United States v. Chibueze Nwafor ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50068
Plaintiff-Appellee, D.C. No. 2:11-cr-00791-ODW-1
v.
CHIBUEZE NWAFOR, AKA Cheeze, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Chibueze Nwafor appeals from the district court’s judgment and challenges
the 24-month sentence imposed upon revocation of supervised release. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Nwafor contends that, because the district court departed downward to a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
criminal history category of IV at his original sentencing, it should have used that
category when calculating the applicable Guidelines range during the instant
revocation proceedings. Because Nwafor did not raise this argument before the
district court, we review for plain error.1 See United States v. Pete, 819 F.3d 1121,
1135 (9th Cir. 2016).
The Guidelines require the district court to use at the revocation sentencing
the criminal history category it determined at the original sentencing. See U.S.S.G.
§ 7B1.4 cmt. n.1. The record shows that the district court correctly determined at
the original sentencing that Nwafor’s 11 criminal history points resulted in a pre-
departure criminal history category of V. But, even assuming the district court
should have used the post-departure category IV, Nwafor has not shown a
reasonable probability that he would have received a lower sentence absent the
error. See United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir. 2013). The
record reflects that, whether the court started with a Guidelines range of 30-37
months corresponding to a criminal history category of V, or a Guidelines range of
24-30 months corresponding to a criminal history category of IV, it would have
imposed the statutory maximum sentence of 24 months given its significant
1
We disagree with Nwafor’s assertion that we should exercise our discretion to
review this claim de novo. See United States v. Gonzalez-Aparicio, 663 F.3d 419,
426-27 (9th Cir. 2011) (noting that decision whether to refrain from applying plain
error standard of review is discretionary and declining to exercise its discretion to
disregard plain error standard).
2 20-50068
concerns about Nwafor’s poor performance on supervised release, which included
many months of missed restitution payments and a recent state conviction for
corporal injury to a spouse or cohabitant.
AFFIRMED.
3 20-50068