United States v. Alberic Agodio , 670 F. App'x 130 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4135
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERIC OKOU AGODIO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:15-cr-00061-JKB-1)
Submitted: October 31, 2016 Decided: November 3, 2016
Before TRAXLER, DUNCAN, and WYNN, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Murray Kamionski, LAW OFFICE OF MURRAY KAMIONSKI, Baltimore,
Maryland, for Appellant. Jefferson McClure Gray, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alberic Okou Agodio appeals the 61-month sentence imposed
following his guilty plea to one count of conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349 (2012); one count
of wire fraud affecting a financial institution, in violation of
18 U.S.C. § 1343 (2012); and one count of aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1), (c)(5) (2012).
The Government has moved to dismiss Agodio’s appeal based upon a
waiver of appellate rights in his plea agreement.
We conclude that the appeal waiver contained in Agodio’s
plea agreement is valid, as he entered it knowingly and
intelligently. See United States v. Manigan, 592 F.3d 621, 627
(4th Cir. 2010). Moreover, Agodio’s appeal of his sentence is
barred by his waiver of appellate rights, except for his claim
that his sentence was impermissibly based on his nationality or
race. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992). Accordingly, we grant the motion to dismiss in part and
dismiss the appeal of the claims not based on nationality or
race. We also deny the motion to dismiss in part on the ground
that Agodio’s claim of national or racial bias falls outside the
scope of the waiver provision; however, our review convinces us
to affirm the sentence.
Turning to the nonwaived issue, Agodio, a West African
immigrant who is black, contends that his sentence was
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impermissibly based on his nationality or race. In support of
this contention, Agodio points to the lesser sentences received
by his coconspirators, who are both white. * We find Agodio’s
argument unpersuasive.
The district court did not reference Agodio’s nationality
or race at the sentencing hearing, and only commented on
Agodio’s status as an immigrant in response to defense counsel’s
and Agodio’s arguments on that subject in mitigation. Indeed,
the district court stated that it was imposing a lesser sentence
because Agodio was a deportable alien who would likely serve his
sentence in a higher security prison than others convicted of
similar crimes. See United States v. DeBeir, 186 F.3d 561,
569-71 (4th Cir. 1999) (recognizing that district court may take
into account adverse impact on incarceration caused by status as
deportable alien). If not for Agodio’s status as a deportable
alien, the district noted that it would have imposed a lengthier
sentence.
Furthermore, the district court considered the sentences
imposed on Agodio’s coconspirators in fashioning his sentence
and thoroughly explained its reasoning for arriving at a
*Agodio also argues that he was sentenced as a career
offender under the Sentencing Guidelines and that the career
offender provision has a disproportionate impact on black males.
However, a review of the record reveals that Agodio was not
sentenced under the career offender provision.
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61-month sentence. In particular, the district court stressed
that Agodio exhibited a pattern of dishonesty, both before and
during the underlying offenses, and that Agodio’s actions grew
the fraud scheme, increasing the scope and degree of harm to the
victims. Contrary to Agodio’s protestation, the district court
was not required to impose a sentence that was identical to
those of his coconspirators under 18 U.S.C. § 3553(a)(6) (2012).
See United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007)
(“Subsection 3553(a)(6) is concerned with national disparities
among the many defendants with similar criminal backgrounds
convicted of similar criminal conduct.”).
For these reasons, we dismiss in part and affirm in part.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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