IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

V. 

OLUWAMUYIWA ABOLAD 

OLAWOYE, 

Defendant. 

AIKEN, District Judge. 

No. 1:15-cr-00172-AA-5 

No. l:18-cv-01868-AA 

OPINION & ORDER 

The matte1· comes before the Court on Defendant Oluwamuyiwa Abolad Olawoye's 

Motion to Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255. ECFNo. 337. For the reasons 

set forth below, Defendant's motion under§ 2255 is DENIED. Because the motion and record 

conclusively show that Defendant is entitled to no relief, no evidentiary hearing is required. 

BACKGROUND 

In May 2015, Olawoye was indicted, along with a number of co-conspirators, for his role 

in a wide-ranging fraud and identity theft scheme. The conspiracy involved both indicted and 

unindicted co-conspirators and participants. Olawoye and his codefendants were charged with a 

single count of Conspiracy to Commit Mail and Wire Fraud (Count 1), seven counts of Mail Fraud 

(Counts 2-8), six counts of Wire Fraud (Counts 9-14), and thirteen counts of Aggravated Identity 

Theft (Counts 15-27). 

At the time of Olawoye's first appearance, Magistrate Judge Mark Clarke appointed 

attorney Robert Stone to represent Olawoye. ECF No. 36. On July 6, 2015, Olawoye retained 

Page 1 - OPINION & ORDER 
attorney Jay Frank, who replaced Stone as Olawoye's counsel. ECF No. 59. On September 18, 

2015, Frank withdrew as Olawoye's attorney and Stone was re-appointed as counsel for Olawoye. 

ECF Nos. 83, 85. Over a year later, on January 4, 2017, Olawoye retained Larry Roloff to serve 

as his attorney. ECF No. 123. Given the complexity of the case and the volume of discovery 

materials, Roloff sought and received continuances in order to get up to speed on Olawoye's case. 

ECF Nos. 125, 136. 

In July 2017, shortly before trial was set to begin, Olawoye entered into a plea agreement 

with the Government. ECF No. 201. Pursuant to the plea agreement, Olawoye agreed to plead 

guilty to Conspiracy to Commit Mail and Wire Fraud (Count 1 ), Mail Fraud (Count 6), Wire Fraud 

(Count 11), and three counts of Aggravated Identity Theft (Counts 18, 19, and 24). In exchange, 

the Government agreed to drop the remaining counts. For purposes of Olawoye's sentencing 

guidelines, the parties agreed that the base offense level for Count I was seven prior to adjustments 

and that Olawoye would receive a two-level enhancement for more than ten victims and a twolevel enhancement for the use of sophisticated means. The Government agreed to recommend a 

three-level reduction for acceptance of responsibility. The parties also agreed that the amount of 

loss and the application of any role adjustment would be determined by the Court at the time of 

sentencing. 

As part of his plea agreement, Olawoye agreed to waive the right to appeal from any aspect 

of his conviction 01· sentence except for a claim that "(l) the sentence imposed exceeds the statutory 

maximum, or (2) the Court arrive[d] at an advisory sentencing guideline range by applying an 

upward departure under the provisions of Guideline Chapter 5K." Olawoye further waived his 

right to file any collateral attack on his conviction or sentence, including a motion under 28 U.S.C. 

§ 2255, on any grounds other than ineffective assistance of counsel. 

Page 2 - OPINION & ORDER 
On July 24, 2017, Judge Clarke accepted Olawoye's guilty plea pursuant to the plea 

agreement and ordered that a presentence report ("PSR") be prepared. ECF No. 199. The matter 

was then referred to this Comt for sentencing. 

The PSR recommended the same initial base offense level and adjustments for number of 

victims, use of sophisticated means, and acceptance of responsibility as contemplated by the plea 

agreement. With respect to the amount of loss, the PSR found that Olawoye was responsible for 

over $11 million, resulting in a twenty-level increase pursuant to U.S.S.G. § 2Bl.l(b)(l)(K). The 

PSR also noted Olawoye's active role in the conspiracy and listed several instances in which 

Olawoye had instructed both his co-defendants and unindicted co-conspirators on aspects of the 

fraud scheme. As a consequence, the PSR recommended a two-level enhancement for Olawoye's 

leadership role pursuant to U.S.S.G. § 3Bl. l(c). 

After applying all adjustments, the PSR calculated Olawoye's total offense level as 30, 

with criminal history category I, yielding an advisory guidelines range of 97 to 121 months. 

Olawoye was also subject to a mandatory 24-month consecutive sentence for Aggravated Identity 

Theft pursuant to 18 U.S.C. § 1028A. As sentencing cou1ts are prohibited from reducing the 

underlying sentence to account for the mandatory consecutive sentence under § 1028A(b ), 

Olawoye faced a total sentence of between 121 and 145 months. Olawoye also faced likely 

dep01tation to Nigeria upon completion of his term of incarceration. 

Olawoye's sentencing hearing was held on April 30, 2018. ECF No. 265. At the time of 

sentencing, the Government agreed with the PSR's findings and recommended a low-end sentence 

of 97 months, combined with the mandatory 24-month consecutive sentence for a total of 121 

months. Sentencing Tr.} at 11. ECF No. 292. Roloff argued against the imposition of a leadership 

role enhancement, citing to Olawoye's low-status role within the wider conspiracy and to an expe1t 

Page 3 ~ OPINION & ORDER 
psychologist's rep01i on Olawoye's personality. Sentencing Tr. 15-22; Def. Sentencing Mem. 

ECF No. 342. The Comi also heard from Olawoye himself, who described his role in the 

conspiracy at some length. Sentencing Tr. 28-41, 60-64. In particular, Olawoye objected to any 

description of himself as a leader or holding a leadership role in the conspiracy. Sentencing Tr. 

After reviewing the record and hearing from the parties, the Couti determined that 

Olawoyes total offense level was 30, which included a two-level enhancement for a leadership 

role. Sentencing Tr. 54. After reviewing the factors laid out in 18 U.S.C. § 3553(a), the Court 

depatied downward from Olawoye's guidelines range and imposed a sentence of 84 months on 

Counts 1, 6, and 11, with a consecutive sentence of 24 months for Counts 18, 19, and 24. 

Sentencing Tr. 56-57. In total, Olawoye was sentenced to 108 months, followed by a three-year 

term of supervised release and $3,257,025.00 in restitution. ECF No. 301. 

On May 9, 2018, Olawoye filed Notices of Appeal on his own behalf. ECF Nos. 269,270. 

Roloff withdraw as counsel for Olawoye and the Court appointed appellate counsel to replace him. 

ECF Nos. 272, 279, 280, 283. On October 5, 2018, Olawoye voluntarily dismissed his appeal. 

ECF No. 333. The present motion followed. 

LEGAL STANDARDS 

Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court 

that imposed the sentence to vacate, set aside, or correct the sentence on the ground that: 

[T]he sentence was imposed in violation of the Constitution or laws of the United 

States, or that the comt was without jurisdiction to impose such sentence, or that 

the sentence was in excess of the maximum authorized by law, or is otherwise 

subject to collateral attack. ... 

28 U.S.C, § 2255(a). 

Page 4 - OPINION & ORDER 
To warrant relief, a petitioner must demonstrate that the e11'or of constitutional magnitude 

had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht 

v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 

1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases 

under section 2255,just as it does to those under section 2254."). 

Under § 2255, "a district comi must grant a hearing to determine the validity of a petition 

brought under that section, ' [ u ]nless the motions and the files and records of the case conclusively 

show that the prisoner is entitled to no relief,"' United States v. Blaylock, 20 F.3d 1458, 1465 (9th 

Cir. 1994) (alteration and emphasis in original) (quoting 28 U.S.C. § 2255). In dete1mining 

whether a§ 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has 

made specific factual allegations that, if true, state a claim on which relief could be granted." 

United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal 

quotation marks and citation omitted), A district court may dismiss a § 2255 motion based on a 

facial review of the record "only if the allegations in the motion, when viewed against the record, 

do not give rise to a claim for relief or are 'palpably incredible or patently frivolous."' kl at 1062-

63 (quoting United States v. Schajlander, 743 F.2d 714, 717 (9th Cir. 1984)); see United States v. 

Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). Conclusory statements in a § 2255 motion are 

insufficient to require a hearing. Hearst, 638 F.2d at 1194. 

DISCUSSION 

I. Procedural Default 

Olawoye objects to the Cami's application of the sentencing factors under 18 U.S.C. § 

3553(a) and the Comt's consideration of Olawoye's psychological rep01t at the time of sentencing. 

Page 5 - OPINION & ORDER 
Olawoye argues that the Comt violated his due process rights by its consideration of these issues. 

As these claims were not raised in a direct appeal, they are procedurally defaulted. 

Habeas review is not an alternative or substitute for a direct appeal. Bousley v. United 

States, 523 U.S. 614, 621 (1998). Absent a showing of cause and prejudice, a habeas petitioner 

procedurally defaults all claims that were not raised in his direct appeal, other than claims asserting 

ineffective assistance of counsel. 1\tlassaro v. United States, 538 U.S. 500, 504 (2003). "[T]o obtain 

collateral relief based on trial errors to which no contemporaneous objection was made, a convicted 

defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual 

prejudice' resulting from the en·ors of which he complains." United States v. Frady, 456 U.S. 152, 

167-68 (1982). To demonstrate "cause," the defendant must establish that "some objective factor 

external to the defense impeded his adherence to the pmcedural rule." United States v. Skurdal, 

341 F.3d 921, 925 (9th Cir. 2004) (internal quotation marks and citation omitted). For "prejudice," 

the defendant must show "not merely that the errors at his trial created a possibility of prejudice, 

but that they worked to his actual and substantial disadvantage, infecting his entire trial with error 

of constitutional dimensions." Frady, 456 U.S. at 170 (emphasis in original). Comis need not 

address both prongs if the defendant fails to satisfy one. Id at 168. 

In this case, Olawoye filed and then voluntarily dismissed a direct appeal of his sentence 

with the Ninth Circuit. United States v. Olawoye, Ninth Cir. Case No. 18-30103. Olawoye's 

voluntary dismissal occull'ed before the filing of his opening brief and so the record does not 

indicate the precise basis of Olawoye's intended challenge. Even assuming Olawoye's intended 

to raise the present issues as part of his direct appeal, however, his claims are still subject to 

procedural default. "A claim has not been 'raised' if the defendant includes the claims in an appeal 

to the comi of appeals but voluntarily dismisses the appeal." Alvarez-Herrera v. United States, 

Page 6- OPINION & ORDER 
Case No. CV 16-05384-BRO, 2017 WL 1097173, at *4 (C.D. Cal. Mar. 23, 2017) (citing Smith v. 

Baldwin, 510 F .3d 1127, 1138 (9th Cir. 2007)). 

Olawoye does not demonstrate cause for excusing his procedural default.1 Nor is Olawoye 

able to demonstrate prejudice. Contrary to Olawoye's suggestion, his sentence represents a 

substantial downward departure from Olawoye's guidelines range, which was expressly based on 

the Court's consideration of the § 3553(a) factors. Sentencing Tr. 55-57. The Court also noted 

the psychological evaluation submitted by Roloff as part of its consideration of the § 3553(a) 

factors. Sentencing Tr. 55. Olawoye is clearly dissatisfied with the Comt's rulings, but that 

dissatisfaction does not constitute the necessruy showing of an en-or of constitutional dimensions.2 

The Comt therefore finds that Olawoye's claims are procedurally defaulted, except insofar as he 

alleges ineffective assistance of counsel. 

II. Ineffective Assistance of Counsel 

Olawoye seeks to vacate his sentence based on ineffective assistance of counsel. Olawoye 

asserts that his trial counsel, Larry Roloff, was ineffective for (1) failing to retain the services of a 

Yoruba interpreter; and (2) for failing to argue for a minor or minimal role in the conspiracy. 

Comts use a two-pa1t test to determine whether a defendant has received constitutionally deficient 

assistance of counsel. Premo v. 1'.tfoore, 562 U.S. 115, 121 (2011). Under this test, a defendant 

must prove that counsel's assistance was deficient and that the deficient performance prejudiced 

the defense. Id 

1 As noted, Olawoye waived his appeal rights as part of his plea agreement with the Government, except in ce11ain 

limited and presently inappJicable circumstances. Jn the motion to voluntarily dismiss Olawoye's direct appeal, 

Olawoye's appellate counsel indicates that "the advisability of proceeding with the appeal in light of the appellate 

waiver contained in [Olawoye's] plea agreement with the government" was a major factor in the voluntarily 

dismissal. United States v. Olawoye, Ninth Cir. Case No. 18-30103 (dkt. no. 16). The Court also notes that 

Olawoye waived his right to collaterally attack his conviction or sentence on any grounds other than ineffective 

assistance of counsel. 2 Procedural default may also be excused by a showing of actual innocence, see United States v. Braswell, 501 F.3d 

1147, 1150 (9th Cir. 2007), but Olawoye does not argue, or even suggest, that he is innocent of the offenses. 

Page 7 - OPINION & ORDER 
To prove the deficiency of counsel's performance, the defendant must show counsel made 

errors so serious that his "'representation fell below an objective standard of reasonableness"' 

under prevailing professional norms. Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) ( quoting 

Strickland v. Washington, 466 U.S. 668,688 (1984)). The court must inquire "whether counsel's 

assistance was reasonable considering all the circumstances" at the time of the assistance. 

Strickland, 466 U.S. at 688. 

In assessing whether counsel's performance was deficient, "courts must 'indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable professional 

assistance' and make every effort 'to reconstruct the circumstances of counsel's challenged 

conduct, and to evaluate the conduct from counsel's perspective at the time.,,, Hibbler v. Benedetti, 

693 F.3d 1140, 1149 (9th Cir. 2012) (quoting Strickland, 466 U.S. at 689). Ultimately, the 

defendant's "burden is to show 'that counsel made enors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."' Harrington v. 

Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687). 

"To satisfy the prejudice prong under Strickland, a defendant must show 'a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding would have 

been different."' Saesee v. McDonald, 725 F.3d 1045, 1048 (9th Cir. 2013) (quoting Strickland, 

466 U.S. at 694). '"A reasonable probability is a probability sufficient to undem1ine confidence 

in the outcome."' Id. (quoting Strickland, 466 U.S. at 694). 

The court "need not determine whether counsel's performance was deficient before 

examining the prejudice suffered by the defendant[.]'' Strickland, 466 U.S. at 697. "If it is easier 

to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course 

should be followed." Id. 

Page 8 - OPINION & ORDER 
A. Yoruba Interpreter 

Olawoye is a citizen and national of Nigeria and speaks Yornba as his native language. 

Olawoye is "fluent in English as a secondary language" and "is also familiar with both spoken and 

written Chinese." PSR, at 16. Olawoye argues that Roloff was ineffective for failing to seek out 

and retain the services of a Yoruba interpreter and claims that this failure resulted in a continuing 

inability to communicate. As a consequence, Olawoye alleges that Roloff lacked a clear 

understanding of the conspiracy or Olawoye's role and place within it. 

The Government has sought and submitted a declaration from Roloff in support of its 

response to Olawoye's motion. ECF No. 342. In his declaration, Roloff says that "it was initially 

difficult to understand [Olawoye's] pronunciation of the English language due to his accent," but 

that he was able to quickly adapt and fully understand Olawoye. Roloff affhms that: 

I had an extensive amount of contact with Mr. Olawoye throughout my 

representation of him, including visiting him vhtually every week and taking 

numerous phone calls from him in the interim. Mr. Olawoye was very involved in 

his case and he communicated with me extensively about all of the issues in the 

case. Throughout that time, as I became familiar with his speech patterns, I was 

not having difficulty understanding his conversations with me. Furthermore, he 

never indicated that he had any difficulty whatsoever understanding my 

communications with him. . . . Therefore, I did not feel the assistance of a Yoruba 

interpreter was needed. 

Roloff Deel. 3 

At the time of sentencing, and in his sentencing letter, Roloff argued the very issues 

Olawoye now raises concerning his role within the conspiracy and his relationship with his coconspirators. This further demonstrates that Roloff was able to understand Olawoye and to 

communicate effectively with him. On this record, the Court cannot conclude that Roloff was 

ineffective for declining to retain a Yoruba interpreter. 

3 The Court engaged in an extended colloquy with Olawoye during sentencing, during which time the Court 

observed that Olawoye was able to both understand and communicate clearly and effectively in English. 

Page 9 - OPINION & ORDER 
B. Minor Role Adjustment 

Olawoye contends that Roloff failed to adequately argue for a minor role adjustment 

pursuant to U.S.S.G. § 3B1.2. Under § 3B1.2, a defendant's offense level may be reduced by 

between two and four levels to account for the defendant's minimal or minor role in the offense. 

This adjustment is meant to apply to defendants who are "substantially less culpable than the 

average participant in the criminal activity." U.S.S.G. § 3B1.2, cmt. (n.3(A)). The application of 

this adjustment is "based on the totality of the circumstances and involves a dete1mination that is 

heavily dependent upon the facts of the particular case." U.S.S.G. § 3B1.2, cmt. (n.3(C)). 

In this case, the Government sought an enhanced sentence for Olawoye's role as a leader 

or organizer within the conspiracy. As discussed in the PSR, this recommendation was based on 

numerous episodes in which Olawoye gave guidance or direction to other conspirators. Such 

conduct was inconsistent with a minor or minimal role adjustment. 

In his declaration, Roloff explains that he believed a "strict" or "technical" application of 

the guidelines would result in an enhancement for a leadership role, but that such an enhancement 

was not warranted based on Olawoye's actual relationship to his co-conspirators. Roloff Deel. 

Under the circumstances, Roloff opted to pursue a strategy of arguing against a role enhancement 

and further arguing that, even if such an enhancement did apply, the Court should compensate and 

adjust the sentence downward by applying the§ 3553(a) factors. In support of that strategy, Roloff 

sought and presented a psychological assessment of Olawoye. Roloff also argued that the 

conspiracy's internal dynamics were driven, at least in part, by African cultural factors which 

placed Olawoye on a lower level than his co-conspirators, despite the degree and nature of 

Olawoye's conduct in the course of the scheme. 

Page l O - OPINION & ORDER 
These are precisely the sort of tactical and strategic considerations and decisions that 

Strickland identified as deserving of respect and deference when assessing a claim of ineffective 

assistance. Roloff made a calculated and considered judgment based on his experience as a defense 

attomey and his review of the Governmenf s evidence. On this record and under these 

circumstances, the Court cannot conclude that Roloff was ineffective for declining to pursue a 

minor or minimal role adjustment. 

III. Certificate of Appealability 

A final order in a§ 2255 proceeding may not be appealed unless a judge issues a certificate 

of appealability. 28 U.S.C. § 2253(c)(l)(B). A certificate of appealability may not issue unless 

"the applicant has made a substantial showing of the denial of a constitutional righC' 28 U.S.C. § 

2253(c)(2). In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Com1 explained that a 

ce11ificate of appealability under § 2253(c) is warranted when a habeas prisoner makes "a 

demonstration that ... includes a showing that reasonable jurists could debate whether ... · the 

petition should have been resolved in a different manner or that the issues presented were adequate 

to deserve encouragement to proceed fiu1her." Icl at 483~84 (intemal quotation marks and citation 

omitted). In this case, the Com1 concludes that Olawoye has failed to make the required showing 

and so declines to issue a ce11ificate of appealability. 

Page 11 - OPINION & ORDER 
CONCLUSION 

For the reasons set forth above, Defendant's Motion under 28 U.S.C. § 2255, ECF No. 337, 

is DENIED. No evidentiary hearing is necessary because the allegations in Defendant's motion, 

when viewed against the record, do not give rise to a claim for relief. The Court declines to issue 

a certificate of appealability on the basis that Defendant has not made a substantial showing of the 

denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

0-' 

It is so ORDERED and DATED this/ i day of February, 2019. 

ANN AIKEN 

United States District Judge 

Page 12 - OPINION & ORDER