BOBBY BOYE a/k/a Bobby Ajiboye a/k/a Bobby Aji-Boye v. UNITED STATES OF AMERICA Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3662
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BOBBY BOYE
a/k/a Bobby Ajiboye
a/k/a Bobby Aji-Boye,
Appellant
v.
UNITED STATES OF AMERICA
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Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-16-cv-06024)
District Judge: Hon. Freda L. Wolfson
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Submitted under Third Circuit L.A.R. 34.1(a)
November 22, 2019
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Before: CHAGARES, MATEY, and FUENTES, Circuit Judges.
(Opinion filed: April 22, 2020)
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OPINION*
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* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.

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FUENTES, Circuit Judge.
Appellant Bobby Boye pled guilty to one count of conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1349 for fraudulent representations made in his role as a
legal advisor. Boye now claims he was deprived effective assistance of counsel during
plea negotiations because counsel failed to advise him that the amount of “loss” caused
by his fraud should be offset by the value of the work he provided to the victims. For the
reasons that follow, we will affirm the District Court’s denial of relief.
I.
Following a period of incarceration in the California State Prison System, Boye
moved to New Jersey. Shortly after, he was admitted to the practice of law in New York
State. Boye was then hired by the Kingdom of Norway to serve as an international
petroleum legal advisor for the Ministry of Finance of Timor-Leste. In his role as legal
advisor, Boye served as a member of a three person committee responsible for evaluating
bids solicited by Timor-Leste for a multi-million dollar contract to provide legal and tax
accounting services. Ultimately, a company called Opus & Best Law Services LLC
(“Opus & Best”) was awarded the contract.1 Opus & Best appeared to be composed of
several lawyers and other professionals, but in reality Boye was the sole member. Boye
authored fraudulent documents and created a misleading website to support the bid. In
order to profit from his scheme, Boye needed to make it appear as if Opus & Best
completed the work it was hired to do. Accordingly, Boye retained outside legal and tax
1 App. 1423-49.

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professionals, and Timor-Leste paid Opus & Best—and unbeknownst to it, Boye—$3.5
million.
Based on his fraudulent conduct, Boye pled guilty to violating § 1349. As relevant
here, the applicable United States Sentencing Guideline is § 2B1.1. U.S.S.G. § 2B1.1
sets a base offense level of 7 for Boye’s crime and provides that the offense level be
increased depending on the monetary loss caused by the crime.2 Boye stipulated that the
“aggregate loss” caused by his fraudulent behavior was “greater than $2,500,000 but not
more than $7,000,000,” increasing his offense level to 25 under the Guidelines.3 After
various upward and downward adjustments, Boye stipulated to a total Guidelines offense
level of 24. Based on a criminal history category of III and an offense level of 24, the
Government calculated an advisory Guidelines range of 63 to 78 months. In keeping
with Boye’s plea agreement and the stipulations between the parties, the District Court
sentenced Boye to 72 months’ imprisonment. Boye filed a direct appeal to this Court,
and we granted the Government’s motion to enforce an appellate waiver contained in the
plea agreement and dismissed the appeal.
Subsequently, Boye moved for relief from his sentence under 28 U.S.C. § 2255,
alleging ineffective assistance of counsel. The District Court denied Boye’s motion.
Boye then filed a Notice of Appeal and Request for a Certificate of Appealability with
2 U.S. Sentencing Guidelines Manual § 2B1.1 (U.S. Sentencing Comm’n 2014)
(hereinafter “U.S.S.G.”). The base offense level is 7 because the substantive offense of
wire fraud has a statutory maximum term of imprisonment of 20 years or more. See 18
U.S.C. § 1343.
3 App. 1452.

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this Court. We granted the request “as to [Boye’s] claim that counsel performed
ineffectively by failing to advise him during plea negotiations that the amount of loss
caused by the fraud should be offset by the value of the services that Boye provided.”4
II.
The District Court exercised jurisdiction over Boye’s petition for post-conviction
relief under 28 U.S.C. § 2255. We exercise jurisdiction over this appeal under 28 U.S.C.
§§ 1291 and 2253. On appeal of an order denying a § 2255 motion, we review the
District Court’s legal conclusions de novo and factual findings for clear error.5
III.
Boye argues that his trial counsel performed ineffectively by failing to advise him
during plea negotiations that the amount of loss caused by his fraud should be offset by
the value of the services he provided. Accordingly, he contends that he is entitled to have
his sentence vacated and proceed with a new sentencing hearing using a lower loss
amount.
Under Strickland v. Washington, to succeed on an ineffective assistance claim,
Boye must show that (1) the errors by his attorney were so serious that his counsel was
not functioning at the level guaranteed by the Sixth Amendment, and (2) his counsel’s
deficient performance prejudiced his defense.6 It is not enough for Boye to show that any
errors by counsel “had some conceivable effect on the outcome of the proceeding.”7
4 App. 18.
5 United States v. Green, 898 F.3d 315, 317 (3d Cir. 2018).
6 Strickland v. Washington, 466 U.S. 668, 687 (1984).
7 Id. at 693.

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Instead, the appropriate test for prejudice is whether “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.”8
We conclude that Boye cannot show that his attorney’s allegedly deficient
performance prejudiced him. Boye failed to demonstrate that but for his counsel’s
purported errors, he would have gone to trial, received a more favorable plea deal, or
have been better off pleading guilty without the benefit of a plea agreement.
Accordingly, we need not decide whether Boye’s counsel performed deficiently.9
Boye argues that by being advised to stipulate to a loss amount “greater than
$2,500,000 but not more than $7,000,000,” his offense level was increased from 6 to
24.10 However, he fails to account for the fact that even if a credit for services rendered
was taken from the loss amount, he would have to show enough credit against his losses
to lower the loss amount below $2,500,000 in order to secure a lower offense level under
the U.S.S.G. § 2B1.1 loss table.
Moreover, the Government stresses that Boye’s loss amount did not include other
related costs, including (i) his $130,000 salary, (ii) the additional $250,000 he attempted
to defraud Timor-Leste out of, or (iii) the $979,000 in expenses Timor-Leste spent
8 Id. at 694.
9 Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.”).
10 Boye erroneously asserts in his briefs that his base offense level was 6. As the plea
agreement indicated, Boye’s base offense level was 7 because the substantive offense of
wire fraud has a statutory maximum term of imprisonment of 20 years or more. U.S.S.G.
§ 2B1.1(a)(1).

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uncovering the fraud. If Boye’s loss amount included these costs alone, it would have
totaled $1,359,000, resulting in an offense level of 21. Had the loss amount included the
above costs plus the over $850,000 in tax proceeds Boye diverted, which the Probation
Office accounted for in its loss calculation, Boye’s offense level would have been 23. In
no scenario would Boye’s loss amount be zero, as he contends, and he has failed to set
forth the purported off-set amount to show that his sentence would have been materially
impacted, or that he would have been on stronger plea bargaining grounds. Additionally,
any potential lower offense level could easily be negated by other benefits that Boye
received in the agreed upon plea deal.
Boye benefitted from the plea agreement that was struck in several respects. First,
the plea agreement allowed Boye to avoid certain enhancements and motions for upward
departures and granted other downward adjustments. Second, by agreeing to plead
guilty, the Government dismissed six counts and did not initiate any other charges against
Boye related to his scheme. Finally, the plea agreement capped Boye’s restitution
amount, which otherwise could have been significantly higher. Ultimately, Boye was
sentenced to a term within the stipulated Guidelines range.
These facts demonstrate that there is no reasonable probability that but for the
supposedly deficient performance of Boye’s counsel, Boye would have been better off.
Accordingly, it was not error for the District Court to conclude that Boye failed to show

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any prejudice from the alleged failure of counsel to argue for a loss amount offset during
plea negotiations.11
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
11 We decline to address Boye’s arguments that are outside of the scope of the issued
certificate of appealability, including his claims for ineffectiveness of counsel at
sentencing and in negotiating the restitution amount. 3d Cir. L.A.R. 22.1(b); see also
Miller v. Dragovich, 311 F.3d 574, 577 (3d Cir. 2002) (refusing to address an argument
that was outside the scope of the certificate of appealability).

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