USA v. Bright Ugiagbe

Filing 511140510

Case: 09-40776

Document: 00511140510

Page: 1

Date Filed: 06/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40776 S u m m a r y Calendar June 14, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. B R I G H T UGIAGBE, 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. 5:09-CR-507-1

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* B r ig h t Ugiagbe appeals from his conviction for being illegally present in t h e United States after having been deported. He contends that he was

im p r o p e r ly convicted under 8 U.S.C. § 1326(b)(2) instead of § 1326(b)(1) because h is 1995 Florida conviction for aggravated battery was not an "aggravated fe lo n y " under 8 U.S.C. § 1101(a)(43)(F). Ugiagbe argues that the error affected h is sentence because it raised the statutory maximum from ten to twenty years,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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w h ic h may have influenced the district court's decision to sentence him to fortyo n e months. S in c e Ugiagbe did not raise this argument in the district court, our review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 3 6 0 )6 1 (5th Cir. 2009). To show plain error, Ugiagbe must show a forfeited e r r o r that is clear or obvious and that affects his substantial rights. Puckett v. U n ite d States, 129 S. Ct. 1423, 1429 (2009). Ugiagbe's 1995 Florida conviction was not an aggravated felony under § 1101(a)(43)(F) because it carried no sentence of imprisonment. See

M o n d r a g o n -S a n tia g o , 564 F.3d at 368)69; see also Singh v. U.S. Att'y Gen., 561 F .3 d 1275, 1280 (11th Cir. 2009) (holding that aggravated felony did not exist u n t il alien's sentence to community control was revoked and term of im p r is o n m e n t imposed). Thus, it was error to convict and sentence Ugiagbe u n d e r § 1326(b)(2). However, the record does not indicate that the district c o u r t's error affected Ugiagbe's substantial rights. Whether the Florida

c o n v ic t io n was a felony or an aggravated felony did not affect the Guideline r a n g e , and the district court, after an extensive discussion with Ugiagbe at the s e n te n c in g hearing, sentenced him to the lowest within-range sentence. There is no indication in the record that the statutory maximum played any role in the d is t r ic t court's decision. Therefore, Ugiagbe has failed to demonstrate reversible p la in error. See Mondragon-Santiago, 564 F.3d at 369. We do, however, reform t h e judgment of the district court to indicate that Ugiagbe was sentenced under § 1326(b)(1) instead of § 1326(b)(2). See id. E v e n though Ugiagbe's sentence is at the bottom of the correctly calculated s e n te n c in g range, he contends that the sentence is substantively unreasonable. He contends that the district court failed to give sufficient effect to his duress a r g u m e n t by conflating duress as a defense to the commission of an offense and d u r e s s as a mitigating factor at sentencing. He asserts that even incomplete or im p e r f e c t duress may serve as a basis for a downward departure pursuant to 2

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U .S .S .G . § 5K2.12.

According to Ugiagbe, his sentence was substantively

u n r e a s o n a b le because the district court failed to give mitigating effect to his e x p e r ie n c e s in Nigeria. U n d e r the now-discretionary guidelines scheme, the sentencing court has a duty to consider the factors of 18 U.S.C. § 3553(a) and to correctly determine t h e applicable guidelines range. United States v. Mares, 402 F.3d 511, 520 (5th C ir . 2005). Following Gall v. United States, 552 U.S. 38, 49)50 (2007), we must d e t e r m in e whether the sentence imposed is procedurally sound, including w h e t h e r the calculation of the advisory guidelines range is correct, and whether t h e sentence imposed is substantively reasonable. d is c r e t io n . Gall, 552 U.S. at 51. U g ia g b e concedes that the Guideline range was properly calculated and t h a t he was sentenced within the range. "[A] sentence within a properly United States v. Review is for abuse of

c a lc u la t e d Guideline range is presumptively reasonable."

A lo n z o , 435 F.3d 551, 554 (5th Cir. 2006). This court "will give great deference t o that sentence" and "will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines." Mares, 402 F.3d 519)20. T h e district court did not minimize Ugiagbe's argument for a departure or v a r ia n c e based on events in Nigeria, nor did it conflate duress as a defense and d u r e s s as a sentencing factor. The district court simply did not believe that U g ia g b e could escape Nigeria only by fleeing to the United States, from whence h e already had been deported, or that the only way he could reach Canada was b y traversing the United States. Indeed, Ugiagbe flew from Nigeria to Brazil, t h e n entered the United States from Mexico, having to cross through several c o u n t r ie s along the way. His testimony that he could get to Spain only on a w o o d e n boat due to his inability to obtain a Spanish visa also strains credulity. The district court considered Ugiagbe's reasons for a lower sentence and e x p la in e d why it discredited them. See Rita v. United States, 551 U.S. 338, 3 5 6 )5 7 (2007) (suggesting that district courts should explain why nonfrivolous 3

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d e p a r t u r e arguments are rejected). Ugiagbe has failed to rebut the presumption o f reasonableness accorded his within-range sentence. See Alonzo, 435 F.3d at 5 5 4 . Therefore, we hold that the district court did not abuse its discretion by im p o s in g the forty-one month sentence. See Gall, 552 U.S. at 51. A F F IR M E D . JUDGMENT REFORMED TO INDICATE THAT UGIAGBE W A S SENTENCED PURSUANT TO 8 U.S.C. § 1326(b)(1).

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