# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 9, 2011

Decided February 17, 2011

Before

JOHN L. COFFEY, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 10

‐ 2976

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

AJIBOYE ADEYINKA,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 06 CR 12

Matthew F. Kennelly,

Judge

.

O R D E R

Ajiboye Adeyinka was convicted of conspiracy to possess cocaine with intent to

distribute 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to distribute, id. § 841(a)(1).

The district court calculated a guidelines imprisonment range of 78 to 97 months and

sentenced Adeyinka to a total of 97 months. Adeyinka filed a notice of appeal, but his

appointed lawyer seeks to withdraw because he cannot identify a nonfrivolous ground for

appeal. See Anders v. California

, 386 U.S. 738 (1967). Adeyinka opposes counsel’s motion.

See C IR

. R. 51(b). We confine our review to the potential issues identified in counsel’s

facially adequate brief and Adeyinka’s response. See United States v. Schuh

, 289 F.3d 968,

973

‐ 74 (7th Cir. 2002). NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 2976 Page 2

Counsel first considers whether Adeyinka could argue that the trial evidence does

not support his convictions. To convict on the substantive count, the government had to

prove that Adeyinka knowingly possessed cocaine for distribution. See 21 U.S.C. § 841(a)(1);

United States v. Starks

, 309 F.3d 1017, 1022 (7th Cir. 2002). To convict Adeyinka on the

conspiracy count, the government needed to prove that there was an agreement to possess

and distribute cocaine, and that each defendant joined the agreement knowingly and

intentionally. See 21 U.S.C. §§ 846, 841(a)(1); United States v. Medina

, 430 F.3d 869, 881 (7th

Cir. 2005).

We agree with counsel that a sufficiency challenge would be frivolous. The

government introduced audio and video recordings of a meeting between an informant and

codefendant Adesola Ayoola where they agreed that the informant would ingest cocaine

pellets and smuggle them to London for distribution. Alooya told the informant that he

would arrange for someone to deliver the cocaine along with food and medicine that would

help him ingest the pellets. At the appointed time Adeyinka delivered a bag of cocaine

pellets, lemons, salt, and antidiarrheal medication to the informant at his hotel. During the

encounter, which was captured on audio and video and observed by surveillance agents,

Adeyinka arrived at the informant’s hotel room, told him he had some things for him in his

car, and together they called Ayoola to confirm that Adeyinka was supposed to deliver the

package to the informant. Investigators then observed Adeyinka and the informant return

to his car to retrieve the package and Adeyinka driving evasively on his return home. After

he was arrested and again at trial, Adeyinka denied involvement in the conspiracy and

explained that, in exchange for a $2,000 loan, he had agreed to deliver lemons and salt to

someone who urgently needed them. A federal agent also explained how cocaine

sometimes is smuggled into the United States and then on to London where it commands a

higher price. The agent related that ingesting cocaine pellets is one way that couriers

smuggle the drug, and he discussed how the quantity and purity of cocaine varies at

different stages of the distribution chain.

Counsel next considers whether Adeyinka could challenge the admission of the

agent’s testimony about the distribution of cocaine. Over a relevancy objection, the agent

was permitted to offer an expert opinion that the quantity and purity of the cocaine

delivered by Adeyinka—700 grams of 98% purity—were consistent with distribution rather

than personal use. The district court reasoned that the testimony was relevant because the

government had to prove intent to distribute. Law enforcement agents routinely testify

about the mechanics of the drug trade, and expert testimony is an accepted method of

proving intent to distribute. See, e.g.

, United States v. Huddleston

, 593 F.3d 596, 601 (7th Cir.

2010); United States v. Winbush

, 580 F.3d 503, 510

‐ 11 (7th Cir. 2009); United States v. Morris

,

576 F.3d 661, 673

‐ 674 (7th Cir. 2009). Given that we would review for abuse of discretion,No. 10

‐ 2976 Page 3

see United States v. Klebig

, 600 F.3d 700, 715 (7th Cir. 2009), counsel is correct that an appeal

on this basis would be frivolous.

Counsel also evaluates whether Adeyinka might argue that it was error to admit the

recordings of his and Ayoola’s conversations with the informant, who did not testify at trial.

But Adeyinka’s recorded statements were nonhearsay admissions, see F ED R. E VID

. 801(d)(2)(A); United States v. Dennis

, 497 F.3d 765, 769 n.1 (7th Cir. 2007), and Ayoola’s were

nonhearsay statements of a coconspirator, see F ED R. E VID

. 801(d)(2)(E); United States v.

Hargrove

, 508 F.3d 445, 449 (7th Cir. 2007). And the absence of the informant was

inconsequential, since his side of the conversations was properly admitted as nonhearsay

background to give context to the recorded statements of Adeyinka and Ayoola. See United

States v. James

, 487 F.3d 518, 524 (7th Cir. 2007); United States v. Van Sach

, 458 F.3d 694, 701

(7th Cir. 2006); United States v. Tolliver

, 454 F.3d 660, 666 (7th Cir. 2006). The recordings

captured the planning and execution of Adeyinka’s cocaine delivery, and we agree with

counsel that an appellate challenge to their admission would be frivolous.

Another potential issue discussed by counsel is the use of an “ostrich instruction” in

the jury charge. The district court, responding to Adeyinka’s trial testimony that he did not

know what was in the bag he delivered to the informant, instructed the jurors that they

could “infer knowledge from a combination of suspicion and deliberate indifference to the

truth” and might conclude that Adeyinka acted knowingly if they found that he “had a

strong suspicion that things were not what they seemed or that someone had withheld some

important facts, yet deliberately shut his eyes for fear of what he would learn.” Adeyinka

had argued that this instruction, which is drawn from the pattern language, see Seventh

Circuit Pattern Jury Instruction 4.06, would allow the jury to convict him based on negligent

conduct. But we have approved the use of indistinguishable instructions many times, see,

e.g., United States v. Garcia

, 580 F.3d 528, 536

‐ 37 (7th Cir. 2009); United States v. Leahy

, 464

F.3d 773, 796 (7th Cir. 2006); United States v. Jaffe

, 387 F.3d 677, 681 (7th Cir. 2004), and given

Adeyinka’s preposterous story, it would be frivolous to contest the use of the instruction in

this case.

Adeyinka also objected that the district court’s intent instruction undermined the

government’s burden of proof by allowing the jury to infer intent to distribute “from the

possession of a quantity of a controlled substance larger than needed for personal use.”

Counsel notes that challenging the instruction would be frivolous because possession of a

quantity of drugs larger than needed for personal use can support a conviction for

possession with intent to distribute, see United States v. Smith

, 34 F.3d 514, 523 (7th Cir.

1994), and the government introduced evidence that Adeyinka delivered a quantity of

drugs larger than needed for personal use.No. 10

‐ 2976 Page 4

Counsel next considers whether Adeyinka could challenge the calculation of his

imprisonment range. The district court set a base offense level of 26 because Adeyinka had

delivered more than 700 grams of cocaine

, U.S.S.G. § 2D1.1(c)(7), and added 2 levels for

obstruction of justice under U.S.S.G. § 3C1.1 because he fled to Canada before sentencing

and remained a fugitive for 3 years. Adeyinka argued that he went to Canada to be with his

children and thus the increase should be limited to 1 level. The district judge did not

believe this explanation, but it would not have mattered because the guidelines range,

although no longer binding, must still be calculated correctly, see Gall v. United States

, 552

U.S. 38, 51 (2007); United States v. Aljabari

, 626 F.3d 940, 950 (7th Cir. 2010), and when a

sentencing court finds that obstruction occurred, a 2

‐ level increase is required, not optional,

see United States v. Gilleylen

, 81 F.3d 70, 72 (7th Cir. 1996). Adeyinka does not deny that he

fled to Canada instead of attending his sentencing hearing. We agree with counsel that it

would be frivolous to argue that the adjustment was unwarranted.

Adeyinka asserts, in his Rule 51(b) response, that the increase for obstruction of

justice is prohibited by the extradition treaty between the United States and Canada. This

treaty mandates that he can be punished only for the crimes for which he was extradited.

See Treaty on Extradition, U.S.

‐ Can., art. 12(1), Dec. 3, 1971, 27 U.S.T. 983. Our sister circuits

have analyzed similar restrictions in other extradition treaties and concluded that relying on

relevant conduct to determine an appropriate sentence does not constitute punishment for a

separate offense. See, e.g.

, United States v. Lomeli

, 596 F.3d 496, 500

‐ 03 (8th Cir. 2010); United

States v. Robinson

, 503 F.3d 522, 530 (6th Cir. 2007); United States v. Garrido

‐ Santana

, 360 F.3d

565, 578 (6th Cir. 2004); United States v. Lazarevich

, 147 F.3d 1061, 1063

‐ 64 (9th Cir. 1998). It

would thus be frivolous to argue that this upward adjustment violates the extradition treaty

with Canada.

Finally, counsel considers whether Adeyinka could challenge the reasonableness of

his prison sentence. The total term of 97 months is within the guidelines range, and counsel

cannot identify any reason that the presumption of reasonableness applicable to a sentence

within the guidelines range should not apply in this case. See Rita v. United States

, 551 U.S.

338, 347 (2007); United States v. Pape

, 601 F.3d 743, 746 (7th Cir. 2010). In evaluating the

sentencing factors in 18 U.S.C. § 3553(a), the district court considered the letters from family

members Adeyinka offered in mitigation and his argument that he should receive a shorter

sentence because of his poor health. But the judge also noted that Adeyinka had perjured

himself at trial, had absconded before sentencing and continued his criminal conduct

during his three years as a fugitive, and showed little remorse for his actions. We would

not conclude that the court abused its discretion in sentencing Adeyinka at the top of the

guidelines range, and thus counsel is correct that any challenge to the reasonableness of the

sentence would be frivolous.

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.