Argued and Submitted, December 9, 2014, Pasadena, California
Appeal from the United States District Court for the Central District of California. Dale S. Fischer, District Judge, Presiding. D.C. No. 2:09-cr-01099-DSF-1.
The panel affirmed a sentence in a case in which the defendant appealed on the ground that his below-Guidelines sentence would have been even lower if the district court had considered his ineffective-assistance-of-counsel claim as a mitigating factor under 18 U.S.C. § 3553(a).
The panel held that ineffective assistance of counsel is not within the enumerated § 3553(a) sentencing factors because it does not fall under the " nature and circumstances of the offense," and does not reflect either the " history and characteristics of the defendant" or the need for the sentence " to promote respect for the law."
The panel therefore concluded that the district court's failure to consider ineffective assistance of counsel as a sentencing factor was not procedural error, and that the below-Guidelines sentence is substantively reasonable.
Edward M. Robinson (argued), Law Office of Edward M. Robinson, Torrance, California, for Defendant-Appellant.
Andre Birotte, Jr., United States Attorney, and Robert E. Dugdale and Jeff Mitchell (argued), Assistant United States Attorneys, Los Angeles, California, for Plaintiff-Appellee.
Before: Ronald Lee Gilman,[*] Susan P. Graber, and Consuelo M. Callahan, Circuit Judges.
GILMAN, Circuit Judge
In 2012, Claudio Uche Dibe pleaded guilty to 15 counts of wire fraud without reaching a plea agreement with the government. The district court sentenced him to 120 months in prison, which was below the appropriate U.S. Sentencing Guidelines range. Dibe now appeals on the ground that his sentence would have been even lower if the district court had considered Dibe's ineffective-assistance-of-counsel claim as a mitigating factor under 18 U.S.C. § 3553(a). For the reasons set forth below, we AFFIRM the judgment of the district court.
A. Underlying offense
For years, Dibe was part of a scheme to defraud victims through false and fraudulent pretenses. Coparticipants in Nigeria contacted individuals in the United States by email and telephone, falsely telling them that they had won a lottery or were
named in an inheritance. Dibe represented himself as diplomat " John Brown" and told the victims that they needed to send money for fees and costs before they could receive the promised lottery prize or inheritance.
The victims' money, however, was kept by Dibe and his coparticipants for their own benefit. Records reflect that more than one million dollars was collected in wire transfers from the victims. Dibe's conduct resulted in his being charged in 2009 with 15 counts of wire fraud, in violation of 18 U.S.C. § 1343.
B. Plea negotiations and guilty plea
The government and Dibe engaged in plea negotiations beginning in 2011, with the government making him multiple plea offers that were never accepted. On May 18, 2012, the government extended what was ultimately its last proposed plea agreement. Dibe contends that the proposed plea stipulated a total offense level of 27 and a criminal-history category of I, which would have resulted in a Sentencing Guidelines range of 70 to 87 months of imprisonment. The plea agreement in the record, however, appears to lay out a total offense level of 30, which, when combined with a criminal-history category of I, results in a Guidelines range of 97 to 121 months. Although the exact Guidelines range ...