                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 10-3287
                                  ________________

                           UNITED STATES OF AMERICA

                                           v.

                                 LASSISSI AFOLABI,
                                a/k/a Bogard, a/k/a Fovi

                                   Lassissi Afolabi,
                                             Appellant
                                  ________________

                    On Appeal from the United States District Court
                             For the District of New Jersey
                            (Crim. No. 2:07-cr-00785-002)
                      District Judge: Honorable Jose L. Linares
                                  ________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  October 6, 2011

  BEFORE: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges

                          (Opinion Filed: December 16, 2011)
                                 ________________

                              OPINION OF THE COURT
                                 ________________
FUENTES, Circuit Judge.

      Lassissi Afolabi appeals from the criminal judgment entered by the United States

District Court for the District of New Jersey. He argues that the government breached its
plea agreement with him and that the District Court improperly calculated his advisory

Sentencing Guidelines offense level. For the reasons set forth below, we affirm.1

                                              I.

       Because we write for the parties, we discuss the facts only to the extent necessary

for the resolution of the issues raised on appeal. From October 2002 through September

2007, Afolabi conspired with his wife, Akouavi Afolabi, and others to commit forced

labor of more than 20 girls, aged 10 to 19. They recruited the girls from impoverished

villages in Togo and Ghana and brought them to the United States with fraudulently

obtained visas. The girls were required to work in hair-braiding salons for up to 14 hours

per day, six or seven days a week, and to relinquish all of their earnings. They were

beaten and psychologically and sexually abused.

       Pursuant to a plea agreement, Afolabi pled guilty to one count of Conspiracy to

Commit Forced Labor, Conspiracy to Commit Trafficking with Respect to Forced Labor,

and Conspiracy to Commit Document Servitude, in violation of 18 U.S.C. § 371; one

count of aggravated sexual abuse, in violation of 18 U.S.C. § 1589; and one count of

Transportation of a Minor with Intent to Engage in Criminal Sexual Activity, in violation

of 18 U.S.C. § 2423(b). The parties agreed that Afolabi’s total Sentencing Guidelines

offense level was 32, after including a “downward adjustment of 2 levels for acceptance

of responsibility . . . if Lassissi Afolabi’s acceptance of responsibility continues through

the date of sentencing.” (SA22). The plea agreement further recognized that Afolabi’s

1
 We have jurisdiction over Afolabi’s timely appeal pursuant to 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291. The District Court had subject matter jurisdiction pursuant to 18
U.S.C. § 3231.
                                              2
sentence was within the sole discretion of the District Judge and that the government was

not bound by any stipulation to which it received credible contrary evidence prior to

sentencing.

       After signing the plea agreement and admitting to his culpable conduct, Afolabi

testified as a defense witness at the trial of his wife and co-defendant, Akouavi Afolabi.

On direct examination, Afolabi contradicted certain admissions in his plea colloquy,

denying that his victims were forced to work or to turn over their tips. Although Afolabi

recanted these statements on cross examination, the government took the position that

Afolabi’s testimony demonstrated that his acceptance of responsibility had not continued

through his sentencing date.

       At a sentencing hearing on July 12, 2010, the District Court noted that the parties’

stipulated calculation of Afolabi’s Guidelines offense level “differ[ed] severely” from the

probation department’s calculations in its presentence report, which had arrived at a total

offense level of 46. (A32). The Court therefore asked each party to speak on the matter.

The government supported the plea agreement’s calculation with the exception of its

downward adjustment for Afolabi’s acceptance of responsibility. Afolabi agreed with the

government except to the extent that the government had argued that he should no longer

receive the benefit of his acceptance of responsibility. Ultimately, however, the Court

concluded the parties’ calculation was “flawed.” (A48). By the Court’s calculation—

which continued to give Afolabi the benefit of his acceptance of responsibility—

Afolabi’s total offense level was 40. At a second hearing on July 22, 2010, the Court

revised its calculation to 38 “in an exercise of caution” and in light of both parties’

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arguments that a 2-level increase, applicable where a sexual abuse victim was in the

“custody, care, or supervisory control of the defendant,” U.S.S.G. § 2A3.1(b)(3), should

not apply unless the victim were a minor. (A23). Afolabi was sentenced within this

Guidelines range to 292 months’ imprisonment.

                                              II.

       On appeal, Afolabi argues that the government breached its plea agreement with

him by “rais[ing] issue with the [C]ourt about the calculation of the appropriate base level

in the first of the sentencing hearings.” (Appellant’s Br. at 2). Because Afolabi did not

raise this objection before the District Court, our review is for plain error. See Puckett v.

United States, 129 S. Ct. 1423, 1429 (2009), abrogating United States v. Rivera, 357 F.3d

290, 293-94 (3d Cir. 2004). Under plain error review, a defendant may prevail only if

(1) there was an error that was (2) clear and (3) affected his substantial rights. Id. If

these three requirements are met, the Court of Appeals has discretion to remedy the error

if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Id. (internal quotations and alterations omitted).

       Upon review of the transcript, we conclude that there was no plain error. At the

first sentencing hearing, the government argued that the Guidelines calculation stipulated

in the plea agreement was accurate with the exception of the downward adjustment for

acceptance of responsibility. The government was entitled to contest this adjustment

because of Afolabi’s trial testimony and the terms of the plea agreement. In any event,

the government’s position was not adopted by the District Court. Although the

government also conceded, in response to the Court’s questioning, that alternative

                                               4
calculations were also supportable under the Guidelines, the government maintained that

the parties’ calculations in the plea agreement were most appropriate. After the

government spoke, defense counsel represented that that “the defendant agrees with the

[g]overnment’s calculation. . . . The only thing that we disagree on is whether or not there

was obstruction or acceptance . . . .” (A45).

                                             III.

       Afolabi also argues that the District Court made a procedural error in calculating

his advisory Guidelines offense level. We review the District Court’s calculation of the

Guidelines range for abuse of discretion. United States v. Fumo, --- F.3d ----, 2011 WL

3672774, at *16 (3d Cir. Aug. 23, 2011), as amended (Sept. 15, 2011) (citing United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)). “For example, an abuse of

discretion has occurred if a district court based its decision on a clearly erroneous factual

conclusion or an erroneous legal conclusion.” Id. (quoting Tomko, 562 F.3d at 567-68).

       At the July 22, 2010 hearing, the Court explained how it had reached an offense

level of 38. The Court applied U.S.S.G. § 2H4.1, which carries a base offense level of

22, to the group of Afolabi’s forced labor and sexual abuse convictions. Under

§ 2H4.1(b)(4), which deals with situations where there was another felony committed

during the commission or in connection with the forced labor, the Court compared the

calculation for forced labor with the calculation for criminal sexual abuse. The Court

determined that Afolabi’s base level for sexual abuse was 30 pursuant U.S.S.G. § 2A3.1.

To this base, the Court added 4 levels because the conduct involved forced rape, arriving

at an offense level of 34. See U.S.S.G. § 2A3.1(b)(1). Therefore, the Court added

                                                5
2 levels to arrive at an offense level of 36 for the group under § 2H4.1(b)(4)(B). The

Court next added two 2-level enhancements because of the large number of vulnerable

victims involved, arriving at a total offense level of 40. U.S.S.G. § 3A1.1(b)(1)-(2).

Considering the grouping of the counts and the much lower Guidelines level applicable to

Afolabi’s conviction for Transportation of a Minor with Intent to Engage in Criminal

Sexual Activity, the Court did not include a multiple-count adjustment. Finally, the

Court gave Afolabi a 2-level decrease for acceptance of responsibility, over the

government’s objection, arriving at a final calculation of 38.

         Afolabi’s argument that the District Court applied the wrong Guidelines section is

belied by the record. Afolabi confuses the District Court’s calculations under

§ 2H4.1(b)(4)(B), related to his sexual abuse of the girls he had forced to work, with a

calculation of his Guidelines offense level for conviction for Transportation of a Minor

with Intent to Engage in Criminal Sexual Activity. Therefore, Afolabi fails to identify

any procedural error in the District Court’s calculation of his advisory Guidelines offense

range.

                                                  IV.

         For the foregoing reasons, we affirm Afolabi’s sentence.




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