     Case: 09-20383     Document: 00511136928          Page: 1    Date Filed: 06/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 9, 2010

                                       No. 09-20383                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,
v.

RASHEED BABTUNDE KAYODE, also known as Babatunde Rasheed
Kayode, also known as Rasheed Babatunde Kayode, Fugitive,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-387-1


Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Rasheed Babatunde Kayode appeals his guilty-plea conviction for
aggravated identity theft and the corresponding 24-month sentence. Following
the entry of Kayode’s guilty plea in the district court, the Supreme Court issued
its decision in Flores-Figueroa v. United States, — U.S. —, 129 S.Ct. 1886 (2009).
Now, for the first time on appeal, Kayode argues that as a result of the Supreme
Court’s superseding decision in Flores-Figueroa, the district court erred when it


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                         No. 09-20383

failed to admonish him on an essential element of the offense: specifically, that
the Government was required to prove he knew the means of identification used
or possessed belonged to an actual individual.1 Kayode also contends that the
district court erred by failing to ensure that the factual basis was sufficient to
support his guilty plea because there was no evidence that he knew the means
of identification used or possessed belonged to an actual person.                          The
Government concedes error and asks this Court to reverse Kayode’s conviction
and vacate his corresponding 24-month sentence. For the reasons set forth
below, we find plain error.           Accordingly, we vacate Kayode’s conviction of
aggravated identify theft and remand for further proceedings consistent with
this opinion.2
       Although we are not bound by this Court’s decision in United States v.
Ogbemudia, 2010 WL 444404 (5th Cir. Feb. 2, 2010) (unpublished), we find
ourselves persuaded by its comprehensive reasoning. Ogbemudia presents a
case procedurally identical to the instant appeal—that is, in Ogbemudia, the
Government conceded that the record did not establish that the defendant knew
that the identity documents belonged to actual, real people. The Ogbemudia
Court conducted a plain error review and found that the district court’s failure
to ensure the proper factual basis for the defendant’s guilty plea constituted
“clear or obvious” error. Id.3 The Ogbemudia Court based its finding of error on


       1
           See 18 U.S.C. § 1028A(a) (setting out elements of aggravated identity theft).
       2
        Accordingly, we also vacate his 24-month sentence. Kayode does not challenge his
other convictions for mail fraud or unlawful procurement of naturalization. This appeal,
therefore, only concerns his conviction for aggravated identity theft.
       3
         The Ogbemuedia Court noted that “[a]lthough the district court did not have the
benefit of Flores-Figueroa when [the defendant] pleaded guilty, it is sufficient that the error

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                                     No. 09-20383

the Supreme Court’s decision in Flores-Figueroa, where the Supreme Court “held
the Government must prove the defendant knew that the stolen identification
belonged to another person.” Id. at *1 (citing Flores-Figueroa, 129 S.Ct. at 1889).
The Ogbemudia Court found that clear “error existed because there was an
insufficient factual basis to support [the defendant’s] conviction.” Id. (citing F ED.
R. C RIM. P. 11(b)(3); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992)
(“The factual basis cannot be implied from the fact that the defendant entered
a plea, but must appear on the face of the record and ‘must be precise enough
and sufficiently specific’ to demonstrate that the accused committed the charged
criminal offense.” (quoting United States v. Johnson, 546 F.2d 1225, 1226 (5th
Cir. 1977)))).
       The Ogbemudia Court continued, finding that “this error affected [the
defendant’s] substantial rights. . . . [a]nd, in the light of the Government’s
request for a remand, it is appropriate to exercise our discretion to correct this
error.” Id. (internal citations omitted). Consequently, the Court vacated the
defendant’s conviction for aggravated identity theft and remanded for further
proceedings. See id.
       In the present case, the facts and the applicable law do not differ. Kayode
contends that nothing in the record establishes that he knew the identity
documents belonged to a real, actual person. Furthermore, the Government
concedes that the district court erred in failing to ensure the factual basis was
sufficient pursuant to F ED. R. C RIM. P. 11(b)(3), and as a result, the Government
seeks remand of the case.



be clear at the time of appeal.” Ogbemuedia, 2010 WL 444404, at *1 (citing United States v.
Avants, 278 F.3d 510, 521 (5th Cir. 2002)).

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                                 No. 09-20383

      Given this Court’s reasoning in Ogbemudia, we find that the district
court’s error “was clear or obvious,” and accordingly, we vacate the defendant’s
conviction of aggravated identify theft. Kayode’s 24-month sentence is therefore
vacated, and this case is remanded for further proceedings consistent with this
opinion.




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