IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

V. 

OLUWASEUNARA TEMITOPE 

OSANYINBI, 

Defendant. 

AIKEN, District Judge. 

No. 1: l 5-cr-00172-AA-4 

No. l:18-cv-00391-AA 

OPINION & ORDER 

The matter comes before the Cami on Defendant Oluswaseunara Temitope Osanyinbi's 

Motion to Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255. ECFNo. 248. 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, Osanyinbi was indicted, along with a number of co-conspirators, for his role 

in a wide-ranging fraud and identity theft scheme. Osanyinbi 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 thhieen counts of Aggravated 

Identity Theft (Counts 15-27). Osanyinbi retained attorney Lauren Regan to represent him. 

In December 2016, Osanyinbi entered into a plea agreement with the Government. Under 

the agreement, Osanyinbi would plead guilty to a single count each of Conspiracy to Commit Mail 

and Wire Fraud (Count 1 ), Mail Fraud (Count 7), and Wire Fraud (Count 12), as well as four 

Page I - OPINION & ORDER 
counts of Aggravated Identity Theft (Counts 18, 19, 25, and 26), with the Government agreeing to 

dismiss the remaining counts of the indictment. ECF No. 121. 

With respect to the sentencing guidelines, the patties agreed that Count 1 had a base offense 

level of seven prior to adjustments, with a two-level enhancement for ten or more victims and a 

two-level enhancement for use of sophisticated means. The patties also agreed that the amount of 

loss involved in the offense was greater than $550,000, but less than $9,500,000 and that the Court 

would determine the precise amount of loss at the time of sentencing. Depending on the amount 

of loss, the parties agreed that Osanyinbi' s base offense level would be enhanced by between 

fourteen and eighteen levels. The parties also agreed that Osanyinbi' s base offense level would 

be reduced by three for acceptance of responsibility. 

The Government agreed that it would recommend a sentence within the applicable 

guideline range to be consecutive to each mandatory two-year term of imprisonment for the four 

counts of Aggravated Identity Theft. 1 The parties agreed that the Government was free to seek 

consecutive sentences for each of the Aggravated Identity Theft counts and that Osanyinbi was 

free to oppose such a request. As discussed below, the Government ultimately recommended that 

the sentences for Aggravated Identity Theft run concurrent to one another and consecutive to the 

sentences imposed for fraud and conspiracy. 

As patt of the agreement, Osanyinbi waived any right to appeal his conviction and sentence 

on any ground "except for a claim that: (1) the sentence imposed exceeds the statutory maximum, 

or (2) the court arrives at an advisory guideline range by applying an upward departure under the 

'In cases of Aggravated Identity Theft under 18 U.S.C.§ 1028A, courts are required to impose a two-year term of 

imprisonment. 18 U.S.C. § I 028A(a)( I). The sentencing court must impose this sentence consecutive to any other 

term of imprisonment. 18 U.S.C. § I 028A(b )(2). Courts are further prohibited from reducing the sentence for the 

underlying felony to compensate for the mandatory consecutive sentence imposed for Aggravated Identity Theft. 18 

U.S.C. § 1028A(b)(3). Courts may, in their discretion, impose concurrent sentences for multiple counts of 

Aggravated Identity Theft. 18 U.S.C. § 1028A(b)(4). 

Page 2 - OPINION & ORDER 
provisions of Guideline Chapter 5K." Similarly, Osanyinbi waived any right to file a collateral 

attack on his conviction or sentence, including a motion under § 2255, on any grounds other than 

ineffective assistance of counsel. 

On December 19, 2016, Magistrate Judge Mark Clarke accepted Osanyinbi's guilty plea 

pursuant to the plea agreement. ECF No. 119. Judge Clarke ordered that a presentence report 

("PSR") be prepared and the case was referred to this Coutt for sentencing. 

Consistent with the plea agreement, the PSR found Osanyinbi' s base offense level was 

seven, with a two-level increase for more than ten victims pursuant to U.S.S.G. § 2B 1. l(b )(2)(A), 

and a two-level increase for use of sophisticated means pursuant to§ 2Bl.l(b)(10)(C). The PSR 

found that Osanyinbi was responsible for approximately $2 million in losses for his role in the 

conspiracy and recommended a sixteen-level enhancement to Osanyinbi's offense level pursuant 

to § 2B 1.1 (b )(1 )(!). 

Although U.S.S.G. § 3Bl .2 provides for a two-to-four-level reduction for minimal or minor 

roles, the probation office was "unaware of any evidence indicating that [Osanyinbi's] conduct 

was especially limited or that his action were managed, directed, or overseen by others in a manner 

that may warrant a role reduction." As such, no reduction was recommended for a minor or 

minimal role. 

The PSR recommended a three-level reduction for acceptance of responsibility, for a total 

offense level of24 and a criminal history category of!. As such, Osanyinbi's guideline range was 

51 to 63 months, with an additional 24 months for the Aggravated Identity Theft counts. 

The Government concurred with the PSR's calculation of Osanyinbi's total offense level 

and guidelines range. ECF No. 142. The Government recommended a sentence of75 months, 

reflecting the low end of Osanyinbi's guidelines range with the sentences for all four counts of 

Page 3 - OPINION & ORDER 
Aggravated Identity Theft running concmTent with one another and consecutive to the sentences 

for conspiracy and fraud. 

In his sentencing memorandum, Osanyinbi argued that he was responsible for less than 

$1.5 million in losses and so his offense level should be enhanced by fomteen rather than sixteen 

levels. ECF No. 149. Osanyinbi argued for a two-to-four-level reduction for a minimal or minor 

role and for additional downward depattures pursuant to U.S.S.G. §§ 5K2A and 5K2.20. If the 

requested adjustments and depattures were granted, Osanyinbi' s total offense level would have 

been 14 with a guidelines range of 15-21 months, with a consecutive sentence of24 months for 

the Aggravated Identity Theft counts. 

A sentencing hearing was held on May 18, 2017. ECF Nos. 151, 162, 300. During the 

sentencing hearing, the Government called witnesses who testified as to the amount of loss and 

Osanyinbi' s role in the conspiracy. Those witnesses were cross-examined by Osanyinbi' s counsel. 

The Court heard argument from the attorneys, as well as a prepared statement from Osanyinbi 

himself. At the conclusion of the hearing, the Court held that Osanyinbi' s total offense level was 

24 with a criminal histoty of I and a guidelines range of 51 to 63 months. After considering the 

factors set forth in 18 U.S.C. § 3553(a), the Court imposed a below-guidelines sentence of 48 

months on Counts 1, 7, and 12. The Court also imposed the mandatory sentence of24 months for 

Counts 18, 19, 25, and 26 to run concurrent with one another and consecutive to the sentence 

imposed on Counts 1, 7, and 12 for a total sentence of 72 months followed by a three-year tern1 of 

supervised release and restitution in the amount of $876, 161.00.2 

The Coutt advised Osanyinbi that he had waived his appeal rights as part of his plea 

agreement, but that if he wished to file a Notice of Appeal, he would be permitted to do so. 

' Osanyinbi is a citizen and national of Nigeria. As discussed at the time of sentencing, Osanyinbi faces the nearce1iainty of deportation to Nigeria upon completion of his 'term of imprisonment. 

Page 4 - OPINION & ORDER 
Osanyinbi acknowledged that he understood. Osanyinbi did not file a direct appeal of his sentence. 

This 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 court 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). 

To wanant relief, a petitioner must demonstrate that the enor of constitutional magnitude 

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

v. Abrahamson, 507 U.S. 619, 637 (1993); see also United Stales v. lvfontalvo, 33 l F.3d 1052, 

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

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

Under§ 2255, "a district court must grant a hearing to detennine 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 determining 

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 comi 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."' Id. at 1062-

Page 5 - OPINION & ORDER 
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 

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

Osanyinbi asserts that his trial counsel, Lauren Reagan, was ineffective for (1) failing to file a 

direct appeal on his behalf; (2) failing to present evidence of sentencing disparity between 

Osanyinbi and other defendants sentenced for similar offenses; and (3) for failing to adequately 

argue for a minor role adjustment. Courts use a two-part test to determine whether a defendant 

has received constitutionally deficient assistance of counsel. Premo v. lvfoore, 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. 

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, "coutts must 'indulge a strong 

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

assistance' and make every eff01t '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 

Page 6 - OPINION & ORDER 
defendant's "burden is to show 'that counsel made enors so senous 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. 1\1cDonald, 725 F.3d 1045, 1048 (9th Cir. 2013) (quoting Strickland, 

466 U.S. at 694). "'A reasonable probability is a probability sufficient to undermine 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. "Ifit is easier 

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

should be followed." Id. 

I. Failure to File a Direct Appeal 

Osanyinbi argues that Reagan was ineffective for failing to file a direct appeal. A laWYer 

"who disregards specific instrnctions to file a notice of appeal acts in a manner that is 

professionally umeasonable." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In cases where 

there is not an express direction concerning the filing of an appeal, the attorney has a duty "to 

consult with the defendant about an appeal when there is reason to think either (1) that a rational 

defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), 

or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in 

appealing." Id. at 480. This inquiry is unde1iaken based on the information counsel knew or 

should have known at the time. Id. In order to show prejudice, "a defendant must demonstrate 

that there is a reasonable probability that, but for counsel's deficient failure to consult with him 

Page 7 - OPINION & ORDER 
about an appeal, he would have timely appealed." Id. at 484. This inquiry is fact-specific and 

"evidence that there were nonfrivolous grounds for appeal or that the defendant in question 

promptly expressed a desire to appeal will often be highly relevant in making this determination." 

Id. at 485. 

In this case, Regan informed Osanyinbi of his right to appeal and the limitations placed on 

that right by the plea agreement on multiple occasions, including during a meeting sho1tly after 

sentencing. Regan Deel. ECF No. 261-1. Regan memorialized the post-sentencing discussion in 

a May 19, 2017, letter, which the Government has submitted as pmt of Regan's Declaration. 

Osanyinbi and Regan remained in contact after sentencing. In August 2017, Osanyinbi wrote to 

Regan asking for documents from her file, which Regan provided. Osanyinbi wrote to Regan 

again in January 2018 to request assistance in retrieving photographs held by the Government, 

which Regan also obliged. Regan affirms that Osanyinbi never expressed any intention or desire 

to file a direct appeal of his sentence. 

As pali of his plea agreement, Osanyinbi agreed that the issue of the amount ofloss should 

be submitted to the Comt for determination. Osanyinbi waived his right to a direct appeal unless 

the Court imposed a sentence in excess of the statutory maximum or based on an upward departure, 

neither of which occurred. After sentencing, Regan explained to Osanyinbi that, because he had 

received a sentence within the statutory range as expected, she did not believe there were any nonfrivolous grounds for appeal.3 Neve1theless, Regan provided Osanyinbi with detailed written 

instructions on how to pursue a direct appeal, should he choose to do so. Osanyinbi did not file a 

direct appeal on his own behalf. 

J In fact, Osanyinbi's sentence represents a modest downward depm1ure from his guidelines range based on the 

Court's§ 3553(a) findings. 

Page 8 - OPINION & ORDER 
On this record, the Court concludes that Regan was not ineffective for failing to file a direct 

appeal on Osanyinbi's behalf or for failing to consult with Osanyinbi about the possibility of a 

direct appeal. 

II. Sentencing Disparity Evidence 

Osanyinbi asserts that Regan was ineffective for failing to provide the Court with a national 

sentencing disparity report at the time of sentencing. Osanyinbi contends that such a report would 

have demonstrated that his sentence was disproportionate to sentences imposed on similarly 

situated defendants. Although Osanyinbi does not specifically say what the repmi would have 

shown, he generally objects to guidelines enhancements based on the amount ofloss in fraud cases 

as unduly punitive. 

Among the factors district courts must consider in crafting an individualized sentence is 

"the need to avoid unwananted sentence disparities among defendants with similar records who 

have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). 

A voiding sentencing disparity on the basis of easily quantifiable values like amount 

of loss is a factor that the Guidelines are uniquely well-suited to accomplish. 

Avoidance of unwarranted disparities was clearly considered by the Sentencing 

Commission when setting the Sentencing Guideline ranges. Since the district judge 

conectly calculated and carefully reviewed the Guidelines range, he necessarily 

gave significant weight and consideration to the need to avoid unwarranted 

disparities. In particular, the Sentencing Commission has expressly concluded that 

in the case of fraud, loss serves as a measure of the seriousness of the offense and 

the defendant's relative culpability and is a principal factor in determining the 

offense level under § 2B 1.1. 

United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir. 2010) (internal quotation marks and 

citations omitted, alterations normalized). 

In cases where the guidelines range has been correctly calculated, sentencing comis are 

"entitled to rely on the Guidelines range in determining that there was no 'unwatrnnted disparity' 

between [the defendant] and other offenders convicted of similar frauds." Treadwell, 593 F.3d at 

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1011. Additionally, "sentencing disparity is only one factor a court considers in crafting an 

individualized sentence under§ 3553(a)." Id. at 1012. 

In this case, the Court reviewed the PSR and heard testimony from witnesses, as well as 

the arguments and submissions of the parties before determining Osanyinbi's guidelines range. 

Consistent with Treadwell, the Court is entitled to rely on that guidelines range in finding that 

there was no unwarranted discrepancy between Osanyinbi' s sentence and those of other defendants 

convicted of similar frauds. On this record, the Court concludes that Regan was not ineffective 

for failing to present additional nationwide evidence of similar fraud sentences. 

Osanyinbi also argues that he was the least culpable among the co-conspirators in this case 

and that his sentence is disproportionate relative to the sentences imposed on his co-defendants.4 

Section 3553(a)(6) is meant to '"promote national uniformity in sentencing rather than unifom1ity 

among co-defendants in the same case."' United States v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 

2007) (quoting United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006)). Relative culpability 

among co-defendants in the same case is more properly considered as part of the "nature and 

circumstances of the offense and the history and characteristics of the defendant," under § 

3553(a)(l). Saeteurn, 504 F.3d at 1181. Regan did argue, with both force and skill, that Osanyinbi 

was less culpable than his co-defendants and co-conspirators, as discussed in the following section. 

The Court considered those arguments, along with the other evidence in the record, in crafting 

Osanyinbi's sentence. 

4 Osanyinbi's 72-month sentence is, in fact, substantially lower than the sentences imposed on all but one of his codefendants and co-conspirators. Osanyinbi's co-defendants were sentenced to 108 months (Olywamuyiwa Abolad 

Olawoye), 65 months (Lateef Aina Animawun), 108 months (Oluwatobi Rueben Dehinbo), and 156 months 

(Emmanuel Oluwatosin Kazeem). Michael Oluwasegun Kazeem, the defendant in a separate but related case, was 

sentenced to 84 months. United States v. 1vlichae/ O/uwasegun Kazeem, Case No. l:16-cr-00062-AA. 

Page JO-OPINION & ORDER 
III. Minor Role Adjustment 

Osanyinbi contends that Regan failed to adequately argue for a minor role adjustment 

pursuant to U.S.S.G. § 3Bl.2. Under§ 3Bl.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 pmiicipant in the criminal activity." U.S.S.G. § 3Bl.2, cmt. (n.3(A)). The application of 

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

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

Commentary to § 3Bl .2 provides a non-exhaustive list of factors courts should consider when 

weighing a minor or minimal role adjustment. These include (1) the degree to which the defendant 

understood the scope and structure of the criminal activity; (2) the degree to which the defendant 

pmticipated in planning or organizing the criminal activity; (3) the degree to which the defendant 

exercised decision-making authority or influenced the exercise of decision making authority; ( 4) 

the nature and extent of the defendant's patiicipation in the commission of the criminal activity, 

including the acts the defendant performed and the responsibility and discretion the defendant had 

in performing those acts; and (5) the degree to which the defendant stood to benefit from the 

criminal activity. Id. 

In Osanyinbi's sentencing memorandum, Regan advocated strongly for a minor or minimal 

role adjustment. Def. Sentencing Mem., at 10-11. ECFNo. 149. Indeed, in her arguments Regan 

proceeded systematically through the Commentary's list of factors for§ 3Bl.2. In its sentencing 

memorandum, the Government offered a detailed opposition to a minor or minimal role adjustment 

because "an examination of his email/IM accounts and other evidence reveals a level of 

Page I I - OPINION & ORDER 
pmiicipation in the criminal activity that does not wa11'ant a role reduction." Gov. Sentencing 

Mem., at 15. ECF No. 142. 

During the sentencing hearing, the Govermnent's witnesses testified at length about 

Osanyinbi' s role in the criminal enterprise and the benefits he derived from his pmiicipation. 

Sentencing Tr., at 9-26, 33-40, 45-48, 53-55, 68-70. ECF No. 162. The Court also heard argument 

from both patiies on the issue of a minor role adjustment. Sentencing Tr., at 74-75, 87, 89. 

Although the Couti declined to apply a minor or minimal role adjustment for Osanyinbi, 

Regan argued for the reduction with skill and zeal. Accordingly, the Court concludes that Regan 

did not offer ineffective assistance with respect to seeking a minor or minimal role adjustment. 

IV. Certificate of Appealability 

A final order in a§ 2255 proceeding may not be appealed unless a judge issues a certific2te 

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 right." 28 U.S.C. § 

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

cetiificate of appealability under § 2253( c) is wa11'anted 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 farther." Id. at 483-84 (internal quotation marks and citation 

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

and so declines to issue a cetiificate of appealability .. 

Page 12 - OPINION & ORDER 
CONCLUSION 

For the reasons set fo1th above, Defendant's Motion under 28 U.S.C. § 2255, ECF No. 248, 

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 ce1tificate 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). 

'l l t1:i. 

It is so ORDERED and DATED thiso'_ day of February, 2019. 

United States District Judge 

Page 13 - OPINION & ORDER