United States v. Ashokeji

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10229
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AKINPELU ASHOKEJI, also known as James A. Jimoh,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CR-214-2-A
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Akinpelu Ashokeji, also known as James A. Jimoh, appeals his
sentence after pleading guilty to two counts of mail fraud and
illegal reentry after deportation. Ashokeji argues that the
district court erred in not granting a downward departure under
the provision contained in U.S.S.G. § 2L1.2, comment. (n.5), and
that his counsel was ineffective for failing to seek a downward
departure. He contends that his prior convictions consisted of
one felony offense and two misdemeanors, and that his felony
conviction was not a crime of violence or a firearm offense.

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No. 00-10229
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Section 2L1.2, comment. (n.5) applies to a person “convicted
of only one felony offense.” Ashokeji, as he admitted in his
factual resume and as documented in the PSR, was previously
convicted of two felony offenses: Fraud and Related Activity in
Connection with Access Devices, in violation of 18 U.S.C.
§ 1029(a)(2), and Conspiracy to Commit Bank Fraud, in violation
of 18 U.S.C. § 371. Both of these crimes are classified as
felonies under federal law. 18 U.S.C. § 3559(a). Substantive
and conspiracy convictions are separate and distinct offenses.
United States v. Brown, 7 F.3d 1155, 1162 (5th Cir. 1993). The
fact that both convictions may have arisen out of the same
conduct does not mean they are to be considered as a single
felony offense for purposes of the application of § 2L1.2,
comment. (n.5). Having been previously convicted of two felony
offenses as defined in § 2L1.2, comment. (n.1), Ashokeji was
ineligible for the downward departure described in § 2L1.2,
comment. (n.5).
Ashokeji argues that the district court erred by misapplying
the sentencing guidelines in its calculation of the intended
loss. He contends that the PSR failed to justify the basis of
its determination of the loss. He argues that because the
intended loss cannot be determined, the district court should
have applied an actual loss standard.
The PSR determined the intended loss to be $392,700.96.
Ashokeji lodged written objections to this determination of the
intended loss, making the same arguments he makes now on appeal.
At the sentencing hearing, Ashokeji’s counsel stated that

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No. 00-10229
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Ashokeji would “waive his objections to the presentence report.”
Generally, plain error applies to arguments made for the
first time on appeal, absent waiver. United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). In Calverley, we
distinguished between waiver and forfeiture. Waiver, the
intentional relinquishment or abandonment of a known right,
results in no error. Forfeiture, the failure to make the timely
assertion of a right, does not extinguish the error. 37 F.3d at
162. Ashokeji knowingly and intentionally passed up the
opportunity to argue his objections to the PSR to the district
court. He specifically represented to the district court that he
was “waiving” his objections. Ashokeji waived this issue. Once
a right is waived at trial, it may not be resurrected on appeal.
United States v. Chavez-Valencia, 116 F.3d 127, 129 (5th Cir.
1997).
AFFIRMED.

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