     Case: 08-20416     Document: 00511018744          Page: 1    Date Filed: 02/02/2010




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

                                                  FILED
                                                                          February 2, 2010
                                     No. 08-20416
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SOLOMON OGBEMUDIA, also known as Kamasu Patterson, also known as
Larry Doogwama,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-145-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Solomon Ogbemudia, a citizen of Nigeria, pleaded guilty to mail fraud
affecting a financial institution and aggravated identity theft; he was sentenced
to a combined 144 months’ imprisonment (120 months for mail fraud and a
mandatory consecutive 24 months for identity theft). He contends: a Supreme
Court decision handed down after entry of his identity-theft guilty plea shows
the plea was not supported by a factual basis, see Flores-Figueroa v. United


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20416

States, 129 S. Ct. 1886 (2009); and, his 120-month non-guidelines sentence for
mail fraud was unreasonable.
      Flores-Figueroa held the Government must prove the defendant knew that
the stolen identification belonged to another person. 129 S. Ct. at 1889, 1894;
see also 18 U.S.C. § 1028A(a) (setting out elements of aggravated identity theft).
The Government concedes the record does not establish Ogbemudia knew such
documents belonged to actual people.             Ogbemudia contends, and the
Government concedes, remand is appropriate because the record does not
contain a sufficient factual basis to establish this essential element. F ED . R.
C RIM. P. 11(b)(3) (requiring district court, before entering judgment on a guilty
plea, to determine it is supported by a factual basis).
      Because Ogbemudia did not raise this issue in district court, review is only
for plain error. E.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Reversible plain error exists where a clear or obvious error affects defendant’s
substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir.
2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett, 129 S. Ct. at 1429.
Even then, we retain discretion whether to correct such an error and, generally,
will do so only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Baker, 538 F.3d at 332.
      As noted, error existed because there was an insufficient factual basis to
support Ogbemudia’s conviction. See 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 error was clear or obvious. Although the district court did not have
the benefit of Flores-Figueroa when Ogbemudia pleaded guilty, it is sufficient
that the error be clear at the time of appeal. See United States v. Avants, 278

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F.3d 510, 521 (5th Cir. 2002).       Further, this error affected Ogbemudia’s
substantial rights. See United States v. Dominguez Benitez, 542 U.S. 74, 80–83
(2004).   And, in the light of the Government’s request for a remand, it is
appropriate to exercise our discretion to correct this error. See Puckett, 129 S.
Ct. at 1429. Accordingly, Ogbemudia’s conviction for aggravated identity theft
is vacated, and this matter is remanded for entry of a new plea for his identity-
theft conviction. See United States v. Hall, 110 F.3d 1155, 1162 (5th Cir. 1997).
      For Ogbemudia’s mail-fraud sentence, the district court: concluded that
the advisory guideline range of 33 to 41 months was not sufficient to achieve the
sentencing objectives of 18 U.S.C. § 3553(a); and imposed a non-guidelines
sentence of 120 months.      Ogbemudia challenges the reasonableness of this
upward variance.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 50–51 (2007).
      As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. Id. at 752–53. If, as in this case,
there is no such error, we then review the substantive reasonableness of the
sentence imposed, as noted above, for an abuse of discretion. Id. at 751–53. “[A]
sentence within a properly calculated Guideline range is presumptively
reasonable”. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Contrary to Ogbemudia’s assertions, the district court weighed numerous
factors under § 3553(a) and provided detailed and substantial justification for
concluding that the range of 33 to 41 months was insufficient to satisfy those
objectives. See United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008)

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(affirming upward variance based on § 3553(a) factors); United States v.
Williams, 517 F.3d 801, 810–11 (5th Cir. 2008) (same). The court noted that
Ogbemudia’s offense constituted a wide-ranging scheme involving: the use of
counterfeit identifications and documents containing false information; the
rental of 20 postal boxes in 12 locations; and the establishment of more than 70
fraudulent accounts at 15 different financial institutions.
      The court also concluded that Ogbemudia’s criminal history category of VI
did not accurately reflect Ogbemudia’s actual history and characteristics, and
that a sentence within the advisory guidelines range was thus insufficient to
reflect his history and characteristics, promote respect for the law, afford
adequate deterrence, and protect the public from future crimes by Ogbemudia.
The record supports these findings: Ogbemudia has a 20-year history of crimes
involving fraud, some of which were not included in his criminal history score;
Ogbemudia had been deported three times, only to reenter the United States
illegally each time; the convictions included in the criminal history score earned
him 18 points, five more than needed for Category VI; despite repeated
convictions and incarceration, Ogbemudia continued to commit crimes, including
fraud-based offenses; and he has employed numerous aliases and false or
fraudulently   obtained    social   security   numbers.      These    were   proper
considerations that support the district court’s reasonable conclusion that
Ogbemudia’s criminal history score did not fully reflect his criminal activity. See
United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008) (noting that
“defendant’s criminal history is one of the factors that a court may consider in
imposing a non-Guidelines sentence”).
      In sum, the district court’s determination that a sentence substantially
above the guidelines range was needed to achieve the objectives of § 3553(a) did
not constitute an abuse of discretion. See Brantley, 573 F.3d at 350. Similarly,
there is no reason to disturb the district court’s conclusion regarding the extent
of the deviation, which was justified by the district court’s careful analysis of the

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§ 3553(a) factors. See id.; see also United States v. Jones, 444 F.3d 430, 441–42
(5th Cir. 2006) (affirming 120-month sentence where guidelines range was 46 to
57 months). Because there is no basis for reversal under the ordinary abuse-of-
discretion standard of review, we need not reach the Government’s contention
that Ogbemudia’s sentencing challenge should be reviewed only for plain error.
      Ogbemudia’s mail-fraud sentence is AFFIRMED; his aggravated-identity-
theft conviction is VACATED; and this matter is REMANDED for entry of a new
plea on the identity-theft count.




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