Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-19-2003
USA v. Sonowo
Precedential or Non-Precedential: Non-Precedential
Docket 02-2197
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"USA v. Sonowo" (2003). 2003 Decisions. Paper 734.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-2197
UNITED STATES OF AMERICA
v.
HENRY SONOWO
a/k/a SONOWO BABATUNDE HENRY
a/k/a KAREEM BELLO
Henry Sonowo,
Appellant
On Appeal from the United States District Court
for District of Delaware
(D.C. Crim. No. 00-cr-00067-1)
District Judge: Hon. Gregory M. Sleet
Submitted Under Third Circuit LAR 34.1(a)
March 13, 2003
Before: SLOVITER, NYGAARD, and ALARCÓN*, Circuit Judges
(Filed: March 18, 2003)
OPINION OF THE COURT
* Hon. Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
SLOVITER, Circuit Judge.
I.
Appellant Henry Sonowo comes before us with a laundry list of claims challenging
his conviction and sentence. Specifically, Sonowo argues that the District Court lacked
subject matter jurisdiction to adjudicate his case, the Government breached the plea
agreement, the District Court violated Sonowo’s due process rights when it rejected the
terms of the plea agreement, the District Court violated Federal Rule of Criminal
Procedure 32(c), and the District Court erred in enhancing and upwardly departing
Sonowo’s sentence.
Sonowo’s claims are without merit. Accordingly, we will not disturb his conviction
and sentence.
II.
Because we write solely for the parties, we need not set forth a detailed recitation of
the background for this appeal and will limit our discussion to resolution of the issues
presented.
Sonowo was one of several persons indicted for involvement in a fraudulent scheme,
known as the “black money” scheme. Sonowo and his cohorts tricked a number of persons
in the United States into sending them funds that were to be used to purchase a special
cleaning chemical that would be used to clean U.S. currency previously stamped with the
letters “CBN” (Central Bank of Nigeria) in black ink. In turn, the cleaned money allegedly
was to be used to set up churches.
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On April 13, 2001, Sonowo pled guilty to one count of conspiracy to commit wire
fraud in violation of 18 U.S.C. § 371. Sonowo elected to represent himself during the
sentencing hearing. The District Court, sua sponte, upwardly departed three levels,
determining that the sentencing enhancements pursuant to the United States Sentencing
Guidelines § 2F1.1 were appropriate because of the amount of loss, misrepresentation of
affiliation with a religious organization, and conduct outside the United States. Sonowo
was sentenced to sixty months imprisonment to be followed by three years supervised
release and ordered him to pay $355,000 in restitution and a $100 special assessment.
Sonowo timely appealed and is acting pro se on this appeal.
III.
In the first of his numerous claims, Sonowo challenges the District Court’s subject
matter jurisdiction by arguing that he was convicted of a different charge than that charged
in the indictment. Nothing in the record supports this argument. Thus we reject Sonowo’s
contention that the District Court lacked subject matter jurisdiction.
Sonowo next argues that the Government breached the plea agreement by
“advocating in favor of justification for other enhancements and upward departures” that
were not contained in the memorandum of the plea agreement. Appellant’s Br. at 12. In
relevant part, the plea agreement stated that aside from an enhancement pursuant to
U.S.S.G. § 2F1.1(b)(1)(2) for more than minimal planning, the Government would not seek
any other enhancements or departures from the Guidelines. The record shows that the
Government kept its promise. The Government wrote an objection letter after noting that
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the presentence report proposed two enhancements. When asked about enhancements
during the sentencing hearing, the Government stated: “[W]e’ve agreed that enhancement
does not apply.” Supp. App. at 147. Finally, when the District Court raised the issue of
enhancement sua sponte, the Government again filed a written opposition. Based on the
record before us, it is clear the Government did not breach the plea agreement.
In his third claim, Sonowo argues that the District Court violated his due process
rights when it rejected the terms of the plea agreement. The plea agreement states that the
Government would not seek additional enhancements or departures, and as noted above, the
Government adhered to that agreement. The plea agreement does not state that the court
would not apply enhancements or departures, nor could it bind the court. Even Sonowo
concedes that the court cautioned him that the terms of the plea agreement are mere
recommendations that the court may reject. Sonowo further invokes Federal Rule of
Criminal Procedure 11(e)(1)(C) to support his argument; however, that rule binds the court
to plea agreements only after the agreement “is accepted by the court.” Accordingly, we
reject Sonowo’s claim as we fail to see how the District Court had “accepted” the plea
agreement.
Sonowo next argues that the District Court failed to comply with Federal Rule of
Criminal Procedure 32(c) in making its factual findings. Specifically, Sonowo contends
that the District Court violated Rule 32(c) by overruling his objections to its adoption of
the Presentence Report (“PSR”) and by using an “incoherent factual basis that Sonowo
himself was not made aware of its specific facts or evidence for his colorable objections.”
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Appellant’s Br. at 19. It is clear from the record that the District Court provided Sonowo
with ample opportunity to object to the facts from the PSR and heard argument from both
parties when Sonowo objected. Furthermore, Sonowo was provided with copies of the law
enforcement reports that formed the basis of the PSR. As such, we reject Sonowo’s claims
that the District Court violated Federal Rule of Criminal Procedure 32(c) and that he was
not aware of the evidence supporting the PSR.
Sonowo’s final claims center around the sentencing enhancements and upward
departures made by the District Court. First, Sonowo argues that the District Court erred in
enhancing his sentence pursuant to U.S.S.G. § 2F1.1(b)(4)(A), which provides a two level
increase if the offense involved “a misrepresentation that the defendant was acting on
behalf of a charitable, educational, religious, or political organization, or a government
agency.” Sonowo contends that it was Hughes-Irabor, his co-conspirator, and not he, who
made misrepresentations. United States Sentencing Guideline §1B1.3(a)(1)(B) allows the
sentencing court to consider reasonably foreseeable acts of others in furtherance of a
jointly criminal activity. The District Court concluded that “given the close working
relationship the two shared, it should have been completely foreseeable to Sonowo that
Hughes-Irabor would use any means necessary to persuade potential victims, including
telling them that he represented a religious organization.” AA6 at 18. The District Court
did not err in so finding and enhancing Sonowo’s sentence accordingly.
Sonowo next argues that the District Court erred in enhancing his sentence pursuant
to U.S.S.G. § 2F1.1(b)(5), which provides for an enhancement where a “substantial part” of
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the offense was either committed outside of the United States or the offense involved
sophisticated means. Sonowo claims that the District Court had no evidence of overseas
involvement. Again, we reject Sonowo’s argument as there was ample evidence of activity
performed outside of the United States. Among other things, at least two of the victims
wired money overseas, Sonowo transferred funds to suspected co-conspirators in other
countries, and three of the victims were induced to travel abroad.
Sonowo also challenges the District Court’s decision to upwardly depart sua sponte
pursuant to U.S.S.G. §§ 2F1.1, app. n.11 and 5K2.0. Pursuant to these sections, if there are
factors that take the offense outside the “heartland,” the District Court may depart upward.
The District Court upwardly departed after noting the “unusual” degree of harm to the
victims, the “sheer number” of victims, the potential use of “mass-marketing” in soliciting
victims, and the duration and “extensive” planning and execution of the scheme. AA6 at 24-
27. Based on these factors and the evidence supporting them, we find that it was reasonable
for the District Court to upwardly depart.
Finally, where, as here, the District Court understood its authority to downwardly
depart but chose not to do so, we lack jurisdiction to review its decision. See United States
v. Denardi, 892 F.2d 269, 272 (3d Cir. 1990). Accordingly, we do not consider Sonowo’s
claim that the District Court erred in its decision not to depart downward.
IV.
For the foregoing reasons, we will affirm Sonowo's conviction and sentence.
______________________________
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge