NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 10

- 3287

________________ UNITED STATES OF AMERICA

v. LASSISSI AFOLABI , a/k/a Bogard, a/k/a Fovi Lassissi Afolabi,

Appellant

________________ On Appeal from the United States District Court For the District of New Jersey (Crim. No. 2:07

- cr - 00785

- 002 ) District Judge: Honorable Jose L. Linares

________________ Subm itted Under Third Circuit L.A.R. 34.1(a)

October 6 , 2011 BEFORE: McKEE, Chief Judge , and FUENTES and GREENBERG, Circuit Judges

(Opinion Filed: December 16, 2011)

________________ OPINION OF THE COURT

________________ FUENTES, Circuit Judge. Lassissi Af

olabi appeals from the criminal judgment entered by the United States District Court for the District of New Jersey. He argues that the g overnment breached its2

plea agreement with him and that the District Court improperly calculated his advisory Sentenci ng Guidelines offense level

. For the reasons set forth below, we affirm. 1
I. Because we write for the parties, we discuss the facts only to the extent necessary for the resolution of the issues raised on appeal. From October 2002 through September 2007, Afolabi conspired with his wife, Akouavi Afolabi, and others to commit forced labor of more than 20 girls , aged 10 to 19

. They recruited the girls from impoverished villages in Togo and Ghana and brought them to the United States with fraudulently obtain ed visas. The girls were required to work in hair

- braiding salons for up to 14 hours per day, six or seven days a week , and to reli nquish all of their earnings

. The y were beaten and psychologically and sexually abused. Pursuant to a plea agreement, Afol abi pled guilty to one count of Conspiracy to Commit Forced Labor, Conspiracy to Commit Trafficking with Respect to Forced Labor, and Conspiracy to Commit Document Servitude, in violation of 18 U.S.C. § 371; one count of aggravated sexual abuse, in violati on of 18 U.S.C. § 1589; and one count of Transportation of a Minor with Intent to Engage in Criminal Sexual Activity, in violation of 18 U.S.C. § 2423(b). The parties agreed that Afolabi’s total Sentencing Guidelines offense level was 32 , after including a “downward adjustment of 2 levels for acceptance of responsibility

. . . if Lassissi Afolabi’s acceptance of responsibility contin ues through the date of sentencing .” (SA22). The plea agreement further recognized that Afolabi’s

1 We have jurisdiction over Afolabi’s timely appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.3

sentence was within the s ole discretion of the District Judge and that the government was not bound by any stipulation to which it received credible contrary evidence prior to sentencing. After signing the plea agreement and admitting to his culpable conduct , Afolabi
testified as a defense witness at the trial of his wife and co

- defendant, Akouavi Afolabi. On direct examination, Afolabi contradicted certain admissions in his plea colloquy, denying that his victims were forced to work or to turn over their tips. Although Afolabi

r ecanted these statements on cross examination, the government took the position that Afolabi’s testimony demonstrated that his acceptance of responsibility had not continued through his sentencing date

. At a sentencing hearing on July 12, 2010, the Distri ct Court noted that the parties’ stipulated calculation of Afolabi’s Guidelines offense level “differ[ed] severely” from the probation department’s calculat ions in its pre sentence r eport, which had arrived at a total offense level of 46. (A32). The Court therefore asked each party to speak on the matter. The government supported the plea agreement’s calculation with the exception of its downward adjustment for Afolabi’s acceptance of responsibility. Afolabi agreed with the government except to the exten t that the g overnment had argued that he should no longer receive the benefit of his acceptance of responsibility. U ltimately, however, the Court
concluded th e parties’ calculation was “flawed

. ” (A48)

. B y the Court’s calculation

— which continued to give Afolabi the benefit of his acceptance of responsibility

— Afolabi’s total offense level was 40. At a second hearing on July 22, 2010, the Court revised its calculation to 38 “in an exercise of caution” and in light of both parties’4

argume nts that a 2

- level increase , applicable where a sexual abuse victim was in the “custody, care, or supervisory control of the defendant,” U.S.S.G. § 2A3.1(b)(3), should not apply unless the victim were a minor. (A23). Afolabi was sentenced within this Guidelines range to 29 2 months’ imprisonment.
II. On appeal, Afolabi argues that the g overnment breached its plea agreement with
him by “rais[ing] issue with the [C] ourt about the calculation of the appropriate base level in the first of the sentencing hearings

. ” (Appellant’s Br. at 2). Because Afolabi did not raise this o bjection before the D istrict C ourt, our review is for plain error. See Puckett v. United States , 129 S. Ct. 1423 , 1429 (2009) , abrogating United States v. Rivera, 357 F.3d 290 , 293

- 94 (3d Cir. 2004)

. Under plain error review , a defendant may prevail only if (1) there was an error that was (2) clear and (3) affected his substantial rights. Id. If th ese three requirements are met, the C ourt of A ppeals has discretion to remedy the error
if it “ seriously affe cts the fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotations and alterations omitted). Upon review of the transcript, we conclude that there was no plain error . At the first sentencing hearing, the g overnment argued that the Guidelines calculation stipulated in the plea agreement was accurate with the exception of the downward adjustment for acceptance of responsibility. The government was entitled to contest this adjustment because of Afolabi’s trial testimony and the terms of the plea agreement. In any event, the government’s position was not adopted by the District Court. Althou gh the government also conceded, in response to the Court’s questioning, that alternative5

calculations were also supportable under the G uidelines , the government maintained that the parties’ calculations in the plea agreement were most appropriate. After the government spoke, d efense counsel represented that that “the defendant agrees with the [g] overnment’s calculation.

. . . The only th ing that we disagree on is whether or not there was obstruction or acceptance

. . . .” (A45).
I II . Afolabi also argues that the District Court made a procedural error in calculating
hi s advisory Guidelines offense level

. We review the District Court’s c alculation of the Guidelines range for abuse of discretion. United States v. Fumo , --- F.3d

---- , 2011 WL 3672774, at *16 (3d Cir. Aug. 23, 2011), as amended (Sept. 15, 2011) (citing United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) )

. “F or example, an abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. (quoting Tomko , 562 F.3d at 567

- 68 ). At the July 22, 2010 hearing, the Court explained h ow it had r eached an offense level of 38. The Court applied U.S.S.G. § 2H4.1 , which carries a base offense level of 22, to the group of Afolabi’s forced labor and sexual abuse convictions. U nder § 2H4.1(b)(4), which deals with situations where there was another felony committed during the commission or in connection with the forced labor, the Court compared the
calculation for forced labor with the calculation for criminal sexual abuse. T he Court determined that Afolabi’s base level for sexual abuse was 30 pursuant U.S.S.G. § 2A3.1

. To this base, the Court added 4 levels b ecause the conduct involved forced rape, arriving at an offense level of 34. S ee U.S.S.G. § 2A3.1(b)(1)

. T he refore, the Court added6

2 levels to arrive at an offense level of 36 for th e group under § 2H4.1 (b)(4)(B) . The
Court next added two 2

- level enhancement s because of the large number of vulnerable victims involved, arriving at a total offense level of 40. U.S.S.G. § 3A1.1(b) (1)

- (2). Considering the grouping of the counts and the much lower Guidelines level applicable to Afolabi’s conviction for T ransportation of a M inor with I ntent to E ngage in C riminal
S exual A ctivity , the Court did not include a multiple

- count adjustment. Finally, the Court gave Afolabi a 2

- level decrease for acceptance of responsibility, over the government’s objection, arriving at a final calculation of 38.
Afolabi ’s argu ment that the District Court applied the wrong Guidelines section is belied by the record. Afolabi confuses the District Court’s calculatio ns under § 2H4.1(b)(4) (B) , related to his sexual abuse of the girls he had forced to work, with a
calculation of his Guidelines offense level for conviction for T ransportation of a M inor with I ntent to E ngage in C riminal S exual A ctivity

. Therefore , Afolab i fails to identify
any procedural error in the District Court’s calculation of his advi sory Guidelines offense
range. I V. For the foregoing reasons, we affirm Afolabi’s sentence.