UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5131
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GODWIN ASIFO,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00032-CMH-1)
Submitted: August 31, 2011 Decided: September 6, 2011
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Flax, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Jack Hanly, Marla Tusk,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Godwin Asifo was convicted of
two counts of mail fraud and one count of wire fraud. The
Government moved to dismiss two additional counts of mail fraud
before the jury resolved them. The district court sentenced
Asifo to fifty-seven months’ imprisonment, the bottom of the
Guidelines range. Asifo appeals his sentence. Finding no
error, we affirm.
This court reviews Asifo’s sentence for reasonableness
under a deferential abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 46 (2007). Our review requires a
consideration of both the procedural and substantive
reasonableness of a sentence. Id. We afford within-Guidelines
sentences a presumption of reasonableness. See United States v.
Mendoza-Mendoza, 597 F.3d 212, 216-17 (4th Cir. 2010).
First, Asifo argues that he was impermissibly held
accountable for a loss amount that was not submitted to the jury
and included acquitted conduct. He relies on United States v.
O’Brien, 130 S. Ct. 2169, 2174-75 (2010), and Apprendi v. New
Jersey, 530 U.S. 466, 499 (2000). This argument is without
merit. “Sentencing judges may find facts relevant to
determining a Guidelines range by a preponderance of the
evidence, so long as that Guidelines sentence is treated as
advisory and falls within the statutory maximum authorized by
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the jury’s verdict.” United States v. Benkahla, 530 F.3d 300,
312 (4th Cir. 2008). Here, the jury verdict authorized a
sentence up to twenty years’ imprisonment. See 18 U.S.C.
§§ 1341, 1343 (West Supp. 2011). Asifo’s fifty-seven-month
sentence was well within the authorized range.
Next, Asifo asserts that the district court erred when
it considered the conduct charged in the dismissed counts in
determining the loss amount and in applying a role in the
offense enhancement. However, the evidence was relevant
conduct, and the district court was permitted to consider it.
See United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).
Accordingly, the district court did not clearly err in
calculating Asifo’s total offense level. See United States v.
Mehta, 594 F.3d 277, 281 (4th Cir.) (stating standard of
review), cert. denied, 121 S. Ct. 279 (2010).
Asifo also contends that the district court
“unreasonably denied a downward deviation.” He argues that the
district court should have granted a downward departure: (1)
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 5K2.20
(2008), because his offense was aberrant behavior; (2) pursuant
to USSG § 5H1.4 because of his poor health; and (3) because he
has exhibited post-conviction rehabilitation. This court lacks
authority to review a sentencing court’s decision not to depart
downward “unless the court failed to understand its authority to
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do so.” United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008). Asifo has not alleged the district court
failed to understand its authority, and nothing in the record
would support such a conclusion. Consequently, Asifo’s
contention that the district court should have departed pursuant
to USSG §§ 5H1.4 and 5K2.20 may not be considered on appeal.
Finally, Asifo asserts that this case should be
remanded for resentencing in light of Pepper v. United States,
131 S. Ct. 1229 (2011), for the district court to consider his
post-conviction rehabilitation. However, Asifo’s reliance
Pepper is misplaced. In any event, the district court
considered Asifo’s declarations of remorse, and we conclude that
they are insufficient to render his sentence substantively
unreasonable.
Based on the foregoing, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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