1

19-4046-cr

United States v. Okerayi

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 18th day of December, two thousand twenty.

PRESENT: JOSÉ A. CABRANES,

GERALD E. LYNCH,

SUSAN L. CARNEY,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee, 19-4046-cr

v.

HAKEEM OKERAYI,

Defendant-Appellant.

FOR DEFENDANT-APPELLANT: Elizabeth Latif, Law Offices of Elizabeth 

A. Latif PLLC, West Hartford, CT.
2

FOR APPELLEE: Erin E. Argo and Susan Corkery,

Assistant United States Attorneys, for Seth 

DuCharme, Acting United States 

Attorney, Eastern District of New York, 

Brooklyn, NY.

Appeal from a December 2, 2019 judgment of the United States District Court for the 

Eastern District of New York (Dora L. Irizarry, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

AFFIRMED.

Defendant-Appellant Hakeem Okerayi (“Okerayi”) appeals from a judgment of conviction 

in which he was sentenced to 72 months of imprisonment for conspiracy to import heroin. Okerayi

challenges his sentence as procedurally and substantively unreasonable. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 

“We review a sentence for procedural and substantive reasonableness under a deferential 

abuse-of-discretion standard.”1 We find a sentence to be procedurally unreasonable only where the 

district court “fails to calculate (or improperly calculates) the [U.S.] Sentencing Guidelines range, 

treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a 

sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.”2 We 

will vacate a sentence as substantively unreasonable only in “exceptional cases where the trial court’s 

decision cannot be located within the range of permissible decisions.”3 Generally, we find 

substantive unreasonableness only when a sentence is “shockingly high, shockingly low, or otherwise 

. . . would damage the administration of justice.”4

Okerayi argues first that applying the obstruction-of-justice enhancement under U.S.S.G. 

§ 3C1.1 was improper. We do not agree. Section 3C1.1 of the Guidelines provides for a two-level 

enhancement to the offense level if “(1) the defendant willfully obstructed or impeded, or attempted 

to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or 

sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the 

defendant's offense of conviction and any relevant conduct; or (B) a closely related offense[.]”5

1 United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (internal quotation marks omitted).

2 United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal quotation marks omitted).

3 United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks omitted).

4 United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (internal quotation marks omitted).

5 U.S.S.G. § 3C1.1.
3

Conduct constituting obstruction of justice includes “providing materially false information to a 

judge or magistrate judge” and “providing materially false information to a probation officer in 

respect to a presentence or other investigation for the court[.]”6 “On review of a district court’s 

decision to enhance a defendant’s sentence for obstruction of justice, we accept the court’s findings 

of facts unless they are clearly erroneous.”7 But “[w]e review de novo a ruling that the established facts 

constitute obstruction of justice, giving due deference to the district court’s application of the 

guidelines to the facts.”8

Okerayi submits that the enhancement cannot be justified because the District Court failed 

to make sufficient findings as to his intent. We have explained that it is “essential” that a court 

applying this enhancement make “a finding that the defendant had the specific intent to obstruct 

justice, i.e., that the defendant consciously acted with the purpose of obstructing justice.”9 When 

making a finding as to a defendant’s specific intent to obstruct justice, a district court may look to 

and rely on circumstantial evidence and all reasonable inferences that may be drawn from that 

evidence.10 But we have not read our precedent to require the use of magic words at sentencing.11

Here, the District Court made reasonably detailed findings in support of its conclusion to 

apply the obstruction-of-justice enhancement. As an initial matter, the District Court stated its 

grounds for applying the obstruction-of-justice enhancement and explicitly adopted the factual 

assertions made in the Presentence Report.12 The District Court specifically noted Okerayi’s

repeated “outright lies” to the mitigation specialist, that he had made “utter misrepresentations,” and 

the ways in which he had been “deceptive”. The District Court further made findings about 

Okerayi’s state of mind and motivation in making the statements at issue; specifically the District 

Court noted “everything that he said to that mitigation expert was intended to engender some sort 

of sympathy or some sort of consideration from the Court with respect to sentencing, to get some 

sort of leniency.”13 Together, all of these findings were sufficient to support the District Court’s 

determination as to Okerayi’s intent to obstruct justice, as is required for the enhancement under 

6 U.S.S.G. § 3C1.1, cmt. n.4(F), (H).

7 United States v. Pena, 751 F.3d 101, 105 (2d Cir. 2014) (internal quotation marks omitted).

8 Id. (internal quotation marks omitted).

9 United States v. Brown, 321 F.3d 347, 351 (2d Cir. 2003) (internal quotation marks omitted).

10 Id.

11 See Cavera, 550 F.3d at 193 (“Sentencing is a responsibility heavy enough without our adding 

formulaic or ritualized burdens.”).

12 See United States v. Thompson, 76 F.3d 442, 456 (2d Cir. 1996) (“It is sufficient [to permit appellate 

review of factual findings] if the court indicates, either at the sentencing hearing or in the written judgment, 

that it is adopting the recommendations in the PSR.”); compare United States v. Reed, 49 F.3d 895, 901 (2d Cir. 

1995) (holding that remand is appropriate where a court “neither clearly resolves the disputed issue nor 

explicitly relies on factual assertions made in a [presentence report]”).

13 Gov’t Public Br. 27 (quoting Gov’t Sealed App’x 141).
4

Section 3C1.1.14 Accordingly, we cannot conclude that the District Court committed procedural 

error. 

Okerayi next argues that the District Court committed procedural error by denying a threelevel downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. We do not 

agree. Section 3E1.1 of the Guidelines provides for a reduction to the offense level “if the defendant 

clearly demonstrates acceptance of responsibility for his offense[.]”15 We have explained that “[t]he 

sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility,” his 

or her determination in that regard is entitled to “great deference on review.”16 Determining whether 

there has been an acceptance of responsibility is a question of fact; the “district court’s 

determination in this regard should not be disturbed unless it is ‘without foundation.’”17

Here, in light of its application of a two-level enhancement for obstruction of justice, the 

District Court determined that Okerayi was not entitled to a reduction based on acceptance of 

responsibility.18 But the District Court did not rest its decision solely on that basis. Indeed, the 

District Court noted the contradiction between Okerayi’s guilty plea and his denials to the mitigation 

specialist concerning his offense conduct, and even observed that Okerayi appeared to still deny his 

conduct at sentencing. And the Application Notes to Section 3E1.1 of the Guidelines make clear

that “[a] defendant who falsely denies, or frivolously contests, relevant conduct that the court 

determines to be true has acted in a manner inconsistent with acceptance of responsibility....”19

14 See, e.g., United States v. McKay, 183 F.3d 89, 92 (2d Cir. 1999) (“Depending on its content and the 

context in which it is made, such a lie [to a probation officer] can be regarded as an attempt by the defendant 

to affect (1) the sentence on the instant offense, or (2) the prosecution and investigation of the criminal 

activity that is described in the lie or, (3) possibly both.”); United States v. Rodriguez, 943 F.2d 215, 217 (2d Cir. 

1991) (holding that a defendant's false statement to his probation officer “that he had no prior record, when 

in fact he had been arrested and convicted six times previously” constituted obstruction of justice under 

§ 3C1.1, that the statement was made willfully during the sentencing phase of the instant offense in that case, 

and was material because “[t]he presence or lack of a criminal history would affect the [defendant’s] 

sentence.”); compare United States v. Young, 811 F.3d 592, 604 (2d Cir. 2016) (although district court determined 

that “there was no need to ‘articulate [defendants] motivation’ in speaking falsely [to a probation officer]—

only to find that the statements ‘were materially false,’” holding that “there was such a need: material falsity is 

not enough to support application of the [obstruction of justice] enhancement” (emphasis in original)).

15 U.S.S.G. § 3E1.1.

16 United States v. Ortiz, 218 F.3d 107, 109 (2d Cir. 2000) (quoting U.S.S.G. § 3E1.1, cmt. n.5).

17 United States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994) (quoting United States v. Irabor, 894 F.2d 554, 

557 (2d Cir. 1990)).

18 This determination is consistent with the Application Notes to Section 3E1.1, which provides 

“Conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of 

Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” 

U.S.S.G. § 3E1.1, cmt. n.4.

19 U.S.S.G. § 3E1.1, cmt. n.1(a).
5

Accordingly, because the District Court’s determination that Okerayi did not accept responsibility 

for his actions was not “without foundation,” it will not be disturbed.20

Okerayi further argues that his sentence is substantively unreasonable in light of his history, 

personal characteristics, and health conditions. We conclude, however, that the District Court 

properly considered all these circumstances, in addition to noting that Okerayi’s wife was battling 

cancer, in imposing a modest downward variance from the Guidelines range of 78 to 97 months 

recommended by Probation at the sentencing hearing. On reviewing the record as a whole, we 

cannot conclude that Okerayi’s below-Guidelines sentence “cannot be located within the range of 

permissible decisions.”21

CONCLUSION

For the foregoing reasons, we AFFIRM the December 2, 2019 judgment of the District 

Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

20 See Ortiz, 218 F.3d at 108 (internal quotation marks omitted).

21 Cavera, 550 F.3d at 189.