United States v. Nnanna ( 1993 )


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  •               IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    __________________
    No. 93-2219
    Conference Calendar
    __________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CLIFF NNANNA,
    a/k/a JOHNIE D. TRAVIS ETC.,
    Defendant-Appellant.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Southern District of Texas
    - - - - - - - - - -
    (November 1, 1993)
    Before POLITZ, Chief Judge, and SMITH and WIENER, Circuit Judges.
    PER CURIAM:
    Ochuru Ochuru, a/k/a Cliff Nnanna (Nnanna), has appealed his
    sentence following his guilty plea conviction for bank fraud.
    Nnanna, a Nigerian national, was involved in a wide-ranging
    scheme in which he and other Nigerian males opened fraudulent
    bank accounts into which they deposited stolen corporate checks
    for large sums.   Nnanna withdrew approximately $90,000 from these
    accounts before he was arrested.
    Nnanna filed a number of objections to the Pre-sentence
    Investigative Report (PSR), including several objections to the
    probation officer's calculation of the amount of intended loss.
    The probation officer accepted several of Nnanna's objections and
    revised the amount of the intended loss downward, with the result
    No. 93-2219
    -2-
    that Nnanna's sentence range under the guidelines was reduced
    from 21-27 months to 18-24 months.    The probation officer
    rejected other objections as not supported by the record and
    noted that most of the rejected objections were irrelevant to the
    computation of Nnanna's sentence.    The substantive objections
    that the probation officer rejected included objections to the
    consideration of conduct for which Nnanna had been convicted on
    state charges, the recommendation of a two-level downward
    adjustment for acceptance of responsibility instead of a three-
    level downward adjustment, and the calculation of the termination
    date of Nnanna's prior probation.    The probation officer revised
    his original recommendation of a 27-month sentence downward and
    recommended that Nnanna receive a 24-month sentence.
    At sentencing, the district court stated, "[a]side from the
    corrections already made, and a number of them were ministerial,
    but aside [sic] the corrections already made in the presentence
    investigation report, specifically the amended report, the
    matters not acted on in the defense motion are overruled.     The
    PSI is adopted in its current form."
    Nnanna argues on appeal that the district court violated
    Fed. R. Crim. P. 32(c)(3)(D) because it did not "clearly rule" on
    each of his written objections to the Pre-Sentence Investigation
    Report (PSR).    The district court complied with Rule 32 when it
    rejected Nnanna's objections and specifically adopted the amended
    PSR.    See United States v. Mora, 
    994 F.2d 1129
    , 1141 (5th Cir.
    1993) (adoption of findings of PSR sufficient factual
    determination of quantity of drugs under Fed. R. Crim. P. 32).
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    -3-
    Nnanna also urges on appeal that he should have received a
    lower sentence because he is an alien.     After the district court
    had adopted the PSR, Nnanna's attorney requested that he be
    sentenced at the lower end of the guidelines because, as an alien
    under an order of deportation, he was ineligible for release to
    home custody or a half-way house.    The attorney also urged that a
    lower sentence was appropriate due to the lack of federal prison
    space.   The district court rejected his argument and sentenced
    Nnanna to a term of 24 months imprisonment, the maximum
    guidelines sentence.
    Nnanna suggests that the district court abused its
    discretion when it imposed the maximum sentence under the
    guidelines.   He argues that this has the effect of an upward
    departure because he will serve his sentence under more severe
    conditions than a citizen of this country.
    "Review of sentences imposed under the guidelines is limited
    to a determination whether the sentence was imposed in violation
    of law, as a result of an incorrect application of the sentencing
    guidelines, or was outside of the applicable guideline range and
    was unreasonable."     United States v. Matovsky, 
    935 F.2d 719
    , 721
    (5th Cir. 1991) (citing 18 U.S.C. § 3742(e)).    This Court will
    not review the district court's refusal to depart from the
    guidelines unless the refusal was in violation of the law.
    United States v. Mitchell, 
    964 F.2d 454
    , 462 (5th Cir. 1992).
    The guidelines do not specifically address alienage.
    U.S.S.G. § 5H1.10, p.s., provides that national origin is
    irrelevant to the sentencing court's determination.    Section
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    5H1.10 is not dispositive of the issue, because "alienage" and
    "national origin" are not synonymous.
    The Court declines to consider Nnanna's argument to the
    extent that his appeal may be construed to allege that his
    sentence within the guidelines is too harsh due to his alien
    status.   
    Mitchell, 964 F.2d at 462
    .
    Nnanna's appeal may also be construed to allege that his
    sentence was imposed in violation of law because the district
    court should have departed downward due to his alien status.
    Collateral consequences, such as the likelihood of deportation or
    ineligibility for more lenient conditions of imprisonment, that
    an alien may incur following a federal conviction are not a basis
    for downward departure.   See United States v. Restrepo, 
    999 F.2d 640
    , 644 (2nd Cir. 1993), petition for cert filed, (U.S. Sept.
    13, 1993) (No. 93-5968); United States v. Alverez-Cardenas, 
    902 F.2d 734
    , 737 (9th Cir. 1990); United States v. Soto, 
    918 F.2d 882
    , 884-85 (10th Cir. 1990).
    AFFIRMED.