14-3882-cr
United States v. Shoneyin

                            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.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 10th day of December, two thousand fifteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         RALPH K. WINTER,
         JOHN M. WALKER, Jr.,
                     Circuit Judges.
________________________________________________

UNITED STATES,
                            Appellee,

                            v.                                  No. 14-3882-cr

HANAN AHMAD,
                            Defendant,

TEMIDAYO SHONEYIN,

                     Defendant-Appellant.
________________________________________________

For the United States:             Andrew C. Adams, Justin Anderson, Assistant United States
                                   Attorneys, for Preet Bharara, United States Attorney for the
                                   Southern District of New York, New York, NY.

For Defendant-Appellant :          Israel Arana, Coral Gables, FL.
       Appeal from the United States District Court for the Southern District of New York

(Kaplan, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Temidayo Shoneyin appeals from a judgment of conviction entered

September 30, 2014, sentencing him principally to 48 months’ incarceration. Shoneyin pleaded

guilty, pursuant to a written plea agreement, to one count of conspiracy to commit wire fraud in

violation of 18 U.S.C. § 1349 and one count of theft of public funds in violation of 18 U.S.C. §§

641, 642. We assume the parties’ familiarity with the relevant facts, the procedural history, and

the issues presented for review.

       Shoneyin argues, for the first time on appeal, that the government breached the plea

agreement. Where, as here, the defendant failed to object to the alleged breach below, we review

only for plain error. Puckett v. United States, 556 U.S. 129, 133-34 (2009). Shoneyin contends

that the government breached the plea agreement by arguing that “a lengthy sentence of

incarceration, consistent with the recommendation under the Guidelines, is appropriate in this

case.” App. 22. However, no provision of the plea agreement prohibited the government from

making this argument. To the contrary, the plea agreement expressly permitted the government

to “make any arguments regarding where within the Stipulated Guidelines Range (or such other

range as the Court may determine) the defendant should be sentenced,” and even to “seek a

sentence outside of the Stipulated Guidelines Range.” App. 18. Shoneyin further contends that

the Probation Office breached the plea agreement by calculating a higher guidelines range than

that stipulated in the plea agreement. However, the plea agreement made clear that “neither the

Probation Office nor the Court is bound by the above Guidelines stipulation, either as to

questions of fact or as to the determination of the proper Guidelines to apply to the facts.”

Accordingly, we find no plain error.

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       Shoneyin also challenges the reasonableness of his sentence. Our review of the district

court’s sentence “encompasses two components: procedural review and substantive review.”

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Where, as here, a defendant

fails to raise his claim of procedural error in the district court, we review for plain error. United

States v. Wernick, 691 F.3d 108, 117 (2d Cir. 2012). Shoneyin contends the district court’s

application of a two-level leadership enhancement lacked a sufficient factual basis. However, the

undisputed facts in the Presentence Investigation Report establish that Shoneyin recruited

accomplices and directed them to carry out fraudulent bank transactions. Accordingly, the

district court did not commit plain error in applying the leadership enhancement. See USSG §

3B1.1 cmt. 4.

       Shoneyin also contends that his sentence was substantively unreasonable. A sentence is

substantively unreasonable “only in exceptional cases where the trial court’s decision ‘cannot be

located within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting United

States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)). Here, in light of the nearly $1 million in

economic loss that resulted from his crimes, Shoneyin’s recruitment of vulnerable accomplices,

and his five prior convictions in the United Kingdom, the 48-month sentence imposed by Judge

Kaplan was well within the range of permissible decisions.

       We have considered Shoneyin’s remaining arguments and find that they lack merit. For

the reasons given, we AFFIRM the judgment of the district court.


                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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