* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-10229

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AKINPELU ASHOKEJI, also known as James A. Jimoh,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:99-CR-214-2-A

--------------------

December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges. 

PER CURIAM:*

Akinpelu Ashokeji, also known as James A. Jimoh, appeals his

sentence after pleading guilty to two counts of mail fraud and

illegal reentry after deportation. Ashokeji argues that the

district court erred in not granting a downward departure under

the provision contained in U.S.S.G. § 2L1.2, comment. (n.5), and

that his counsel was ineffective for failing to seek a downward

departure. He contends that his prior convictions consisted of

one felony offense and two misdemeanors, and that his felony

conviction was not a crime of violence or a firearm offense.
No. 00-10229

-2-

Section 2L1.2, comment. (n.5) applies to a person “convicted

of only one felony offense.” Ashokeji, as he admitted in his

factual resume and as documented in the PSR, was previously

convicted of two felony offenses: Fraud and Related Activity in

Connection with Access Devices, in violation of 18 U.S.C. 

§ 1029(a)(2), and Conspiracy to Commit Bank Fraud, in violation

of 18 U.S.C. § 371. Both of these crimes are classified as

felonies under federal law. 18 U.S.C. § 3559(a). Substantive

and conspiracy convictions are separate and distinct offenses. 

United States v. Brown, 7 F.3d 1155, 1162 (5th Cir. 1993). The

fact that both convictions may have arisen out of the same

conduct does not mean they are to be considered as a single

felony offense for purposes of the application of § 2L1.2,

comment. (n.5). Having been previously convicted of two felony

offenses as defined in § 2L1.2, comment. (n.1), Ashokeji was

ineligible for the downward departure described in § 2L1.2,

comment. (n.5).

Ashokeji argues that the district court erred by misapplying

the sentencing guidelines in its calculation of the intended

loss. He contends that the PSR failed to justify the basis of

its determination of the loss. He argues that because the

intended loss cannot be determined, the district court should

have applied an actual loss standard.

The PSR determined the intended loss to be $392,700.96.

Ashokeji lodged written objections to this determination of the

intended loss, making the same arguments he makes now on appeal. 

At the sentencing hearing, Ashokeji’s counsel stated that
No. 00-10229

-3-

Ashokeji would “waive his objections to the presentence report.” 

Generally, plain error applies to arguments made for the

first time on appeal, absent waiver. United States v. Calverley,

37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). In Calverley, we

distinguished between waiver and forfeiture. Waiver, the

intentional relinquishment or abandonment of a known right,

results in no error. Forfeiture, the failure to make the timely

assertion of a right, does not extinguish the error. 37 F.3d at

162. Ashokeji knowingly and intentionally passed up the

opportunity to argue his objections to the PSR to the district

court. He specifically represented to the district court that he

was “waiving” his objections. Ashokeji waived this issue. Once

a right is waived at trial, it may not be resurrected on appeal. 

United States v. Chavez-Valencia, 116 F.3d 127, 129 (5th Cir.

1997).

AFFIRMED.