                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3310




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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 06-3310
                                     ___________

                             UNITED STATES OF AMERICA,

                                                       Appellee


                                            v.

                                  FELIX YAW OPPONG
                                  A/K/A YAW OPPONG

                                  Fellix Yaw Oppong,

                                                          Appellant

                             ________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. No: 02-cr-00455)
                      District Judge: Honorable Mary L. Cooper
                             ________________________


                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 29, 2007

     Before: BARRY, FUENTES, Circuit Judges, and* DIAMOND, District Judge.

                           (Opinion Filed December 7, 2007)



*
Honorable Paul S. Diamond, District Judge for the United States District Court of the
Eastern District of Pennsylvania, sitting by designation.
                                       ___________

                               OPINION OF THE COURT
                                    ____________

FUENTES, Circuit Judge.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       Felix Oppong, defendant-appellant, was convicted after a jury trial of conspiracy

to distribute and to possess with intent to distribute more than five kilograms of cocaine

and conspiracy to export more than five kilograms of cocaine. Oppong’s guideline range

was 235 to 293 months and he was originally sentenced to 240 months. After United

States v. Booker, 543 U.S. 220 (2005), the Third Circuit affirmed his conviction and

remanded for resentencing, and the District Court imposed the same sentence. This

appeal followed resentencing. Since this decision is written for the benefit of the parties,

only the facts relevant to the resolution of the claims presented by Oppong are discussed

below.1

II.    DISCUSSION

       A.     Judge Found Facts

       In his appeal, Oppong essentially argues that his sentence is unreasonable because

the District Court judge found facts raising his guideline range from a maximum of 151


1
 The District Court had federal subject matter jurisdiction over this case under 18 U.S.C.
§ 3231. This court has jurisdiction to review the defendant’s sentence pursuant to 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                             2
months to a maximum of 293 months. This claim has no merit. Post Booker, the Third

Circuit has held that district courts must find sentencing facts by a preponderance of the

evidence, as they did prior to the decision in Booker. United States v. Cooper, 437 F.3d

324, 330 (3d Cir. 2006). The right to have facts decided by a jury – as opposed to the

judge – does not extend to enhancements available under the sentencing guidelines.

Booker, 543 U.S. at 233.

       B.     Enhancement for Managerial Role

       At resentencing, the District Court judge incorporated her ruling from the original

sentencing hearing on the two-point enhancement for supervisory or managerial role

under U.S.S.G. § 3B1.1(c). In the original hearing, the District Court found that Oppong

had begun his involvement with the drug conspiracy as a courier but that he had become

an investor with Albert Kittoe, a purchaser from Ramon Ramos, and that he was

instrumental in the recruitment of Ayreh Odoi. Because of Oppong’s involvement in the

conspiracy in roles other than merely as a courier, the District Court found that the two-

point enhancement for his role was appropriate. Oppong’s argument that this finding was

clearly erroneous fails. In order to assign a two-point enhancement pursuant to U.S.S.G.

§ 3B1.1(c), the court need only find that the defendant be “an organizer, leader, manager,

or supervisor in any criminal activity.” Under Third Circuit precedent, “a manager or

supervisor is one who exercises some degree of control over others involved in the

offense.” United States v. Chau, 293 F.3d 96, 103 (3d Cir. 2002) (quotations and

alterations omitted); see also United States v. Fiorelli, 133 F.3d 218, 220 (3d Cir. 1998)

                                             3
(finding that defendant “recruited and supervised” another person involved in the crime

sufficient for enhancement pursuant to U.S.S.G. § 3B1.1). In this case, the District Court

did not clearly err in applying the two-point enhancement, given its finding that Oppong

recruited and managed Odoi’s courier trips and acted as an investor and purchaser for the

conspiracy.

       C.     Reduction for Minor Role

       Oppong makes two claims with respect to his request for a downward adjustment

for his minor participation in the conspiracy, pursuant to U.S.S.G. § 3B1.2(b). First,

Oppong claims that the District Court erroneously failed to consider his request at all

because it improperly considered the upward adjustment for managerial role, which it

applied, and the downward adjustment for minor role to be mutually exclusive, citing

United States v. Tsai, 954 F.2d 155, 167 (3d Cir. 1992). In Tsai, the Third Circuit

remanded because the District Court had erroneously assumed that the enhancement in

U.S.S.G. § 3B1.1 precluded consideration of a reduction in U.S.S.G. § 3B1.2. However,

we have no indication here that the District Court considered the downward adjustment to

have been precluded by the enhancement for managerial role. Rather, the court directly

stated that it “den[ied] the 2 point downward mitigating role adjustment.” (App. 4832.)

       Oppong’s second argument, that the District Court clearly erred by not applying

the downward adjustment, also fails. The application notes for § 3B1.2(b) provide that

the reduction for minor role “applies to a defendant . . . who is less culpable than most

other participants, but whose role could not be described as minimal.” Oppong’s

                                             4
argument that he should have received the reduction because “most” of the evidence at

trial showed that he acted as a courier on two occasions, a minor role, fails. The District

Court credited testimony that Oppong had acted as an investor, buyer, and recruiter for

the conspiracy. After the Court made these findings, the Court did not clearly err by

denying the downward adjustment for minor role.

       D.     Quantity of Cocaine

       We have carefully reviewed Oppong’s contention that the District Court clearly

erred in its drug calculation and find it to be without merit. The Court properly held that

Oppong is accountable for all quantities he was directly responsible for, as well as

foreseeable quantities that were within the scope of the criminal activity that he jointly

undertook.

       E.     Perjury Enhancement

       At Oppong’s resentencing hearing, the District Court adopted her ruling from the

original sentencing hearing with respect to the two-point enhancement for obstruction of

justice pursuant to U.S.S.G. § 3C1.1.

       The District Court found that Oppong gave false testimony under oath concerning

a material matter with the willful intent to provide false testimony. The Court cited to

United States v. Boggi, 74 F.3d 470 (3d Cir. 1996), for the proposition that flat denials

concerning an issue that was the central focus of the trial assures the court that the

defendant provided false testimony. Among other statements, Oppong denied ever taking

a drug courier trip and denied recruiting Odoi. The District Court found Oppong’s

                                              5
testimony to “be an insult to the Court, both at the suppression hearing and during the

trial.” (App. 4858.) She found that the testimony was “a construct intentionally devised

to attempt to fit a theory of innocence around incontrovertible documentary records.”

(Id.) Accordingly, she imposed the two-point adjustment based on obstruction of justice.

       Oppong argues that the District Court clearly erred by finding that he committed

perjury during his testimony because the jury could have believed that he withdrew from

the conspiracy, but was wrong about the date. Oppong also argues that the District Court

clearly erred by examining his testimony at the suppression hearing since Oppong was

only testifying as to whether he had made the statements previously, not whether they

were true.

       The District Court did not clearly err by applying a two-point enhancement for

obstruction of justice pursuant to U.S.S.G. § 3C1.1. The District Court properly found his

testimony to be perjury, worthy of a two-point upward adjustment. The District Court did

not simply rely on the jury verdict but carefully considered Oppong’s testimony at the

suppression hearing and at trial to conclude that it was false.

       F.     Post-Offense Rehabilitation Efforts

       Lastly, Oppong argues that the District Court clearly erred by rejecting his motion

for a downward departure based on his post-offense rehabilitation efforts. During

resentencing, the District Court heard argument on the legal basis for Oppong’s request

for the downward departure. Oppong’s counsel noted that the sentencing guidelines had

been amended to prohibit the court from considering post-conviction rehabilitation after

                                              6
Oppong’s participation in the conspiracy. Oppong’s counsel, citing to ex post facto

concerns, asked the District Court to consider United States v. Sally, 116 F.3d 76 (3d Cir.

1997), in which the Third Circuit has previously recognized that a downward departure

for post-offense rehabilitation efforts was proper.

       Oppong’s counsel argued that from the time that the government’s evidence

showed he withdrew from the conspiracy, in 1999, and the time that he was arrested, in

2002, he “engaged in lawful, legitimate, and positive personal conduct relating to

education, employment, and family life.” (App. 4914.) Counsel also added that since his

incarceration, he has “maintained a very positive attitude, participated in various prison

programs. . . on the education and vocational side, as well as. . . trying to be a positive

role model.” (App. 4914.)

       The District Court found that the Sally case was applicable but denied Oppong

relief under Sally, because he did not qualify for basic acceptance of responsibility under

U.S.S.G. § 3E1.1. This court lacks jurisdiction to review this claim. The District Court

recognized that it had the ability to depart but declined to do so under the facts of the

case. Thus, “the District Court did precisely what we have encouraged district courts to

do, i.e. indicate an awareness of the ability to depart, and that, therefore, under our

well-established precedent, we lack jurisdiction to review the discretionary denial of the

departure.” United States v. Minutoli, 374 F.3d 236, 240 (3d Cir. 2004). Though

Minutoli was decided before Booker, Booker does not change the analysis. According to

United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006), “[p]re- Booker, we

                                               7
declined to review discretionary decisions to deny departure, unless for allegation of legal

error” and “Booker does not compel us to reverse this precedent.”

III.   CONCLUSION

       In summary, all of Oppong’s sentencing claims lack merit. Accordingly, we will

affirm the sentence imposed by the District Court.




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