No. 22-3601 United States of America v. Okwuchukwu Jidoefor

United States Court of Appeals
For the Eighth Circuit
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No. 22-3235
No. 22-3244
No. 22-3601
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Okwuchukwu Jidoefor
lllllllllllllllllllllDefendant - Appellant
___________________________
Appeals from United States District Court
for the District of Minnesota
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Submitted: October 17, 2023
Filed: April 10, 2024
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Before SMITH, Chief Judge,1 LOKEN and COLLOTON,2 Circuit Judges.
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LOKEN, Circuit Judge
1Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).
2Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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Okwuchukwu Jidoefor, a Nigerian citizen, pleaded guilty to mail fraud in
violation of 18 U.S.C. § 1341. In a paragraph of the written plea agreement entitled
Collateral Consequences, the U.S. Attorney’s Office for the District of Minnesota
agreed “to send a letter to the immigration authorities outlining [Jidoefor’s]
cooperation in prior cases” and to file a copy of the letter under seal at the change-of-
plea hearing. The district court accepted the plea. After the sentencing hearing, the
lead Assistant U.S. Attorney (AUSA) sent a letter to U.S. immigration authorities
detailing Jidoefor’s past cooperation with law enforcement, as the plea agreement
required (the October 13 letter). After the AUSA retired, an internal mistake in the
U.S. Attorney’s Office resulted in the U.S. Attorney for the District of Minnesota
sending a second letter stating the first letter was not the Office’s official position.
The mistake was soon discovered, and the U.S. Attorney sent a third letter retracting
the second letter and reaffirming the October 13 letter.
Jidoefor moved to remedy the government’s breach of the plea agreement. The
government admitted the second letter was a breach. The district court3 denied the
motion, finding the government’s third letter was an adequate remedy. Jidoefor
appeals, arguing the district court erred in not providing a remedy. He separately
appeals the district court’s sentence and its order for restitution. We consolidated the
three appeals and will discuss them separately in this opinion as they turn on different
facts and legal issues. We affirm.
I. The Breach of Plea Agreement Issue.
In 2012, Jidoefor was convicted of bank fraud for his role in a multi-million
dollar scheme. He cooperated with the government’s prosecution of several other
participants and was sentenced to time served. In August 2017, while serving his
3The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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five-year term of supervised release for that conviction, Jidoefor was again indicted
for fraud in the District of Minnesota. Two counts of a twelve-count superseding
indictment against Jidoefor and five others charged him with conspiracy to commit
mail and wire fraud and a substantive count of mail fraud. The indictment included
forfeiture allegations.
After indictment, Jidoefor failed to appear and a bench warrant issued for his
arrest. He was apprehended in New Jersey in June 2020, living under an alias. Back
in Minnesota, he rejected multiple plea offers by the prosecution that did not include
a government promise to send a letter to immigration authorities that he considered
“central” to his efforts to prevent removal.4 At a June 14, 2022 pretrial hearing, the
government agreed to write a letter; Jidoefor agreed to plead guilty to the substantive
fraud charge and to violating a condition of supervised release; the government
agreed to dismiss the conspiracy charge; and the parties agreed to recommend a
sentence of time served for both the mail fraud offense and the violation of supervised
release. At that hearing, the district court made sure Jidoefor understood that the U.S.
Attorney cannot tell immigration authorities what to do, as the plea agreement
expressly stated. A copy of the promised letter was filed with the court.
The district court held an evidentiary sentencing hearing on October 13, 2022.
At its conclusion, the court imposed concurrent prison sentences of time served (27
months) on both counts, with no supervised release to follow, and ordered Jidoefor
to pay mandatory restitution of $22,028.02 based on the total loss to a fraud victim,
Nationwide Insurance Company (Nationwide). Later that day, AUSA David
MacLaughlin -- the lead prosecutor -- sent the agreed October 13 letter to
immigration authorities detailing Jidoefor’s past cooperation with law enforcement
4Jidoefor emigrated to the United States on a temporary visa, overstayed, and
was ordered removed in 2012. The removal order was subsequently stayed but
reinstated in 2018 and active at the time of the pretrial hearing.
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and stating that his “fear of retribution in the event of his removal to Nigeria is not
objectively unreasonable.” The letter did not state that it was sent pursuant to a plea
agreement. Two weeks later, AUSA MacLaughlin retired.
After sentencing, Jidoefor was transferred to the custody of Immigration and
Customs Enforcement (ICE), a division of the Department of Homeland Security
(DHS), pending removal proceedings. In mid-November, ICE denied Jidoefor’s
application to stay those proceedings. He filed motions to stay removal and reopen
the removal proceedings with the Board of Immigration Appeals (BIA). Meanwhile,
DHS’s Civil Division chief in Minnesota contacted the U.S. Attorney’s Office
regarding the October 13 letter because of other pending civil litigation with Jidoefor.
Unaware of Jidoefor’s plea agreement to the contrary, the U.S. Attorney’s Office
management incorrectly concluded the now-retired AUSA sent the letter “in his
personal capacity.” On November 14, U.S. Attorney Luger responded to the DHS
inquiry with a letter stating:
I write concerning the October 13, 2022 letter written to your office by
former AUSA David MacLaughlin. In the letter, Mr. MacLaughlin
described his understanding of Mr. Jidoefor’s role as a cooperator in
various cases handled by this office. He also provided his personal
opinion regarding the potential implications of that role with respect to
Mr. Jidoefor’s removal. I write to clarify that Mr. MacLaughlin’s
October 13th letter reflects his personal opinion only, and is not the
position of this office.
Two weeks later, when the U.S. Attorney’s Office learned that AUSA MacLaughlin
sent the October 13 letter pursuant to the government’s plea agreement with Jidoefor,
U.S. Attorney Luger immediately sent DHS a third letter stating:
I write regarding my letter dated November 14, 2022. The November 14,
2022 letter was issued due to a miscommunication in my Office, and I
hereby retract it. This Office confirms its commitment to the plea
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agreement with Mr. Jidoefor and AUSA MacLaughlin’s October 13,
2022 letter. We will file this letter dated November 28, 2022 on the
docket today in United States of America v. Jidoefor, 16-cr-340-MJD-
TNL.
Also on November 28, Jidoefor filed a motion in the district court seeking “an
Order providing appropriate relief for the government’s bad faith violation of the
parties’ plea agreement,” and arguing the government’s November 14 retraction letter
“deliberately negated the [immigration] benefit that it agreed to provide to Mr.
Jidoefor as part of its plea agreement with him.” The government responded,
explaining that the breach was inadvertent, stating that the government stood behind
its promises made in the plea agreement, and arguing that any short-lived breach had
been remedied. The government attached a copy of the November 28 letter and noted
that DHS had filed a supplemental brief in the removal proceeding “withdrawing” the
November 14 letter and providing the BIA a copy of the November 28 letter.
On December 8, the BIA denied Jidoefor’s motion to stay removal proceedings.
This ruling made him subject to immediate removal, and he was removed to Nigeria
in January 2023.5 On December 14, the district court denied Jidoefor’s motion to
remedy breach of the plea agreement. The court agreed with the parties that the
November 14 letter was a breach and noted that “the government’s material breach
of the plea agreement” after the guilty plea has been accepted “violates the
defendant’s due process rights,” quoting United States v. Mosley, 505 F.3d 804, 809
(8th Cir. 2007). However, the court noted, “some breaches may be curable upon
timely objection -- for example, where the prosecution simply forgot its commitment
5In a Fed. R. App. P. 28j letter, the government submitted an unpublished BIA
decision in May 2023 denying Jidoefor’s motion to reopen the removal proceedings
as untimely and number-barred. In declining to reopen the proceedings sua sponte,
the BIA stated that it “considered the documents submitted in support of the motion,
including the letter dated October 13, 2022, regarding the respondent’s cooperation.”
Matter of Jidoefor, No. A096-687-493 (BIA May 8, 2023).
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and is willing to adhere to the [plea] agreement,” quoting Puckett v. United States,
556 U.S. 129, 140 (2009) (emphasis omitted). Here, Jidoefor received the sentencing
benefits of the plea agreement. While the promised October 13 letter was important
to his decision to plead guilty, the court found that the government had sufficiently
explained the origin of the November 14 letter, and the November 28 letter was a
timely retraction of that mistake.
On appeal, Jidoefor argues the district court erred in denying him a remedy for
the government’s breach of the plea agreement. The parties agree the November 14
letter was a breach of the plea agreement. The question is whether the district court
erred in determining that the government’s November 28 letter was an adequate
remedy. When the government’s alleged breach of the plea agreement “directly
affects the lawfulness of the sentence,”
[t]here are two potential remedies . . . remand for specific performance
and withdrawal of the guilty plea. The decision as to which to grant
rests in the sound discretion of the [district] court. Specific performance
is the preferred remedy.
United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (quotation
omitted). Those two remedies derive from Santobello v. New York, 404 U.S. 257
(1971), the leading case dealing with the government’s obligation to comply with
plea agreement commitments. In Santobello, the government agreed not to make a
sentencing recommendation. At sentencing, the government instead recommended
the maximum sentence, a breach that directly affected the sentence to be imposed.
The district court in imposing the recommended maximum sentence explicitly stated
it would have imposed that sentence regardless what the government recommended.
Without reaching the question whether the sentencing judge would have been
influenced by disclosure of the details of the plea negotiations, the Supreme Court
reversed. “[W]hen a plea rests in any significant degree on a promise or agreement
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of the prosecutor, so that it can be said to be part of the inducement or consideration
[for the contract],” the Court explained, “such promise must be fulfilled.” Id. at 262.
The Court remanded to the state court, explaining:
The ultimate relief to which petitioner is entitled we leave to the
discretion of the state court, which is in a better position to decide
whether the circumstances . . . require only . . . specific performance of
the agreement on the plea, in which case petitioner should be
resentenced by a different judge, or whether . . . the circumstances
require granting the relief sought by petitioner, i.e., the opportunity to
withdraw his plea of guilty. We emphasize that this is in no sense to
question the fairness of the sentencing judge; the fault here rests on the
prosecutor, not on the sentencing judge. Id. at 263.
We have applied Santobello’s resolution of the remedy question in many cases
that, like Santobello, involved the government’s breach of a promise directly related
to sentencing, such as whether the defendant is entitled to an acceptance-of-
responsibility adjustment. See United States v. Collins, 25 F.4th 1097, 1101-02 (8th
Cir. 2022). In Mosley, we concluded that the government breached the plea
agreement by arguing the defendant’s pre-plea statements established that she failed
to qualify for an acceptance-of-responsibility sentence adjustment; we remanded for
resentencing by a different judge, as Santobello required: “By holding that it was
immaterial whether the prosecution’s breach influenced the trial judge’s decision,
Santobello necessarily rejected the view that the prosecution’s breach could have
been harmless. . . . [T]he consensus view among our sister circuits [is] that harmless-
error analysis does not apply when the government breaches a plea agreement.” 505
F.3d at 810. We acknowledged that another panel did not apply this “general rule”
in United States v. E.V., 500 F.3d 747, 754-55 (8th Cir. 2007), and we noted that
other courts “have identified ‘exceptions’ to the general rule” but concluded these
“potential exceptions” were not “applicable here.” Mosley, 505 F.3d at 810 n.1.
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As the district court recognized, the Supreme Court since our decision in
Mosley has addressed Santobello remedy issues but not the harmless error question.
In Puckett, resolving a conflict in the circuits, the Court held that “Rule 52(b)’s plain-
error test applies to a forfeited claim . . . that the Government failed to meet its
obligations under a plea agreement.” 556 U.S. at 133. The Court rejected Puckett’s
contention that rigorous plain-error review should not be required because “it is too
late to ‘unring’ the bell even if an objection is made.” Id. at 139. Not so, the Court
reasoned -- “some breaches may be curable upon timely objection -- for example,
where the prosecution simply forgot its commitment and is willing to adhere to the
agreement,” id. at 140 (emphasis in original), one of the “potential exceptions” we
noted in Mosley, 505 F.3d at 810 n.1.
Numerous cases from other circuits apply what is called a “cure” rule -- the
defendant is not entitled to one of the two Santobello remedies if the government’s
unequivocal retraction of its plea agreement breach “fully cures its breach through
specific performance of its obligation,” one of the exceptions noted in Mosley, 505
F.3d at 810 n.1. See, e.g., United States v. Cruz, No. 23-1192, 2024 WL 997591, at
*3-5 (3d Cir. Mar. 8, 2024); United States v. Oppenheimer-Torres, 806 F.3d 1, 4 (1st
Cir. 2015); United States v. Amico, 416 F.3d 163, 165-68 (2d Cir. 2005); United
States v. Hutto, 853 F. App’x 445, 450-51 (11th Cir. 2021); United States v. Diaz-
Jimenez, 622 F.3d 692, 693-94 (7th Cir. 2010).
We have not yet recognized a “cure rule” and continue to apply Mosley when
the government’s breach of the plea agreement related directly to sentencing. We
have noted that other circuits have adopted and applied the rule but we have declined
to do so when the issue arose in cases where either the government did not attempt
to cure or the purported cure was not “the kind of ‘unequivocal retraction’ other
courts expect.” Collins, 25 F.4th at 1102 n.1; see United States v. Brown, 5 F.4th
913, 916 (8th Cir. 2021). In a Mosley type of case -- where the government’s breach
was directly related to the sentence imposed -- we are bound by Mosley’s resolution
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of the harmless error issue. Even an unequivocal retraction of this type of breach
cannot “unring” the sentencing bell.
But this is not that type of case. Here, the promise the government’s November
14 letter breached was not the government’s sentencing recommendation or otherwise
directly related to the sentence the district court imposed. It was the government’s
promise, specifically described in the plea agreement as a “Collateral
Consequence[],” to send a letter to immigration authorities that was intended to
influence their decision whether to remove Jidoefor from the United States because
of his crimes in this country. Without question, however, this was an issue of great
importance to Jidoefor, and the record supports an inference that this promise induced
his agreement to plead guilty.
Santobello recognized the importance of ensuring that promises made to induce
guilty pleas will be fulfilled. But the Court did not consider whether a defendant who
nonetheless receives the benefit of his plea bargain in one of the ways Mosley labeled
“exceptions” to the general rule -- situations where the government “fully cures its
breach through specific performance of its obligation,” or “the breach is so
minor . . . the defendant’s reasonable expectations under the agreement are fulfilled,”
or the court “imposed the lowest sentence possible,” 505 F.3d at 810 n.1 -- is also
entitled to the alternative Santobello remedies. At least where the government
breaches a collateral obligation not directly related to sentencing, and the government
has fully cured its breach through specific performance of its collateral obligation, we
conclude the breach has become immaterial and the district court has discretion to
deny a further Santobello remedy.
Here, the U.S. Attorney’s November 28 retraction letter preceded the BIA’s
December 2022 decision denying Jidoefor’s motion to stay removal and its May 2023
decision denying Jidoefor’s motion to reopen removal proceedings. The BIA
expressly stated it considered the government’s October 13 letter, which complied
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with its plea agreement obligation, in deciding whether to reopen sua sponte. The
plea agreement and the district court in accepting the plea advised Jidoefor that the
U.S. Attorney cannot tell immigration authorities what to do. Thus, the unequivocal
November 28 retraction “cured” the government’s November 14 breach of the plea
agreement by providing Jidoefor what he bargained for -- a statement from the
government that he hoped would favorably impact his ongoing removal proceedings,
received by the decisionmaker prior to its unfavorable decision. Guaranteeing a
favorable immigration decision is not what Jidoefor bargained for. Cf. United States
v. Gillen, 449 F.3d 898, 902-03 (8th Cir. 2006) (holding similar language should have
alerted defendant that plea agreement was not binding on district court). Nor was the
retraction letter equivocal because it states the government “confirms its commitment
to the plea agreement with Mr. Jidoefor,” as Jidoefor contends. The government did
not promise not to disclose that. The October 13 letter, which the BIA expressly said
it considered, did not mention that it was sent pursuant to a plea agreement. Jidoefor
cites no relevant authority supporting this speculative contention.
“It’s true . . . that a bell cannot be unrung. But a mistake is not a bell, and
usually can be corrected.” Diaz-Jimenez, 622 F.3d at 696. For the foregoing reasons,
we conclude the district court did not abuse its discretion by concluding that the
government’s breach of a collateral plea agreement promise was cured, adequately
corrected, and specifically performed by the November 28 letter retracting the
November 14 breach and fully recommitting the government to the October 13 letter
that fulfilled this collateral promise. There was no material breach and no further
remedy was warranted; “the government’s cure of [the] breach . . . obviate[d] the need
for further action from the district court to salvage the plea agreement.” United States
v. Dulcer, 806 F. App’x 757, 763 (11th Cir. 2020).
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II. The Restitution Issue.
The underlying fraud charges arose out of Jidoefor’s participation in an
expansive scheme by Huy Ngoc Nguyen and five co-defendants to defraud auto
insurers by submitting claims through his chiropractic clinic, Healthcare Chiropractic,
for medically unnecessary or nonexistent chiropractic services. The indictment
alleged that Jidoefor acted as a “runner” for Nguyen, recruiting patients for these
fraudulent services and staging purposely crashed accidents to obtain kickback
payments from Nguyen and make claims for various auto insurance benefits. Count
7 of the Superseding Indictment charged that Jidoefor committed mail fraud when
Nationwide mailed a check to Healthcare Chiropractic in December 2015 for
chiropractic services rendered to T.J. following an October 25 staged accident. In the
plea agreement, Jidoefor stipulated to the following facts:
a. From . . . 2010 and continuing . . . through . . . 2016 . . . there was a
scheme and artifice to defraud providers of no-fault automobile
insurance policies of money and property. The defendant joined the
scheme in 2015.
b. From . . . 2015 through . . . 2016, the defendant caused to be
sent . . . mailings . . . for the purpose of executing and attempting to
execute such scheme and artifice described above. This included the
mailing of a check from Nationwide Insurance Company to Healthcare
Chiropractic relating to patient T.J. on approximately December 18,
2015, as described in the Corrected Superseding Indictment.
c. As part of this scheme . . . the defendant recruited automobile
accident victims to show up for appointments at Huy Nguyen’s
chiropractic clinic, received illegal payment for recruiting these patients,
and made payments to patients to induce them to receive medically
unnecessary chiropractic services. One accident for which the defendant
acknowledges responsibility occurred on October 25, 2015.
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The parties agreed that restitution would be required under the Mandatory Victim
Restitution Act, 18 U.S.C. § 3663A, but they “agree[d] to litigate the appropriate
amount of restitution at sentencing.”
Though the indictment alleged that Jidoefor was responsible for three staged
accidents, at the sentencing hearing the government only presented evidence of
insurer losses from the purported accident on October 25, 2015 involving patient T.J.
The government alleged two Nationwide losses, $12,028 it paid for a Personal Injury
Protection (PIP)6 claim for chiropractic and medical care T.J. received after the staged
accident, and a $10,000 Bodily Injury (BI) settlement paid to T.J. for her pain and
suffering.
At the hearing, Agent Ferris of the Minnesota Commerce Fraud Bureau,
testifying for the government, presented a summary Nationwide document detailing
the losses it incurred as a result of the October 25 staged accident. He also presented
a spreadsheet summarizing his independent verification of the loss amounts on the
summary document, created from additional Nationwide documents that were
certified true and correct by Nationwide’s custodian of records and verified by a
special investigator.
Agent Ferris testified that he interviewed T.J. on two occasions. T.J. admitted
that Jidoefor and two other men arranged to stage the October 25 accident, and that
she later claimed to have been injured when she was not even in the car during the
staged accident. Agent Ferris further testified that T.J. said Jidoefor was the “driving
force” behind the staged accident, was present during the staged accident, and
referred T.J. to Healthcare Chiropractic for medical care and to Martin Montilino, a
6Personal Injury Protection is an automobile policy provision that requires the
insurer to pay up to $20,000 in medical bills and/or $20,000 in lost wages as a result
of an individual being involved in a car accident.
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local personal injury lawyer, to seek the BI award, though Jidoefor did not physically
bring T.J. to either the clinic or Montilino’s office. The district court overruled
Jidoefor’s repeated objections to Agent Ferris’s testimony. Attorney Montilino,
appearing as a defense witness, testified that he represented T.J. in claiming damages
for the October 25 accident but did not believe Jidoefor referred T.J. to him. On
cross-exam, Montilino confirmed that “the no-fault PIP benefits and the amount of
the BI settlement” presented by the government were “accurate.”
At the close of the evidence, Jidoefor argued the government had not met its
burden to show that the claimed losses “were caused by Mr. Jidoefor.” Counsel
argued the government had not proved Jidoefor either brought T.J. to Montilino to
seek a BI award from Nationwide or took T.J. to the chiropractic clinic. Counsel
argued the government’s supporting testimony was vague double hearsay that did not
establish the “necessary proof by a preponderance of the evidence.” In addition,
counsel argued the records from Nationwide were “pretty old” and had not been
supported “either through testimony or sworn statements by officials with knowledge
of [Nationwide’s] losses to verify that they actually . . . occurred.” The district court
disagreed, found Jidoefor responsible for $22,028.02 in losses for PIP payments and
the BI settlement, and ordered restitution in that amount.
On appeal, Jidoefor argues the district court erred in calculating Nationwide’s
losses and imposing the $22,028 restitution obligation. The government bears the
burden of proving by a preponderance of the evidence that the offense of conviction
“both directly and proximately caused the losses.” United States v. Sukhtipyaroge,
1 F.4th 603, 607 (8th Cir. 2021). In reviewing loss calculations underlying a
restitution order, “we review the district court’s legal conclusions de novo and its
factual findings for clear error, keeping in mind that the district court need make only
a reasonable estimate of the loss.” United States v. Ruzicka, 988 F.3d 997, 1013-14
(8th Cir. 2021) (quotations omitted).
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Jidoefor first argues that the “government failed to present sufficient competent
evidence that . . . Jidoefor caused the claim[ed] losses for purposes of loss calculation
or restitution.” He emphasizes the alleged unreliability of the government’s hearsay
evidence. This contention is an uphill struggle on appeal. “[A] district court is
permitted to rely on relevant hearsay or other evidence ‘without regard to its
admissibility under the rules of evidence applicable at trial,’ so long as that evidence
possesses ‘sufficient indicia of reliability to support its probable accuracy.’” United
States v. Sheridan, 859 F.3d 579, 583 (8th Cir. 2017), quoting USSG § 6A1.3(a).
“The determination of whether hearsay evidence is sufficiently reliable to support a
sentencing decision depends on the facts of the particular case and is committed to
the sound discretion of the district court.” United States v. Cassidy, 6 F.3d 554, 557
(8th Cir. 1993) (citations omitted).
However, we need not address this issue in detail because Jidoefor’s above-
quoted admissions in the plea agreement establish both direct and proximate cause
for Nationwide’s BI and PIP losses by a preponderance of the evidence. Jidoefor
admitted he “joined” a “scheme and artifice to defraud providers of no-fault
automobile insurance policies of money and property.” As part of this scheme, he
“caused to be sent . . . a check from Nationwide Insurance Company to Healthcare
Chiropractic relating to patient T.J.” (Emphasis added.) This check was part of the
PIP award Nationwide paid to cover T.J.’s medical costs. Jidoefor also
“acknowledge[d] responsibility [for the accident that] occurred on October 25, 2015.”
Staging that accident “created the circumstances” for the fraudulent BI claim that
Nationwide paid to settle. Sukhtipyaroge, 1 F.4th at 608 (quotation omitted).
Jidoefor thus admitted to causing Nationwide’s losses in the amount of the PIP and
BI payments. These losses were “not only reasonably foreseeable, they were a key
reason” for staging the auto accident and referring T.J. to the clinic. Id.
Jidoefor further argues the government failed to provide sufficient evidence of
Nationwide’s actual losses. Unlike the indefinite agent testimony in United States v.
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Adejumo, 848 F.3d 868, 871 (8th Cir. 2017), a decision on which Jidoefor relies,
Agent Ferris presented a summary of losses prepared by Nationwide and described
his own independent verification using Nationwide documents certified by
Nationwide as true and correct and provided to defense counsel before the hearing.
There was no evidence that Nationwide overestimated its losses. Indeed, defense
witness Montilino, with considerable first-hand knowledge, confirmed the loss
figures were “accurate.”
Based on this record, the district court did not abuse its substantial discretion
in calculating actual losses of $22,028 and ordering restitution in that amount.
III. The Sentencing Issue.
Based on the total loss amount, the district court calculated an advisory
guidelines range of 8 to 14 months imprisonment for the mail fraud offense.7 The
court imposed a concurrent prison sentence of time served, approximately 27 months
at the time of the sentencing hearing, with no supervised release to follow, for both
offenses. On appeal, Jidoefor argues the time-served sentences are substantively
unreasonable because the “district court provided no explanation for its imposition
of this substantial upward variance” from the advisory guidelines range. He argues
“[t]he case must be remanded for resentencing with instructions to sentence Mr.
Jidoefor within the applicable Guidelines.”
This contention is without merit for multiple reasons. First, Paragraph 9 of the
plea agreement provides: “The parties jointly agree to recommend a sentence of time
served to resolve both” the criminal case and the supervised release violation case.
“A defendant who explicitly and voluntarily exposes himself to a specific sentence
7The plea agreement contemplated a higher range -- 24 to 30 months -- based
on losses from all three staged accidents alleged in the indictment.
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may not challenge that punishment on appeal.” United States v. Nguyen, 46 F.3d
781, 783 (8th Cir. 1995). Second, the time-served prison sentence was completed
(served) when issued, without regard to how many months Jidoefor had served at that
time. Remanding for resentencing to a different number of months time-served would
not provide a sentencing remedy for Jidoefor, who has been removed from the United
States -- a textbook example of harmless procedural error.
For these reasons, this contention is without substantive merit. In addition,
because Jidoefor has served the time-served sentence he is challenging, there is a
serious question of mootness that affects this portion of the three consolidated
appeals. “[W]hen a defendant challenges only an expired sentence . . . the defendant
must bear the burden of identifying some ongoing collateral consequence that is
traceable to the challenged portion of the sentence and likely to be redressed by a
favorable judicial decision.” United States v. Juvenile Male, 564 U.S. 932, 936
(2011) (quotation omitted, emphasis in original). Here, Jidoefor challenges only the
length of his now-served sentence. He alleges no collateral consequences, indeed, he
does not acknowledge the issue or address the question of mootness. Thus, as in
Owen v. United States, 930 F.3d 989, 990 (8th Cir. 2019), it appears that Jidoefor
“has obtained all of the relief that he sought” regarding the length of his time-served
sentences.
The judgment of the district court is affirmed.
______________________________
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