10-0565-cr
USA v. Olaiya


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must 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, at 500 Pearl Street, in the City of New York,
on the 20th day of December, two thousand eleven.

Present: ROBERT D. SACK,
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
                           Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                           No. 10-0565-cr

BOLAJI OLAIYA,

                     Defendant-Appellant.
____________________________________________________________

For Defendant-Appellant:                 ARZA FELDMAN, Feldman and Feldman, Uniondale,
                                         N.Y.

For Appellee:                            CHI T. STEVE KWOK, Assistant United States Attorney
                                         (Katherine Polk Failla, Assistant United States
                                         Attorney, on the brief), for Preet Bharara, United States
                                         Attorney for the Southerrn District of New York

      Appeal from the United States District Court for the Southern District of New York
(Pauley, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Bolaji Olaiya (“Olaiya”) appeals from a February 17, 2010

judgment of the United States District Court for the Southern District of New York (Pauley, J.),

following a guilty plea, convicting him of conspiring with others to distribute and possess with

the intent to distribute more than one kilogram of mixtures and substances containing a

detectable amount of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846,

and sentencing him principally to 87 months’ imprisonment. We assume the parties’ familiarity

with the underlying facts and procedural history of this case.

       First, Olaiya contends that his sentence was procedurally unreasonable because the

district court mistakenly believed that the defendant’s prior untruthfulness precluded it from

granting him a downward departure for his attempted cooperation. A district court’s sentence is

reviewable for “reasonableness” under a “deferential abuse-of-discretion standard.” United

States v. Cavera, 550 F.3d 180, 187, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States,

552 U.S. 38, 41 (2007)). A district court commits “procedural error” where it “treats the

Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a

clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” Cavera,

550 F.3d at 190. Review of a district court’s refusal to depart downwardly is available only

where a sentencing court misapprehended the scope of its authority to depart or the sentence was

otherwise illegal. United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (per curiam).

Under section 3553(a)(1), district courts should consider “the contention that a defendant made

efforts to cooperate, even if those efforts did not yield a Government motion for a downward

departure pursuant to U.S.S.G. § 5K1.1.” United States v. Fernandez, 443 F.3d 19, 33 (2006).


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       The record clearly indicates that the district court fully appreciated its authority to depart

from the Guidelines and that it considered Olaiya’s cooperation but declined to grant a departure

due to his history of dishonesty and lack of respect for the rule of law. At no point did the

district court suggest that it was constrained to impose a Guidelines sentence. Instead, the court

specifically found that a Guidelines sentence was “appropriate, reasonable and just” and that the

defendant was “certainly not worthy of any downward departure.” Supplemental App. 69, 70.

Additionally, the court directly addressed Olaiya’s contention that he had attempted to, but been

unable to cooperate with the government, explaining that Olaiya’s “misrepresent[ations]” could

not be excused since “[h]e knew that he had an obligation to be honest with the government and

he was not.” Id. at 68. Finally, the Court found that Olaiya’s continued contacts with one of his

co-conspirators after his arrest further demonstrated a lack of “respect for the rule of law” that,

considering the § 3553(a) factors, rendered him “not worthy of any downward departure. Id. at

69.

       We turn next to Olaiya’s assertion that, in light of his efforts to cooperate with the

government and his lack of a criminal record, his sentence was substantively unreasonable. An

appellate court may set aside a district court’s substantive determination only in exceptional

cases where the trial court’s decision “cannot be located within the range of permissible

decisions.” Cavera, 550 F.3d at 189 (quotation marks omitted). “Generally, ‘[i]f the ultimate

sentence is reasonable and the sentencing judge did not commit procedural error in imposing that

sentence, we will not second guess the weight (or lack thereof) that the judge accorded to a given

factor or to a specific argument made pursuant to that factor.’” United States v. Pope, 554 F.3d

240, 246-47 (2d Cir. 2009) (alteration in original) (quoting Fernandez, 443 F.3d at 34).


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       The district court’s sentence is not substantively unreasonable. At sentencing, the district

court referenced the “serious” nature of Olaiya’s crime given the large amount of heroin

involved and found that “a sentence within the guideline range . . . will fulfill the purposes of

specific . . . and general deterrence.” Supplemental App. 67, 70. Furthermore, the record

indicates that the district court considered both Olaiya’s lack of a criminal record and his

attempts to cooperate with the government. Accordingly, we conclude that the district court’s

sentence can “be located within the range of permissible decisions.” Cavera, 550 F.3d at 189

(quotation marks omitted).

       We have considered Olaiya’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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