USA v. Bolaji Owolabi

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10821
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOLAJI KAZEEM OWOLABI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cr-00360-JPB-RDC-1
____________________
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2 Opinion of the Court 23-10821
Before R OSENBAUM , GRANT, and B RASHER , Circuit Judges.
PER CURIAM:
A forty-eight-count indictment charged Bolaji Kazeem
Owolabi with sixteen counts of wire fraud, sixteen counts of aggra-
vated identify theft, and twelve counts of theft of government
funds. See 18 U.S.C. §§ 641, 1028A, 1343. Owolabi pleaded guilty to
one count of wire fraud and one count of aggravated identity theft.
At the sentencing phase, the proper calculation of the United States
Sentencing Guidelines range was in dispute. Owolabi contended
that the guidelines range was 81–95 months’ imprisonment. The
district court arrived at a guidelines range of 132–159 months’ im-
prisonment and imposed a middle-of-the-guidelines sentence of
144 months’ imprisonment. The district court also ordered three
years of supervised release and restitution of $2,063,721.
All of Owolabi’s arguments on appeal attack the district
court’s guidelines calculation. But we need not address those argu-
ments. Owolabi’s burden on appeal is not only to prove that the
district court committed an error but also to establish that any er-
ror was not harmless. See Fed. R. Crim. P. 52(a). In the sentencing
context, that means Owolabi must establish either that (1) the dis-
trict court would have imposed a lesser sentence had it agreed with
Owolabi’s guidelines calculation or (2) the 144-month sentence is
unlawful if Owolabi’s guidelines calculation is correct. See United
States v. Keene, 470 F.3d 1347, 1348–50 (11th Cir. 2006).
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23-10821 Opinion of the Court 3
Option one is off the table. The district court said that it
“would have still sentenced [Owolabi] to the 144 months, even if
[it] had ruled differently as to” Owolabi’s guidelines arguments.
Option two is either forfeited or waived. Owolabi makes no
argument in his opening brief that his 144-month sentence is pro-
cedurally or substantively unreasonable under his proposed guide-
lines range. He has not filed a reply brief, so the government’s con-
tention that any error was harmless has gone entirely unrebutted.
Even if Owolabi tried to contest that point, he’d almost certainly
lose. The district court considered 144 months’ imprisonment rea-
sonable under 18 U.S.C. § 3553(a), no matter the guidelines recom-
mendation, because of Owolabi’s repeated misconduct, the sever-
ity of the harm his offenses caused others, and the lack of remorse
Owolabi displayed during his allocution. That explanation likely
rendered the sentence procedurally reasonable. See United States v.
Grushko, 50 F.4th 1, 17–18 (11th Cir. 2022). And district courts’ dis-
cretion to weigh the Section 3553(a) factors makes it unlikely that
we would have found this sentence substantively unreasonable.
See, e.g., United States v. Early, 686 F.3d 1219, 1221–23 (11th Cir.
2012) (affirming 113-month upward variance).
Owolabi has failed to show that any error (if one occurred)
was not harmless. The district court’s judgment is AFFIRMED.
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