                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

USA v. Akinola
Precedential or Non-Precedential: Non-Precedential

Docket 02-2105




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Recommended Citation
"USA v. Akinola" (2003). 2003 Decisions. Paper 650.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/650


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                                                                                NOT PRECEDENTIAL

                              UNITED STATES COURT OF APPEALS
                                   FOR THE THIRD CIRCUIT
                                         __________

                                             NO. 02-2105
                                             __________

                                  UNITED STATES OF AMERICA

                                                     v.

                                          KOLE AKINOLA,
                                                Appellant
                                            _________

                            On Appeal from the United States District Court
                                      for the District of New Jersey
                                    (D.C. Criminal No. 02-cr-00013)
                           District Judge: Honorable Dickinson R. Debevoise
                                              __________

                             Submitted Under Third Circuit LAR 34.1(a)
                                         March 11, 2003
                    Before: RENDELL, AMBRO, and MAGILL*, Circuit Judges.

                                         (Filed April 16, 2003)
                                              __________

                                     OPINION OF THE COURT
                                           __________

RENDELL, Circuit Judge.

                On January 9, 2002, Kole Akinola, pursuant to a written plea agreement,

_______________________

   *    Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting
        by designation.

waived prosecution by indictment and pled guilty to a one-count Information filed in the
District of New Jersey, charging him with conspiracy to commit bank fraud in violation of

18 U.S.C. § 371. On April 8, 2002, the District Court sentenced Akinola principally to

time served and ordered him to pay restitution in the amount of $46,249.25. Akinola was

denied bail during his pretrial proceedings and, therefore, had been in custody since

May 25, 2001. He now appeals from his conviction and sentence. The District Court had

jurisdiction under 18 U.S.C. § 3231, and we now exercise jurisdiction pursuant to

28 U.S.C. § 1291.

        Akinola has filed a pro se brief presenting a number of possible grounds for appeal,

and counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that Akinola’s appeal presents no non-frivolous issues and requesting to withdraw

as counsel. In reviewing an Anders brief, we must determine if counsel adequately

presented his client’s case and if an independent review of the record reveals any non-

frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). Counsel’s

brief properly identifies those issues that might possibly support an appeal. After our

independent review of the record, we agree that each of these issues is frivolous.

        Akinola’s counsel first questions whether Akinola’s guilty plea was properly

accepted by the District Court under Federal Rule of Criminal Procedure 11. Rule 11

requires the court to address the defendant in open court, ensuring that he understands his

rights, the charges against him, the penalties, and the sentencing guidelines, and that his plea

is made voluntarily. Fed. R. Crim. P. 11. As illustrated in the record and in counsel’s brief,

the District Court fulfilled the requirements of Rule 11. In open court, the District Court

                                                      2
advised Akinola of his rights and found that he understood them. The Judge reviewed the

possible penalties and informed the defendant that the Court would use sentencing

guidelines to determine his sentence. Additionally, Akinola was told of the possibility of

restitution, of a term of supervised release, and of the consequences of violating these

provisions. The Court, therefore, properly accepted Akinola’s guilty plea.

        Defendant’s counsel also identifies as an issue the possibility that Akinola’s

sentence was imposed in violation of the law or as a result of an incorrect application of the

sentencing guidelines. The applicable guideline range was stipulated in the plea agreement

and the District Court properly sentenced Akinola within the appropriate range. Neither

Akinola nor his counsel have identified any defect in the sentencing calculation.

        Counsel addresses the possible argument that he rendered ineffective assistance in

his representation of Akinola and, in his pro se brief, Akinola does in fact raise this issue.

Ineffective assistance, however, is not normally considered on direct appeal, and we will

not do so here where the record fails to inform us on this issue. See United States v. Jake,

281 F.3d 123, 132 n.7 (3d Cir. 2002) (stating that claims for ineffective assistance of

counsel should be raised in a separate proceeding under 28 U.S.C. § 2255 rather than on

direct appeal); United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998) (refusing to

review an ineffective assistance of counsel claim on direct appeal without sufficient record

to dispose of the claim).

        In his brief, Akinola argues that his constitutional right to due process was violated

when the court denied him bail during the pre-conviction proceedings. This claim is moot

                                                      3
as a result of Akinola’s conviction. See Murphy v. Hunt, 455 U.S. 478, 481-82 (1982)

(holding that a plaintiff’s claim to pretrial bail is moot once the plaintiff is convicted).1

        Akinola also argues that insufficient proof was offered to support the order of

restitution in the amount of $46,249.25. As Akinola did not raise this issue at sentencing,

our review is for plain error only. See United State v. Coates, 178 F.3d 681 (3d Cir. 1999)

(finding that the Court must review the District Court’s order for restitution for plain error

when the defendant fails to object to the order at the sentencing hearing). The defendant

stated in court that he had reviewed and accepted the presentence investigation report. He

did not raise any objection to the report, which clearly stated that the amount of the loss by

the Banks exceeded $40,000, but was not more than $70,000. The presentence report also

indicated that the counterfeit checks that Akinola and his partners were responsible for

cashing totaled $46,249.25. The District Court did not commit plain error in basing its

restitution order on the unchallenged information contained in the presentence report. See

United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d Cir. 1999)

        Our review of the record indicates no reason to disturb the judgment of the District

Court. We find that counsel, as required by Anders, conducted a conscientious review of

the record and correctly concluded that there were no non-frivolous issues for appeal.




  1
    The Murphy Court acknowledged two exceptions to this mootness doctrine, neither of
which apply in the present case. A plaintiff can appeal the denial of his pretrial bail if he is
either bringing a class action suit, or if a reasonable probability exists that the party would
be subjected to this same type of denial again and “the challenged action was in its duration
too short to be fully litigated prior to cessation or expiration.” Murphy, 455 U.S. at 482.

                                                       4
Additionally, Akinola, in his brief, did not raise any meritorious claims for appeal. Our

independent review of the record did not reveal any non-frivolous claims. We are satisfied

that all requirements of the Anders procedure have been met.

        Accordingly, we will AFFIRM the Order of the District Court and, in a separate

order, will GRANT counsel’s motion to withdraw.




                                                    5
___________________________

TO THE CLERK OF COURT:

      Please file the foregoing Not Precedential Opinion.




                                              /s/ Marjorie O. Rendell
                                              Circuit Judge




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