, a.k.a. Serge Damessi, a.k.a. Didier Baraze,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(July 23, 2020) Case: 19-14496 Date Filed: 07/23/2020 Page: 2 of 7
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Olu Alonge pled guilty to wire fraud in violation of 18 U.S.C. § 1343 and
was sentenced to 120 months’ imprisonment. He appeals his sentence, arguing
that it was both procedurally and substantively unreasonable. Having reviewed the
briefs and the record, we affirm the district court.
BACKGROUND
In Alonge’s presentence report (PSR), Probation calculated a criminal
history category of I, a total offense level of 29, and a guideline range of 87 to 108
months. At sentencing, the district court adopted the findings of fact and the
conclusions of law contained in the PSR.
The government asked that Alonge be given a three-level reduction for
acceptance of responsibility, but the district court declined to do so because when
authorities tried to arrest him, Alonge “fled out of the window.” Instead, the
district court applied a two-level reduction for acceptance of responsibility. Such a
reduction should have brought Alonge’s total offense level to 27. However, when
discussing his final offense level, the district court stated that Alonge’s revised
offense level was 26 and that his resulting guideline range was between 63- and
78-months’ imprisonment.
2 Case: 19-14496 Date Filed: 07/23/2020 Page: 3 of 7
Though the parties recommended significantly shorter sentences, the district
court sentenced Alonge to 120 months’ imprisonment. It found this sentence
appropriate given that “[t]he crime described . . . in the PSR [was] one of sheer
unadulterated evil.” Noting that it had considered the 18 U.S.C. § 3553(a)
sentencing factors, the district court explained that a within-guideline sentence
would be “woefully inadequate,” because Alonge’s sentence needed “to reflect the
seriousness of the offense, [needed] to promote respect for the law, and [needed] to
provide just punishment for the offense.” Addressing the nature and circumstances
of the offense, the district court found that “the defendant ruined, literally
destroyed lives.” Furthermore, the district court believed that a 120-month
sentence would deter criminal conduct more effectively than a guideline sentence.
Finally, the district court explained that the sentence imposed was the result of
“sedate reflection,” considering all of the facts, arguments, and evidence.
DISCUSSION
I.
First, Alonge argues that the district court procedurally erred when it refused
to apply the additional one-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b). He claims that his entitlement to that reduction should be
based solely on whether he notified the government of his intention to plead guilty
in a timely manner.
3 Case: 19-14496 Date Filed: 07/23/2020 Page: 4 of 7
We review both the district court’s interpretation of the Sentencing
Guidelines and its application of the Guidelines to the facts de novo. United States
v. Cingari, 952 F.3d 1301, 1305 (11th Cir. 2020). And we review the
reasonableness of a sentencing decision for abuse of discretion. See United States
v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).
When reviewing a sentencing court’s decision, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007); see also United States v. Gomez, 955 F.3d
1250, 1255 (11th Cir. 2020) (per curiam).
A defendant’s offense level is decreased by two levels if he clearly
demonstrates acceptance of responsibility. U.S.S.G. § 3E1.1(a). If a defendant
meets the requirements in § 3E1.1(a), his offense level may be reduced by one
additional level “upon motion of the government stating that the defendant has
assisted authorities . . . by timely notifying authorities of his intention to enter a
plea of guilty.” § 3E1.1(b). A 2003 amendment to the Guidelines requires that the
government move for the reduction because it is in the best position to say whether
4 Case: 19-14496 Date Filed: 07/23/2020 Page: 5 of 7
it was notified of a defendant’s intention to plead guilty in a timely manner.
U.S.S.G. § 3E1.1 comment., (n.6); see also U.S.S.G. App. C, amend. 649
(effective April 30, 2003).
Prior to the 2003 amendment, we required that, when a defendant is awarded
a two-level reduction for acceptance of responsibility, the decision to grant the
additional one-level reduction should be based on whether the defendant timely
notified the government of his intention to plead guilty. See United States v.
Johnson, 132 F.3d 628, 631 (11th Cir. 1998) (per curiam). Since the 2003
amendment, we have not determined whether it is proper for a district court to
deny the government’s request for a § 3E1.1(b) reduction without making a factual
finding as to the timeliness of a defendant’s acceptance of responsibility.
Here, even if the district court erred when it refused to apply the additional
one-level U.S.S.G. § 3E1.1(b), that error was harmless. “[R]emand is required
only if the sentence was imposed as a result of an incorrect application of the
Guidelines.” Williams v. United States, 503 U.S. 193, 202–203 (1992) (internal
quotation marks omitted). “A Sentencing Guidelines miscalculation is harmless if
the district court would have imposed the same sentence without the error. United
States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009). If Alonge was entitled
to the additional one-level reduction, the properly calculated total offense level
would have been 26. This was the same total offense level calculated by the
5 Case: 19-14496 Date Filed: 07/23/2020 Page: 6 of 7
district court, albeit accidentally, and announced at the sentencing hearing. Thus,
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Case: 19-14496 Date Filed: 07/23/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14496 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-00092-TCB-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OLU VICTOR ALONGE, a.k.a. Serge Damessi, a.k.a. Didier Baraze,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(July 23, 2020) Case: 19-14496 Date Filed: 07/23/2020 Page: 2 of 7
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Olu Alonge pled guilty to wire fraud in violation of 18 U.S.C. § 1343 and
was sentenced to 120 months’ imprisonment. He appeals his sentence, arguing
that it was both procedurally and substantively unreasonable. Having reviewed the
briefs and the record, we affirm the district court.
BACKGROUND
In Alonge’s presentence report (PSR), Probation calculated a criminal
history category of I, a total offense level of 29, and a guideline range of 87 to 108
months. At sentencing, the district court adopted the findings of fact and the
conclusions of law contained in the PSR.
The government asked that Alonge be given a three-level reduction for
acceptance of responsibility, but the district court declined to do so because when
authorities tried to arrest him, Alonge “fled out of the window.” Instead, the
district court applied a two-level reduction for acceptance of responsibility. Such a
reduction should have brought Alonge’s total offense level to 27. However, when
discussing his final offense level, the district court stated that Alonge’s revised
offense level was 26 and that his resulting guideline range was between 63- and
78-months’ imprisonment.
2 Case: 19-14496 Date Filed: 07/23/2020 Page: 3 of 7
Though the parties recommended significantly shorter sentences, the district
court sentenced Alonge to 120 months’ imprisonment. It found this sentence
appropriate given that “[t]he crime described . . . in the PSR [was] one of sheer
unadulterated evil.” Noting that it had considered the 18 U.S.C. § 3553(a)
sentencing factors, the district court explained that a within-guideline sentence
would be “woefully inadequate,” because Alonge’s sentence needed “to reflect the
seriousness of the offense, [needed] to promote respect for the law, and [needed] to
provide just punishment for the offense.” Addressing the nature and circumstances
of the offense, the district court found that “the defendant ruined, literally
destroyed lives.” Furthermore, the district court believed that a 120-month
sentence would deter criminal conduct more effectively than a guideline sentence.
Finally, the district court explained that the sentence imposed was the result of
“sedate reflection,” considering all of the facts, arguments, and evidence.
DISCUSSION
I.
First, Alonge argues that the district court procedurally erred when it refused
to apply the additional one-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1(b). He claims that his entitlement to that reduction should be
based solely on whether he notified the government of his intention to plead guilty
in a timely manner.
3 Case: 19-14496 Date Filed: 07/23/2020 Page: 4 of 7
We review both the district court’s interpretation of the Sentencing
Guidelines and its application of the Guidelines to the facts de novo. United States
v. Cingari, 952 F.3d 1301, 1305 (11th Cir. 2020). And we review the
reasonableness of a sentencing decision for abuse of discretion. See United States
v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).
When reviewing a sentencing court’s decision, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007); see also United States v. Gomez, 955 F.3d
1250, 1255 (11th Cir. 2020) (per curiam).
A defendant’s offense level is decreased by two levels if he clearly
demonstrates acceptance of responsibility. U.S.S.G. § 3E1.1(a). If a defendant
meets the requirements in § 3E1.1(a), his offense level may be reduced by one
additional level “upon motion of the government stating that the defendant has
assisted authorities . . . by timely notifying authorities of his intention to enter a
plea of guilty.” § 3E1.1(b). A 2003 amendment to the Guidelines requires that the
government move for the reduction because it is in the best position to say whether
4 Case: 19-14496 Date Filed: 07/23/2020 Page: 5 of 7
it was notified of a defendant’s intention to plead guilty in a timely manner.
U.S.S.G. § 3E1.1 comment., (n.6); see also U.S.S.G. App. C, amend. 649
(effective April 30, 2003).
Prior to the 2003 amendment, we required that, when a defendant is awarded
a two-level reduction for acceptance of responsibility, the decision to grant the
additional one-level reduction should be based on whether the defendant timely
notified the government of his intention to plead guilty. See United States v.
Johnson, 132 F.3d 628, 631 (11th Cir. 1998) (per curiam). Since the 2003
amendment, we have not determined whether it is proper for a district court to
deny the government’s request for a § 3E1.1(b) reduction without making a factual
finding as to the timeliness of a defendant’s acceptance of responsibility.
Here, even if the district court erred when it refused to apply the additional
one-level U.S.S.G. § 3E1.1(b), that error was harmless. “[R]emand is required
only if the sentence was imposed as a result of an incorrect application of the
Guidelines.” Williams v. United States, 503 U.S. 193, 202–203 (1992) (internal
quotation marks omitted). “A Sentencing Guidelines miscalculation is harmless if
the district court would have imposed the same sentence without the error. United
States v. Barner, 572 F.3d 1239, 1247–48 (11th Cir. 2009). If Alonge was entitled
to the additional one-level reduction, the properly calculated total offense level
would have been 26. This was the same total offense level calculated by the
5 Case: 19-14496 Date Filed: 07/23/2020 Page: 6 of 7
district court, albeit accidentally, and announced at the sentencing hearing. Thus,
this purported procedural error is not adequate grounds for reversal because it did
not impact the outcome of the proceeding.
II.
Next, Alonge claims that the sentence was substantively unreasonable
because the district court “essentially doubled the [g]uideline range, . . . based on
the court’s wrath and undue focus on the cries of the victims.” A “district court’s
choice of sentence is not unfettered,” Irey, 612 F.3d at 1191, and we review the
substantive reasonableness of a sentence for an abuse of discretion, Gomez, 955
F.3d at 1255. But we “will not second guess the weight (or lack thereof) that the
judge accorded to a given factor . . . under § 3553(a), as long as the sentence
ultimately imposed is reasonable in light of all the circumstances presented.”
United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (alteration accepted)
(emphasis omitted).
Here, the sentence imposed by the district court was substantively
reasonable because the court decided that an above-guidelines sentence was
necessary to reflect the seriousness of the offense, to promote respect for the law,
to provide a just punishment, and to adequately deter future criminal conduct.
Even if the district court placed more weight on some of the § 3553(a) than others,
doing so was not an abuse of discretion. See id. The weight assigned to each
6 Case: 19-14496 Date Filed: 07/23/2020 Page: 7 of 7
factor is committed to the district court’s discretion, and we review that discretion
with deference. See United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir.
2016). We refuse to second guess the district court’s sentencing decision absent a
“definite and firm conviction that the district court committed a clear error of
judgement.” Irey, 612 F.3d at 1190. We have no such conviction here.
Accordingly, the district court’s imposition of a 120-month sentence is
AFFIRMED.