10-717-cr
United States v. Adebayo
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DO CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATIO N
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28 th day of March, two thousand eleven.

PRESENT:             DENNIS JACOBS,
                               Chief Judge,
                     GUIDO CALABRESI,
                     REENA RAGGI,
                               Circuit Judges.

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UNITED STATES OF AMERICA,
                                          Appellee,
                         v.                                            No. 10-717-cr

OLUREMI ADEBAYO, a.k.a. SUNDAY
ADEGBESAN,
                                          Defendant-Appellant.
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FOR APPELLANT:                   Marshall A. Mintz, Mintz & Oppenheim LLP, New York,
                                 New York.

FOR APPELLEE:                    Henry A. Chernoff (Katherine Polk Failla, on the brief),
                                 Assistant United States Attorneys, of Counsel, for Preet Bharara,
                                 United States Attorney for the Southern District of New York,
                                 New York, New York.
       Appeal from the United States District Court for the Southern District of New York

(William H. Pauley III, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on December 22, 2009, is AFFIRMED.

       Defendant Oluremi Adebayo stands convicted on pleas of guilty to conspiratorial and

substantive mail fraud, see 18 U.S.C. §§ 371, 1341, and illegal re-entry into the United

States, see 8 U.S.C. § 1326(a), (b)(2). On appeal, Adebayo challenges the reasonableness

of the prison sentence imposed for these crimes – concurrent terms of 60 months for the mail

fraud counts and 97 months for the unlawful re-entry count – on the ground of procedural

error, specifically, the district court’s failure to recognize its discretion pursuant to 18 U.S.C.

§ 3553(a) to assign mitigating weight to Adebayo’s substantial assistance even in the absence

of a government motion under U.S.S.G. § 5K1.1. See United States v. Sanchez, 517 F.3d

651, 661-62 (2d Cir. 2008) (error in determining authority to vary from Guidelines may be

procedurally unreasonable). We assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.1

       In considering Adebayo’s argument, we must “presume, in the absence of record

evidence suggesting otherwise, that a sentencing judge has faithfully discharged his duty to



       1
        We need not address the question of whether Adebayo’s appeal was timely filed,
because even assuming that it was, Adebayo would not be entitled to the relief he seeks. See
Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004) (noting that we may exercise
hypothetical jurisdiction where jurisdictional question is statutory, not constitutional).

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consider the statutory factors enumerated in § 3553(a).” United States v. Malki, 609 F.3d

503, 512 (2d Cir. 2010) (internal quotation marks omitted); see United States v. Fernandez,

443 F.3d 19, 33-34 (2d Cir. 2006) (applying presumption even where district court failed

explicitly to discuss defendant’s argument for sentencing consideration); United States v.

Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (holding that district court is “presumed to be

aware of departure authority in the absence of record evidence to the contrary or a novel issue

unlikely to have been fully appreciated” (citing United States v. Silleg, 311 F.3d 557, 561 (2d

Cir. 2002)).

       Nothing in the record of this case overcomes this presumption. Indeed, the record

indicates that defense counsel specifically urged that Adebayo be given sentencing

consideration for his substantial assistance despite the government’s decision not to move

for a § 5K1.1 departure. Nowhere in the record did the government argue that the district

court lacked discretion to afford such consideration. Moreover, in addressing Adebayo’s

various arguments for mitigation of sentence, the district court never indicated a

misunderstanding of its § 3553(a) discretion; to the contrary, the first fact it identified in its

§ 3553(a) analysis as taking Adebayo’s case out of the ordinary was his assistance to the

government.

       In urging otherwise, Adebayo points to the district court’s comment that, “had

[Adebayo] not fled” while on bail awaiting sentence, “he most likely or most certainly would

have received or been the beneficiary of an application by the government for a downward

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departure. But, he threw that out the window when he took off for Nigeria.” Sentencing Tr.

at 15. In context, this comment does not suggest the district court misunderstood its

sentencing discretion. Rather, it identified one reason – flight – among others – e.g.,

persistent recidivism – why the district court declined to exercise its discretion to afford

Adebayo more leniency than a sentence at the low end of the Guidelines range. On this

record, we identify no procedural error rendering the challenged sentence unreasonable.

       We have considered Adebayo’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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