USA v. Rasheed Kayode

Filing 511136928

USA v. Rasheed Kayode

Doc. 511136928

Case: 09-20383

Document: 00511136928

Page: 1

Date Filed: 06/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 9, 2010 N o . 09-20383 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e , v. R A S H E E D BABTUNDE KAYODE, also known as Babatunde Rasheed K a y o d e , also known as Rasheed Babatunde Kayode, Fugitive, D e fe n d a n t-A p p e lla n t.

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CR-387-1

B e fo r e HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges. P E R CURIAM:* R a s h e e d Babatunde Kayode appeals his guilty-plea conviction for a g g ra v a te d identity theft and the corresponding 24-month sentence. Following t h e entry of Kayode's guilty plea in the district court, the Supreme Court issued it s decision in Flores-Figueroa v. United States, -- U.S. --, 129 S.Ct. 1886 (2009). N o w , for the first time on appeal, Kayode argues that as a result of the Supreme C o u r t 's superseding decision in Flores-Figueroa, the district court erred when it

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

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Date Filed: 06/09/2010

No. 09-20383 fa ile d to admonish him on an essential element of the offense: specifically, that t h e Government was required to prove he knew the means of identification used o r possessed belonged to an actual individual.1 Kayode also contends that the d is t r ic t court erred by failing to ensure that the factual basis was sufficient to s u p p o r t his guilty plea because there was no evidence that he knew the means o f identification used or possessed belonged to an actual person. The

G o v e r n m e n t concedes error and asks this Court to reverse Kayode's conviction a n d vacate his corresponding 24-month sentence. For the reasons set forth b e lo w , we find plain error. Accordingly, we vacate Kayode's conviction of

a g g r a v a t e d identify theft and remand for further proceedings consistent with t h is opinion.2 A l t h o u g h we are not bound by this Court's decision in United States v. O g b em u d ia , 2010 WL 444404 (5th Cir. Feb. 2, 2010) (unpublished), we find o u r s e lv e s persuaded by its comprehensive reasoning. Ogbemudia presents a c a s e procedurally identical to the instant appeal--that is, in Ogbemudia, the G o v e r n m e n t conceded that the record did not establish that the defendant knew t h a t the identity documents belonged to actual, real people. The Ogbemudia C o u r t conducted a plain error review and found that the district court's failure t o ensure the proper factual basis for the defendant's guilty plea constituted "c le a r or obvious" error. Id.3 The Ogbemudia Court based its finding of error on

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See 18 U.S.C. § 1028A(a) (setting out elements of aggravated identity theft).

Accordingly, we also vacate his 24-month sentence. Kayode does not challenge his other convictions for mail fraud or unlawful procurement of naturalization. This appeal, therefore, only concerns his conviction for aggravated identity theft. The Ogbemuedia Court noted that "[a]lthough the district court did not have the benefit of Flores-Figueroa when [the defendant] pleaded guilty, it is sufficient that the error
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No. 09-20383 th e Supreme Court's decision in Flores-Figueroa, where the Supreme Court "held t h e Government must prove the defendant knew that the stolen identification b e l o n g e d to another person." Id. at *1 (citing Flores-Figueroa, 129 S.Ct. at 1889). T h e Ogbemudia Court found that clear "error existed because there was an in s u f fic ie n t factual basis to support [the defendant's] conviction." Id. (citing FED. R . CRIM. P. 11(b)(3); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (" T h e factual basis cannot be implied from the fact that the defendant entered a plea, but must appear on the face of the record and `must be precise enough a n d sufficiently specific' to demonstrate that the accused committed the charged c r im in a l offense." (quoting United States v. Johnson, 546 F.2d 1225, 1226 (5th C ir . 1977)))). The Ogbemudia Court continued, finding that "this error affected [the d e fen d a n t 's] substantial rights. . . . [a]nd, in the light of the Government's r e q u e s t for a remand, it is appropriate to exercise our discretion to correct this e r r o r ." Id. (internal citations omitted). Consequently, the Court vacated the d e f e n d a n t 's conviction for aggravated identity theft and remanded for further p r o c e e d in g s . See id. In the present case, the facts and the applicable law do not differ. Kayode c o n t e n d s that nothing in the record establishes that he knew the identity d o c u m e n ts belonged to a real, actual person. Furthermore, the Government c o n c e d e s that the district court erred in failing to ensure the factual basis was s u f fic ie n t pursuant to FED. R. CRIM. P. 11(b)(3), and as a result, the Government s e e k s remand of the case.

be clear at the time of appeal." Ogbemuedia, 2010 WL 444404, at *1 (citing United States v. Avants, 278 F.3d 510, 521 (5th Cir. 2002)).

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No. 09-20383 G iv e n this Court's reasoning in Ogbemudia, we find that the district c o u r t 's error "was clear or obvious," and accordingly, we vacate the defendant's c o n v i ct io n of aggravated identify theft. Kayode's 24-month sentence is therefore v a c a te d , and this case is remanded for further proceedings consistent with this o p in io n .

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