United States v. Victor Aladekoba

Court Case Details
Court Case Opinion






No. 98-4552

Paul Anthony Johnson, a/k/a TJ,

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.

Submitted: April 20, 1999

Decided: May 24, 1999

Before WIDENER, ERVIN, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.



Douglas J. Wood, Riverdale, Maryland, for Appellant. Jamie M. Ben-
nett, Assistant United States Attorney, Baltimore, Maryland, for


Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).



Victor Aladekoba was found guilty by a jury of conspiracy in vio-
lation of 21 U.S.C. § 846 (1994) and 18 U.S.C.§ 2 (1994); possession
with intent to distribute in violation of 21 U.S.C.§ 841(a)(1) (1994)
and 18 U.S.C. § 2; and use of a firearm in relation to a drug traffick-
ing offense in violation of 18 U.S.C. § 924(c)(1) (1994). Aladekoba
was sentenced to two concurrent 260-month terms of imprisonment
for the conspiracy and possession convictions. Aladekoba also
received a consecutive 60-month term for the firearm conviction, for
a total of 320 months' imprisonment.

In November, 1997, this Court affirmed Aladekoba's conspiracy
and possession convictions but vacated the conviction for use of a
firearm in relation to a drug trafficking offense. See United States v.
Aladekoba, 1997 WL 712894 (4th Cir. Nov. 17, 1997) (No. 94-5371)
(unpublished). The firearm conviction was vacated based upon the
Supreme Court's decision in Bailey v. United States, 516 U.S. 137
(1995) (holding that conviction under statute that criminalizes "use"
of firearm in relation to drug trafficking offense requires evidence
sufficient to show active employment of firearm by defendant). We
then remanded for re-sentencing.

Upon remand, the district court imposed a sentence of 300 months'
imprisonment. Aladekoba again appeals. His attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
addressing whether the district court erred in assigning a two-level
enhancement to Aladekoba's offense for possession of a firearm
under U.S. Sentencing Guidelines Manual§ 2D1.1(b)(1) (1992) and
whether the court erred in denying downward departure to Aladekoba.
In addition, Aladekoba filed a pro se supplemental brief alleging inef-
fective assistance of counsel.

Because the district court fully understood its authority to depart
from the Sentencing Guidelines, its refusal to depart in this case is not
subject to appellate review. See United States v. Bayerle, 898 F.2d 28,
31 (4th Cir. 1990). Furthermore, we do not find that the district court
clearly erred in its assignment of the two-level enhancement. See


United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997); United
States v. Hawthorne, 94 F.3d 118, 121-22 (4th Cir. 1996); United
States v. Morsley, 64 F.3d 907, 915 (4th Cir. 1995). Finally, the
record does not conclusively establish that Aladekoba received inef-
fective assistance of counsel. Accordingly, we decline to consider this
claim on direct appeal. See United States v. Smith, 62 F.3d 641, 651
(4th Cir. 1995); Lockhart v. Fretwell, 506 U.S. 364, 370 (1993);
Strickland v. Washington, 466 U.S. 668, 687 (1984).

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Aladeko-
ba's sentence. We also deny counsel's motion to withdraw at this
time. This Court requires that counsel inform his client in writing of
his right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
again move in this Court for leave to withdraw from representation.
See 4th Cir. Local Rule 46(d). Counsel's motion must state that a
copy thereof was served on the client. See id.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.