United States v. Ugochukwu Lazarus Onebunne

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 6, 2020
• Docket: 20-10287
• Status: Unpublished

Opinion

Case: 20-10287 Date Filed: 08/06/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10287 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-00092-TCB-LTW-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

UGOCHUKWU LAZARUS ONEBUNNE, a.k.a. Policap Tizhe, a.k.a. Saheed Ademoha, a.k.a. Ugochukwu Lazarus Onebunne,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(August 6, 2020) Case: 20-10287 Date Filed: 08/06/2020 Page: 2 of 6

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Ugochukwu Onebunne appeals his total 120-month above-guideline

sentence, arguing it was imposed due to the government’s breach of the plea

agreement and that it is substantively unreasonable. For the following reasons, we

affirm.

I.

First, the plea-agreement issue. We review de novo the question of whether

the government breached a plea agreement when the defendant preserved the issue.

United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). A defendant

“must make all [his] objections to a sentencing court’s findings of fact, conclusions

of law, and the manner in which the sentence was imposed at the initial sentencing

hearing.” United States v. Ladson, 643 F.3d 1335, 1342 (11th Cir. 2011) (internal

quotation mark omitted).

But when a defendant fails to preserve an issue, we review only for plain

error. United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Plain error

exists where (1) there is an error; (2) that is plain; (3) that affected the defendant’s

substantial rights; and (4) that seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. Puckett v. United States, 556 U.S. 129, 135

(2009). An error is plain if it is “clear or obvious, rather than subject to reasonable

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dispute.” Id. In the context of an alleged plea-agreement breach, the question of

whether the defendant’s substantial rights were affected is not whether the

defendant would have entered into the plea, but rather whether his sentence was

affected by the government’s breach. Id. at 142 n.4.

To determine whether the government breached a plea agreement, we

“determine the scope of the government’s promises.” Copeland, 381 F.3d at 1105.

In doing so, we “apply an objective standard” to determine “whether the

government’s actions [were] inconsistent with what the defendant reasonably

understood” when he pled guilty. Id. We will not use a “hyper-technical” or a

“rigidly literal approach” to interpret the agreement. Id.

Here, Onebunne did not object about an alleged breach of the plea

agreement at the sentencing hearing. Nevertheless, citing no law, he insists that he

preserved the breach issue by filing a supplemental objection the day after the

hearing. But, as we stated in Ladson, those objections must take place “at the

initial sentencing hearing.” See 643 F.3d at 1342. Therefore, we review this issue

for plain error. See Romano, 314 F.3d at 1281.

But no matter how we review this issue, we see no reason for resentencing in

front of a different judge because there was no breach. The government’s

sentencing arguments were entirely consistent with the plea agreement. In the plea

agreement, “the Government agree[d] to recommend that the Defendant be

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sentenced at the high-end of the adjusted guideline range.” It did just that. The

adjusted guideline range was 57 to 71 months; the government argued repeatedly

for a sentence of 71 months, the “high-end” of the range. To be sure, the

government alluded to Onebunne’s codefendant’s sentence and sending a message.

But context reveals that there was nothing improper about those allusions. In fact,

the government explicitly distinguished Onebunne from his codefendant: When the

district court asked the government why Onebunne deserved a lower sentence than

his codefendant, the government explained how it saw Onebunne as less culpable.

The government unquestionably fulfilled its promise to Onebunne. And in any

event, Onebunne fails to show any of the other plain-error elements. See Puckett,

556 U.S. at 135. Accordingly, we affirm on this issue.

II.

Next, we consider whether Onebunne’s sentence was substantively

unreasonable. We review the substantive reasonableness of a sentence under an

abuse of discretion standard. United States v. Gomez, 955 F.3d 1250, 1255 (11th

Cir. 2020) (per curiam). “The party challenging a sentence has the burden of

showing that the sentence is unreasonable in light of the entire record, the [18

U.S.C.] § 3553(a) factors, and the substantial deference afforded sentencing

courts.” Id.; see also United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir.

2020). The vast discretion the district court enjoys is abused, though, “if it (1) fails

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to consider relevant factors that were due significant weight, (2) gives an improper

or irrelevant factor significant weight, or (3) commits a clear error of judgment by

unreasonably balancing the proper factors.” Goldman, 953 F.3d at 1222. “A

sentence imposed well below the statutory maximum penalty is an indicator of

reasonableness.” Id.

Onebunne has failed to carry his burden to show that his sentence is

substantively unreasonable. See Gomez, 955 F.3d at 1255; Goldman, 953 F.3d at

1222. The district court did not abuse its discretion here. Both parties referenced

the § 3553(a) factors in their arguments, as did the court in its explanation for the

sentence. Beyond that, the court explicitly said it considered all the § 3553(a)

factors, acknowledged that it was imposing a variance sentence, and explained

why: The guideline range “does not come close to providing adequate deterrence

and adequate punishment” because the crime was “pure evil, . . . not accounted for

by the guideline range.” The court explained why it saw Onebunne as an essential

participant in the crime—a fraud conspiracy that involved lying to gain the trust of

individuals who were simply looking for love and companionship and then

violating that trust for monetary gain. The court considered all relevant factors, did

not give an improper factor significant weight, and did not commit a clear error of

judgment by improperly balancing the factors. We see no indicia of abuse here.

See Goldman, 953 F.3d at 1222. For good measure, we note that Onebunne’s

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sentence of 120 months (i.e., 10 years) was half the statutory maximum of 20

years, which indicates reasonableness. See id.; 18 U.S.C. §§ 1343, 1349.

Accordingly, we affirm the sentence.

AFFIRMED.