United States of America v. Abiodun Idowu

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 13, 2008
Decided November 14, 2008
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐1428
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ABIODUN IDOWU,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 07 CR 142‐2
Rebecca R. Pallmeyer,
Judge.
O R D E R
Abiodun Idowu pleaded guilty to conspiring to import more than one kilogram of
heroin, 21 U.S.C. § 952(a) and 963, and was sentenced to 121 months’ imprisonment. Idowu
appeals, but his appointed counsel have moved to withdraw because they cannot identify
any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 744 (1967).
Idowu responded to their request to withdraw, see Cir. R. 51(b), and so we confine our
review to the issues outlined in their facially adequate brief and Idowu’s response. See
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
In his Anders submission, counsel inform us that Idowu does not wish to challenge
his guilty plea, but Idowu in his response argues that the colloquy was inadequate. He first
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1428 Page 2
asserts that the court neglected to inform him of either the right to subpoena witnesses to
appear at trial or the right to assistance of counsel on appeal. Idowu misstates the record,
however. The court informed him of his rights “to call witnesses of your own if the case
went to trial” and “to a lawyer representing you on appeal,” and Idowu acknowledged at
his change‐of‐plea hearing that he fully understood those rights. Change of Plea Tr. at 8, 11.
Idowu next asserts that the court failed to inform him that he was pleading guilty to a
charge with a statutory minimum sentence of ten years. But the court informed him that
“the minimum sentence that you are facing on these charges, the minimum would be ten
years,” and Idowu responded that he understood. Id. at 16. Idowu also seems to suggest
that the judge failed to inform him of the scope of appellate rights that he would waive by
pleading guilty. However, he does not specify which rights he refers to, and in any event
the plea agreement preserved his right to appeal the validity of the plea and the legality of
the sentence imposed. Plea Agreement at ¶ 20(b). To the extent that Idowu relinquished
the right to appeal from trial, the court explained during the colloquy that he was giving up
that right. Change of Plea Tr. at 11.
Counsel also question whether the district court should have sentenced Idowu below
the statutory mandatory minimum. (Idowu’s 121‐month sentence was just one month
above the minimum.) See 21 U.S.C. § 960(b)(1)(A). However, only a limited number of
circumstances allow for a departure below a statutory minimum, none of which apply here.
As counsel note, under 18 U.S.C. § 3553(a) and U.S.S.G. § 5K1.1, the government can move
for a lower sentence based on the “substantial assistance” of the defendant to the
investigation, but the government here filed no such motion. Counsel also discuss U.S.S.G.
§ 5C1.2 (the “safety valve”), which allows first‐time offenders to be sentenced below a
statutory minimum if they meet certain conditions, such as having a criminal history score
less than two and providing accurate information about the offense to the government.
Idowu, though, does not meet these conditions: the government noted at sentencing that
Idowu continually “refused to cooperate” with their investigation, and Idowu has three
criminal history points. Any potential argument for a sentence below the statutory
minimum would therefore be frivolous.
Counsel’s final inquiry is whether the court properly evaluated Idowu’s sentence
under the factors listed in 18 U.S.C. § 3553(a). However, Idowu’s sentence is within the
guideline range, and we therefore presume it to be reasonable. Rita v. United States, 127
S. Ct. 2456, 2462 (2007); United States v. Miranda, 505 F.3d 785, 791 (7th Cir. 2007). Further,
the district court sufficiently considered the § 3553 factors at sentencing. See Gall v. United
States, 128 S. Ct. 586, 596‐97 (2007); United States v. Tockes, 530 F.3d 628, 632 (7th Cir. 2008).
For example, the court specifically noted Idowu’s significant criminal history and previous
heroin conviction, Idowu’s age and characteristics, and the fact that as a permanent resident
Idowu will almost certainly be deported. See 18 U.S.C. § 3553(a)(1), (a)(2)(A‐C). After

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evaluating these factors, the court imposed a sentence at the very bottom of the guidelines
range and just one month above the statutory minimum. Any potential argument that the
court failed to meaningfully consider the factors set forth in § 3553(a) would be frivolous.
In his 51(b) response, Idowu asks whether the district court properly calculated his
sentence under the guidelines. Idowu complains that the criminal history category in his
plea agreement (Category II) differed from that recommended by the probation officer and
ultimately adopted by the court (Category III). However, the presentence investigation
report reflects the probation officer’s discovery of a drunk‐driving conviction in 2000 that
increased Idowu’s criminal history score, see U.S.S.G. § 4A1.1(c). Idowu makes no argument
why his conviction should not count under that provision, and the plea agreement confirms
Idowu’s acknowledgment that any predictions about the sentence he might receive were
preliminary and non‐binding. Any argument that the district court erred by relying on a
higher criminal history category would be frivolous.
Idowu next argues that the district court erred by giving him a two‐point reduction
for acceptance of responsibility instead of the three points he requested. See U.S.S.G.
§ 3E1.1. The court granted Idowu two points because he pleaded guilty. But for Idowu to
qualify for further reduction, the government had to file a motion acknowledging his
assistance to their investigation. See id., § 3E1.1(b); United States v. Baretz, 411 F.3d 867, 876
(7th Cir. 2005). However, the government made no such motion in this case, and therefore
any contention that Idowu was entitled to an extra point for accepting responsibility would
be frivolous.
Idowu also suggests that his sentence was improperly enhanced by a notice of prior
conviction that the government filed under 21 U.S.C. § 851. In fact, the court dismissed the
information (upon the government’s motion) after Idowu agreed to change his plea to
guilty. Change of Plea Tr. at 15; Sentencing Tr. at 32‐33. The information, then, played no
role in Idowu’s sentence. Therefore, the claim is baseless.
To the extent that Idowu’s response charges counsel with ineffective assistance, this
claim is better pursued in a collateral proceeding. See Massaro v. United States, 538 U.S. 500,
504‐05 (2003); United States v. Harris, 394 F.3d 543, 557‐58 (7th Cir. 2005). In a collateral
proceeding, Idowu could better develop the record to support such an argument.
We therefore GRANT the motion to withdraw and DISMISS Idowu’s appeal.

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