United States of America v. Olaniyi Ojikutu

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 8, 2024
Decided February 20, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-1358
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OLANIYI OJIKUTU,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:18-CR-00818(10)
John Robert Blakey,
Judge.
O R D E R
Olaniyi Ojikutu pleaded guilty to wire fraud, see 18 U.S.C. § 1343, and was
sentenced to 88 months in prison. Ojikutu filed a notice of appeal, but his appointed
lawyer asserts that the appeal is frivolous and seeks to withdraw under Anders v.
California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of the appeal and
addresses issues that an appeal of this kind might be expected to involve. Because
counsel’s analysis appears thorough, we limit our review to the subjects that counsel
discusses, see United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014), as well as the issues
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-1358 Page 2
Ojikutu raises in his response to counsel’s motion, see Cir. R. 51(b). We grant the motion
and dismiss the appeal.
For more than three years, Ojikutu and his co-defendants used a variety of
internet scams to defraud victims into sending them large sums of money. In one such
romance scam, Ojikutu impersonated a jeweler who needed money to purchase
precious stones in Dubai; he then convinced the victim to wire him thousands of
dollars. To advance these scams, Ojikutu opened 25 bank accounts under multiple
names. Ojikutu and his co-defendants obtained nearly $3.5 million in fraudulent
proceeds, which they used for their own benefit, such as purchasing vehicles in the
United States to be resold in Nigeria.
Ojikutu was charged with four counts of wire fraud, but when federal agents
attempted to execute an arrest warrant in Chicago, he could not be located. Ojikutu,
who at the time was in New Jersey, assured a federal official that he would return to
Chicago the next day. Instead, he took a bus to Canada. Federal agents then issued a red
notice to the International Criminal Police Organization (Interpol). When Ojikutu later
was stopped for speeding in Canada, officers notified United States authorities. Ojikutu
voluntarily agreed to be turned over to United States authorities.
Ojikutu later pleaded guilty to wire fraud in violation of 18 U.S.C. § 1343. The
written plea agreement set forth an anticipated guideline range calculation of 63 to 78
months’ imprisonment based on a criminal history category of I and an offense level of
26. Ojikutu acknowledged that these anticipated guidelines could change based on the
government’s further review of the facts or applicable law.
At sentencing, the government sought, and the district court adopted, an
additional two-level enhancement to Ojikutu’s offense level for obstruction of justice
because he fled to Canada. See U.S.S.G. § 3C1.1. The enhancement had the effect of
increasing his calculated guideline range to 78 to 98 months. Ojikutu did not object to
the enhancement and revised guideline range. After considering mitigating and
aggravating factors, the district court sentenced Ojikutu to 88 months’ imprisonment
and 3 years’ supervised release, plus restitution and a mandatory special assessment.
Counsel first tells us that he consulted with Ojikutu and confirmed that Ojikutu
wishes to challenge only his sentence, not his plea. Counsel therefore properly forgoes
discussing whether the plea was valid. United States v. Konczak, 683 F.3d 348, 349 (7th
Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Even so, Ojikutu
equivocates in his Rule 51(b) response, stating that “if he had known about the [two-

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No. 23-1358 Page 3
point] enhancement for obstruction there’s no change of plea.” In any event,
challenging the plea would be frivolous because the record shows that the court
complied with Rule 11 of the Federal Rules of Criminal Procedure.
Counsel next considers whether Ojikutu could challenge the two-point
enhancement to his offense level for obstructing justice when he fled to Canada after his
attempted arrest. See U.S.S.G. § 3C1.1. But counsel correctly determines that this
argument would be frivolous. Ojikutu waived any challenge to that enhancement when
his counsel confirmed on the record that there were no objections to the presentence
investigation report, see United States v. Picardi, 950 F.3d 469, 474 (7th Cir. 2020), and
regardless, Ojikutu’s flight to Canada impeded and made the government’s
investigation significantly more costly, see United States v. Cisneros, 846 F.3d 972, 975–76
(7th Cir. 2017).
Further, counsel considers and rightly rejects challenging the substantive
reasonableness of Ojikutu’s sentence. We presume that a sentence within the applicable
guidelines range is reasonable. See United States v. Cunningham, 883 F.3d 690, 701
(7th Cir. 2018). Counsel does not identify a reason to challenge that presumption, and
we discern none. Ojikutu asserts that he was sentenced more severely than four of his
co-defendants—creating the kind of “unwarranted sentence disparity” that 18 U.S.C.
§ 3553(a) discourages. But differences in sentences that result from correct application of
the guidelines are not unwarranted. United States v. Sanchez, 989 F.3d 523, 540 (7th Cir.
2021). Moreover, the court appropriately weighed the nature and circumstances of the
offense (a financial scheme that targeted victims who were particularly vulnerable) and
Ojikutu’s personal characteristics (noting his lack of criminal history, remorse, and
efforts at rehabilitation). See id. at 701–02.
Finally, to the extent that Ojikutu wishes to challenge his sentence based on
ineffective assistance of counsel, such an argument is best saved for collateral review,
where an evidentiary foundation can be developed. See Massaro v. United States, 538 U.S.
500, 503–05 (2003).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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