You are on page 1of 21

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 1 of 21 PageID# 96


Docket No. 1:11CR235 Hon. Gerald Bruce Lee Sentencing Date: September 16, 2011

DEFENDANTS POSITION ON SENTENCING FACTORS Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, Section 6A1.3 of the United States Sentencing Guidelines (U.S.S.G. or the Guidelines), and this Courts Policy Regarding Procedures to be Followed in Guideline Sentencing, the defendant, Edobor Okenwa, through counsel, states that he has received and reviewed the Presentence Investigation Report (PSR) prepared in this case and submits the following corrections, objections, and argument. CORRECTIONS AND OBJECTIONS TO THE PSR Mr. Okenwa has no objections to the Guidelines calculations, but one factual correction to the PSR; namely that paragraph 47 be amended to reflect that his father, Bernard Okenwa, is now deceased. SENTENCING ARGUMENT On May 18, 2011, Mr. Okenwa pled guilty to one count of attempted importation of heroin in violation of 21 U.S.C. 952 and 963. The penalties for this offense are ten (10) years to life imprisonment (ten years of which is a mandatory minimum), a fine of no more than $10 million, and at least five (5) years of supervised release. The advisory

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 2 of 21 PageID# 97

Guidelines range for Mr. Okenwa is forty-six to fifty-seven (46-57) months of imprisonment (or 3.83 to 4.75 years). For the following reasons, Mr. Okenwa believes that a below-Guidelines sentence is appropriate in this case. As such, he asks the Court to vary downward from the Guidelines range and sentence him to no more than thirty-six (36) months of imprisonment.1 Such a sentence is sufficient but not more than necessary to address the sentencing factors under 18 U.S.C. 3553(a). I. The Sentencing Factors Congress requires district courts to impose the least amount of imprisonment necessary to accomplish the sentencing purposes set forth in 18 U.S.C. 3553(a).2 The factors to consider include: (a) the nature and circumstances of the offense and the 1 As Mr. Okenwa qualifies for sentencing under the safety valve provision of 18 U.S.C. 3553(f), the Court has the authority to impose a sentence below the ten year mandatory minimum. PSR 73. The safety valve provision survives the Supreme Courts decision in United States v. Booker, 543 U.S. 220 (2005). See United States v. Cardenas-Juarez, 469 F.3d 1331, 1334 (9th Cir. 2006); United States v. Chambers, No. 05-CR-95, 2008 WL 687110, at *3 (E.D. Wis. 2008); United States v. Boyd, 496 F. Supp. 2d 977, 985 (E.D. Ark. 2007); United States v. Cherry, 366 F. Supp. 2d 372, 376 (E.D. Va. 2005) (Jackson, D.J.); United States v. Duran, 383 F. Supp. 2d 1345, 1347 (D. Utah 2005). Indeed, since the Guidelines are advisory, the Court has the power to sentence below the Guidelines range in this case. See Boyd, 496 F. Supp. 2d at 985 (sentencing a safety-valve eligible defendant to below the Guidelines range); Duran, 383 F. Supp. 2d at 1347 (stating that the Guidelines range is advisory in safety-valve cases post Booker). 2 The four purposes of sentencing are: retribution (to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment), deterrence, incapacitation (to protect the public from further crimes), and rehabilitation (to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner). 18 U.S.C. 3553(a)(2).

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 3 of 21 PageID# 98

history and characteristics of the defendant; (b) the kinds of sentences available; (c) the advisory Guidelines range; (d) the need to avoid unwarranted sentencing disparities; (e) the need for restitution; and (f) the need for the sentence to reflect the following: the seriousness of the offense, promotion of respect for the law and just punishment for the offense, provision of adequate deterrence, protection of the public from future crimes, and providing the defendant with needed educational or vocational training, medical care, or other correctional treatment. 18 U.S.C. 3553(a). Upon consideration of these factors, a sentencing court may find that the case falls outside the heartland contemplated by the Guidelines, the Guidelines sentence itself fails properly to reflect the 3553(a) considerations, or that the case warrants a different sentence regardless. Rita v. United States, 551 U.S. 338, 351 (2007). While a district court must begin its analysis by correctly calculating the advisory sentencing range, it is then free in light of the other statutory sentencing factors to impose an entirely different sentence. As such, a sentencing court is free to disagree, based on the other 3553(a) sentencing factors, with the Guidelines rough approximation of the appropriate sentence for any given case. Id. at 350. In sum, the Sentencing Guidelines are simply an advisory tool to be considered alongside other statutory considerations set forth in 18 U.S.C. 3553(a). See Kimbrough v. United States, 552 U.S. 85 (2007); Gall v. United States, 552 U.S. 38 (2007). The

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 4 of 21 PageID# 99

Guidelines cannot be used as a substitute for a sentencing courts independent determination of a just sentence based upon consideration of the statutory sentencing factors. Nelson v. United States, 555 U.S. 350, 129 S. Ct. 890, 892 (2009); Spears v. United States, 555 U.S. 261, 264 (2009). Finally, the Supreme Court has recently cautioned that [o]ur cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable and that the Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. Nelson, 129 S. Ct. at 892 (emphasis in original). In other words, sentencing courts commit legal error by using a Sentencing Guidelines range as a default to be imposed unless a basis exists to impose a sentence outside that range. II. A Below-Guidelines Sentence for Mr. Okenwa of No More Than Thirty-Six Months of Imprisonment is Sufficient but Not Greater than Necessary to Satisfy the Purposes of Sentencing. The circumstances of Mr. Okenwas case show that no more than a thirty-six month term of imprisonment is appropriate to achieve the purposes of sentencing and is otherwise consistent with the statutory factors. At the very least, the Court should impose a sentence that is no higher than the low-end of the Guidelines range (forty-six months).

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 5 of 21 PageID# 100


Mr. Okenwas Background and Character

Mr. Okenwa is a forty-five year old Nigerian citizen, who was born in Benin City, Nigeria. He had one full brother, who died at a young age. As a result of tribal wars in Nigeria, Mr. Okenwas parents, who were from rival tribes, divorced when Mr. Okenwa was only five. Thereafter, he was raised by his father and his fathers three wives, who had at least six other children. Mr. Okenwa recalls that more than a dozen people lived in the household. PSR 47-48. Mr. Okenwas father, Bernard Okenwa, was a trader who imported goods for sale in Nigeria, including food, medicines and drug store supplies. He sold these items in a drug store in Benin City. At the age of seven, Mr. Okenwa began working at this store. Initially, he stocked shelves, priced merchandise, and operated the cash register. Eventually, his father taught him the trading aspects of the business, and Mr. Okenwa was given responsibility for importing merchandise. He did this and other jobs for the store for approximately thirteen years. PSR 47, 59. Mr. Okenwas work for his father was largely unpaid. Thus, at the age of twentytwo, Mr. Okenwa decided to leave home and obtain work elsewhere. He was hired as a machine operator for Marklint Medical Complex, which makes pharmaceutical cotton. While working there, Mr. Okenwa realized that he could supply the cotton to the factory at better prices, and so, he began trading on behalf of the factory. This eventually led to

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 6 of 21 PageID# 101

the creation of the first of Mr. Okenwas two trading companies: Besomina International Company, which was created in approximately 1989. Besominas primary business was the importation of vehicles and vehicle parts from Germany and other countries. Mr. Okenwa resold these items in Nigeria. PSR 57-59. Then in 1999, Mr. Okenwa, with a partner, started a second trading company called Cubes Antelope West Africa Limited. This company imported food, clothing and some construction materials. Both trading companies required Mr. Okenwa to travel to other countries, including Germany and the United States, to buy goods. In good years, Mr. Okenwas combined annual income from these companies was approximately $50,000 (USD), which was enough to support his wife, Esther Okenwa, and their three children, ages seventeen, fifteen, and thirteen. All of them live together in an apartment in Lagos, Nigeria. PSR 50-51, 56-58. Mr. Okenwas companies, however, were not always profitable. By early 2011, he owed tens of thousands of dollars to creditors and investors. One particularly bad transaction was a contract to purchase car parts from Malaysia. Mr. Okenwa paid approximately $40,000 for the parts, but never received the merchandise. PSR 61. Word of his financial problems spread around his social circle and business acquaintances. Eventually, in early 2011, a man, introduced to Mr. Okenwa through a mutual acquaintance, approached Mr. Okenwa with a plan to help solve his financial

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 7 of 21 PageID# 102

problems. As described below, this plan required him to travel to Uganda, meet up with unknown people, and agree to be used as a drug courier to the United States. In his desperate financial state, Mr. Okenwa unfortunately agreed to the plan. PSR 29-30. Mr. Okenwas character, however, should not be judged solely from this one criminal act. In his forty-five years, with this one exception, he has lived a law-abiding life dedicated to hard work and raising a family. He is a self-starter who worked his way up from a stock boy (for no pay) to a small business owner making enough money to support himself and a family of four. In the process, he has shown drive and initiative. Mr. Okenwa also is a religious man, and after many years away from school, at the age of forty-one, attended college to study religion. His studies culminated in his receipt of a college degree in Theology from Redeem Bible College in 2007. PSR 55. It is thus that Mr. Okenwa acutely knows that what he did was not only criminally wrong, but also a break with his faith. He asks only that the Court recognize the whole of his character and the circumstances that led him to commit the crime. B. Mr. Okenwa Committed the Offense Conduct at a Time of Extreme Vulnerability and Played a Minor Role in the Overall Offense.

The offense conduct occurred on March 24, 2011, when Mr. Okenwa was arrested for attempting to import heroin into the United States. He was taken into custody by Customs officials at Dulles International Airport after arriving on a flight originating from Uganda and transiting through Europe. Inside his abdomen were eighty-eight pellets

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 8 of 21 PageID# 103

containing 1.44 kilograms of a mixture and substance containing heroin. Mr. Okenwa swallowed these pellets at the direction of international drug traffickers who, with the lure of easy money, enticed him to come to Uganda from his native country of Nigeria. Once in Uganda, these traffickers explained to Mr. Okenwa that his financial problems could be solved if he agreed to swallow the pellets, fly to the United States and meet up with an unnamed contact at the arriving airport. Mr. Okenwa was promised at least $10,000 to be paid upon delivery of the drugs, but that amount would increase the more pellets he swallowed. PSR 27-31. Mr. Okenwa swallowed the pellets over the course of hours of encouragement by the traffickers, who brought the condom-sized pellets out on a tray (like food), massaged his shoulders, and gave him fluids to keep him swallowing more and more. He had to take breaks to rest and occasionally vomit. Amazingly, he swallowed eighty-eight pellets, enough to kill him multiple times over if any erupted.3 The traffickers then made 3 Heroin works on the central nervous system, slowing heartbeat and breathing. According to one website, Depending on purity and the user, a lethal dose of heroin may range from 200 to 500mg, but hardened addicts have survived doses of 1800mg and over. However, with street heroin there is no absolutely certain "safe dosage". It depends on tolerance, amount and purity taken. Overdose can occur when a dose taken is greater than that you're used to. A tolerable dose for an addict could be fatal to a first-time user. Heroin Overdose, D RUG-O VERDOSE.COM, http://www.drug-

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 9 of 21 PageID# 104

Mr. Okenwas flight arrangements, purchased his ticket, gave him some cash, and drove him to the airport with instructions to call them in Uganda once he landed in the United States. At that time, he would be told where to go and who to meet. Mr. Okenwa did not even have the full names of most of the traffickers, who identified themselves, if at all, by first names or nicknames. Mr. Okenwa then began the long flight from Uganda to Dulles Airport. The traffickers gave him muscle relaxers and anti-diarrhea medication to delay a bowel movement. His total travel time was approximately seventeen hours and by the time he arrived at Dulles, Mr. Okenwa was in so much discomfort that the Customs Agents had little difficulty in surmising that he had swallowed contraband.4 (Mr. Okenwa has related to his counsel that he was in so much pain that he felt like dying.) Eventually he was transported to a local hospital where an x-ray revealed the pellets and he was then arrested. It is an understatement to say that Mr. Okenwa was used as a tool, and an expendable one at that. He is the classic mule who was told what to do, when to do it, (last visited July 27, 2011). 4 At the preliminary hearing, one of the agents testified that when he arrived at the Customs counter, Mr. Okenwa appeared to be standing awkwardly. Another agents report states that Mr. Okenwas abdomen was noticeably distended and rigid. See also PSR 26 (summarizing Customs reports stating that Mr. Okenwas abdominal area [was] rigid and swollen).

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 10 of 21 PageID# 105

and where to do it. He did not have any decision-making authority over his itinerary, points and times of departure and arrival, or what to do once he arrived. Everything was arranged for him; he merely had to carry the load from point A to point B. He was not the source of the drugs, did not package them, and was not the intended recipient (or seller) of the heroin. He was not even informed of the nature of the drugs that he was carrying. Moreover, Mr. Okenwa acted as a mule only this one time. He is less culpable than the traffickers who arranged his trip, provided him with the drugs, and those to whom he would have delivered the drugs (who would have sold them) had he not been apprehended at the airport. The decision by the other participants to place Mr. Okenwas life at grave risk by directing him to swallow eighty-eight pellets of heroin, instead of packing them in his luggage, demonstrates the traffickers view that his role in the offense was minor, and his life was expendable. Accordingly, comparing Mr. Okenwas culpability to that of the average participant in an importation offense either in this particular scheme, or in drug offenses involving mules generally his culpability was substantially less . . . than the average participant who provided the drugs, packaged them, or intended to receive them. See U.S.S.G. 3B1.2 cmt. n.3(A). As such, the PSR correctly concludes that Mr. Okenwa was a minor participant in the offense conduct, justifying a lower offense level


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 11 of 21 PageID# 106

pursuant to Guidelines section 3B1.2(b).5 PSR 34; see also id. at Addendum to the PSR at A-1 (overruling the governments objection to the minor role reduction and finding that Mr. Okenwas actions were consistent with that of a typical mule with limited knowledge of the drug quantity and travel arrangements). According Mr. Okenwa minor role status also is consistent with the treatment of two other recent mule cases in this district. The first, Yomade Aborishade (E.D. Va. No. 11CR259-GBL), was a swallower like Mr. Okenwa. Also like Mr. Okewnwa, he traveled from Nigeria with a large amount of heroin (1.8 kilos) with very limited knowledge of the larger enterprise and grave risk to his own life. The PSR recommended (and the government did not object) to the two-level minor role reduction and the Court applied it in that case. See Aborishade Guidelines Worksheets attached as Exhibit 3 (filed Aug. 8, 2011). The second defendant, Joao Borgas (E.D. Va. No. 10CR430-CMH), carried the narcotics (16.4 kilos of cocaine) in his luggage.6 Like Messrs. Okenwa and Aborishade, he had limited knowledge of the operation other than his part in it (carrying 5 Under U.S.S.G. 3B1.2, a defendant is entitled to a two, three, or four point reduction in his offense level if he played a minor to minimal role in the offense of conviction. A defendant is entitled to such a reduction if he plays a part in committing the offense that makes him substantially less culpable than the average participant. See U.S.S.G. 3B1.2 cmt. n.3(A). More specifically, the two-level adjustment is intended to cover a defendant who is less culpable than most other participants, but whose role could not be described as minimal. Id. at cmt. n.5. 6 10.4 kilograms were carried in his luggage and another 6 kilos were carried in the luggage of a confederate.


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 12 of 21 PageID# 107

the cocaine from Argentina to Amsterdam via Dulles International Airport). He too received a two-level minor role reduction without any objection. See Borgas Guidelines Worksheets attached as Exhibit 4 (filed Mar. 10, 2011). Mr. Okenwas offense conduct, as it relates to the minor role adjustment, is materially indistinguishable from these two other drug mules cases and like them, the minor role adjustment is properly applied. In sum, his lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as a minor participant. U.S.S.G. 3B1.2 cmt. n.4 (discussing the adjustment for minimal participant under U.S.S.G. 3B1.2(a)). That said, Mr. Okenwa does not contend that these mitigating facts excuse his conduct; indeed, he admits and has accepted responsibility for his wrongful actions. See PSR 36-39. Rather, these facts provide a useful context for this Court because, [i]n determining a sentence, it is worth attempting to understand (as best one can) what set a defendant upon [an] illegal course. United States v. Blake, 89 F. Supp. 2d 328, 332 (E.D.N.Y. 2000). Because the Guidelines are predicated primarily on mechanically defined just deserts, courts must look to the specific circumstances surrounding a defendants actions. United States v. Hawkins, 380 F. Supp. 2d 143, 151 (E.D.N.Y. 2005). Given the limited and isolated nature of his wrongful conduct, his acceptance of


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 13 of 21 PageID# 108

responsibility and cooperation,7 and the circumstances giving rise to his criminal activity, Mr. Okenwa respectfully submits that just deserts would be a below-Guidelines sentence. C. The Drug Quantity Table Exaggerates Mr. Okenwas Culpability

All of Mr. Okenwas thirty-two offense level points come from the drug quantity table in U.S.S.G. 2D1.1. That table is meant to be a proxy for culpability; the greater the quantity of drugs corresponds to a higher offense level and higher advisory Guideline range. This scheme makes sense in the mine-run drug case where a defendant knows or has some say in the quantity of the drug to be distributed or imported. For instance, a drug seller who makes a sale to an undercover officer knows how much he is selling and the price. His culpability is correctly measured against his knowledge and the profit he reaps from what he sells. However, using weight as a proxy for culpability does not make sense for cases like Mr. Okenwas. He was never told, and did not know, how much of the drug he was carrying. He was just told to keep swallowing pellet after pellet. Nor did he know how much the drugs were worth, how much they would be sold for, or who/how they were to be sold. For that matter, Mr. Okenwa was not even told what type of drug he was carrying. Under these circumstances, it is unjust to ascribe the same level of culpability 7 Mr. Okenwa promised to cooperate with the government in his Plea Agreement and has done so. See Plea Agmt. 10.


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 14 of 21 PageID# 109

to him that the drug quantity table ascribes to dealers/traffickers who have far greater information about the criminal enterprise. As the Supreme Court recently reminded sentencing courts, the punishment should fit the offender and not merely the crime. Pepper v. United States, 131 S. Ct. 1229, 1239-40 (2011) (quotation marks and citation omitted). Moreover, the drug table does not take into account how long a defendant has been engaged in the drug activity. For example, someone who has made dozens of small sales of heroin receives the same offense level score as a mule who delivers the same weight on one occasion. For defendants like Mr. Okenwa, this result is particularly harsh given that his criminal conduct occurred for a very short period (a matter of days) in a life that had been crime-free for forty-five years. Further, one of the reasons for the high sentencing ranges in drug cases is to encourage cooperation in exchange for a sentence reduction. Where as here, a defendant is a minor participant and thus has limited knowledge to provide, he is punished according to the weight of drugs but unlike a more culpable defendant has no realistic opportunity to reduce his sentence through substantial cooperation. In short, the rationale behind the drug quantity table does not fit Mr. Okenwas individual case. Therefore his advisory Guideline range, which is driven entirely by that table, is excessive and should be accorded less deference than the other 3553(a) factors.


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 15 of 21 PageID# 110

See Spears v. United States, 555 U.S. 261, 266 (2009) (explaining that when the Commission fails to fulfill its institutional role, a district court can vary from the Guidelines based on [a] policy disagreement with them, and . . . based on an individualized determination that they yield an excessive sentence in a particular case) (emphasis in original). D. A Below-Guidelines Sentence Serves the Needs of Deterrence and Protection of the Public.

A below-Guidelines sentence also is warranted given the diminished need to afford deterrence and to protect the public from further crimes of the defendant. 18 U.S.C. 3553(a)(2)(B), (C). Mr. Okenwa has no prior arrests or criminal convictions. PSR 4044 . Given that before now he has never spent a day in jail, it is simply not necessary to imprison him for a long period of time in order to deter him (or others similarly situated) from committing further crimes or to protect the public. Long imprisonment, therefore, would have a substantial deterrent effect not accounted for by his Guidelines range. See United States v. Mishoe, 241 F.3d 214, 220 (2d Cir. 2001) (recognizing that a large disparity between a defendants prior sentences and potential sentence provides a deterrent effect that is not accounted for by the Guidelines). In addition, a three-year sentence of imprisonment is a serious punishment that satisfies the retributive, deterrent, and incapacitation goals of sentencing. That sentence will fully conveyindeed, has already conveyedto Mr. Okenwa the seriousness of his


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 16 of 21 PageID# 111

conduct by depriving him of substantial time that he could otherwise have spent providing for his family. Moreover, such a sentence is sufficient to afford deterrence because Mr. Okenwa presents no special problems of recidivism: He is a first-time, nonviolent offender who gave an uncounseled confession to law enforcement agents shortly after his arrest, continues to cooperate with the government post-arrest, and fully accepts responsibility for his illegal conduct. His likelihood of recidivism is slight, given his remorse and cooperation, and considering that his offense arose in the midst of financial vulnerability. He has never before displayed criminal tendencies, and no more than thirty-six months of incarceration is enough to dissuade him from further criminal wrongdoing and to punish him fully.8 Indeed, his personal history, his cooperation and candor, and his letter to the Court (attached as Exhibit 1), reflect that he is a decent, hardworking, caring man whose criminal conduct is a deviation from a life of law-abiding behavior. See also Letter from Charles Aideyan (half-brother in Nigeria) attached as Exhibit 2 (stating that to all our knowledge as members of the immediate family and I,

8 Although not reflected in the PSR, Mr. Okenwa has already begun his rehabilitation by attending daily bible study classes at the Alexandria Detention Center and providing informal counseling to other inmates. He also is a unit worker with cleaning responsibilities within his unit.


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 17 of 21 PageID# 112

as the head, to the knowledge of his wife and the Christian communities around where he lived . . . that not even once did we ever see him exhibit any such criminal tendency).9 Additionally, there is only a negligible risk that any future criminal conduct on his part could affect the public because he will be immediately deported to Nigeria after serving his sentence.10 Cf. United States v. Ramirez-Ramirez, 365 F. Supp. 2d 728, 733 (E.D. Va. 2005) (Lee, D.J.) (noting the decreased need to protect the public from further crimes of the defendant when he will ultimately be removed and sent out of the country); United States v. Biheiri, 356 F. Supp. 2d 589, 603 (E.D. Va. 2005) (Ellis, D.J.) (observing that the goal of protecting the public was of little import where the defendant was going to be deported to Egypt immediately following his release from custody). While acknowledging that his conduct in this case is serious, Mr. Okenwa submits that sentencing him within the Guidelines would unduly punish him for his actions while simultaneously having a detrimental effect on society as a whole. Chief among Mr. Okenwas concerns is the welfare of his wife and three minor children, who live in Lagos,

9 Mr. Aideyans letter also discloses the unfortunate news that upon hearing of his sons arrest, Mr. Okenwas father [suffered] cardiac arrest and six hours later, died. This untimely death is but another punishment Mr. Okenwa must endure because of his illegal conduct. 10 As part of his Plea Agreement, Mr. Okenwa has agreed to be deported following service of his sentence. PSR 12.


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 18 of 21 PageID# 113

Nigeria. When Mr. Okenwa departed Nigeria in March 2011, his wife, a homemaker, expected him to return within a few weeks. Mr. Okenwa made no provision for his family beyond that brief period. His family is wholly dependant on Mr. Okenwas income. PSR 50. He needs to return to his family as soon as possible so that they do not unduly suffer for his actions. E. A Below-Guidelines Sentence Will Promote Sentencing Uniformity

In United States v. Aborishade (E.D. Va. No. 11CR259-GBL), mentioned above, this Court imposed a thirty-six month term of imprisonment for similar conduct to that of Mr. Okenwa. See court documents attached as Exhibit 3. Both defendants were mules from Nigeria who swallowed and transported a large quantity of heroin (100 pellets or 1.825 kg for Mr. Aborishade and 88 pellets or 1.44 kg for Mr. Okenwa) to Dulles International Airport within a week of each other (March 30, 2011 for Mr. Aborishade vs. March 24, 2011 for Mr. Okenwa). Both received a minor role adjustment for their limited knowledge of and participation in the offense. Similarly, the Guidelines range for both defendants is identical (46 to 57 months) based upon an offense level total of 23 and a criminal history category of I. Further, the motives for Messrs. Aborishade and Okenwa are similar: they were both deeply in debt and desperately needed the money offered to them upon delivery of the narcotics. Moreover, the amounts promised to them


Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 19 of 21 PageID# 114

are similar ($10,400 for Mr. Aborishade11 and at least $10,000 for Mr. Okenwa). Lastly, both defendants ultimately confessed to the offense conduct post-Miranda, pled guilty and accepted responsibility for their actions. Given these similarities, and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, 18 U.S.C. 3553(a)(6), a sentence for Mr. Okenwa of no more than thirty-six months of imprisonment (the same as Mr. Aborishade) is appropriate in this case. CONCLUSION In sum, a below-Guidelines sentence is sufficient but not more than necessary to meet the goals of sentencing considering Mr. Okenwas (1) good background and character; (2) reasons for agreeing to commit the offense; (3) minor participation in the offense conduct; (4) absence of any prior criminal history; (5) acceptance of responsibility and cooperation; and (6) family circumstances. Moreover, such a sentence is appropriate given that the drug table exaggerates Mr. Okenwas culpability, there is a lessened need for specific deterrence and protection of the public due to his lack of criminal history and probable deportation, and the need to avoid unwarranted sentence disparities. For theses reasons Mr. Okenwa respectfully asks the Court to impose a belowGuidelines sentence of no more than thirty-six months of imprisonment and to not impose 11 One half of this amount was debt forgiveness and the other half was to be paid upon delivery of the drugs. 19

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 20 of 21 PageID# 115

a fine given his inability to pay. In the alternative, Mr. Okenwa asks that his sentence not exceed forty-six months, which is the low-end of the Guidelines range.

Respectfully submitted, EDOBOR F. OKENWA By Counsel

/s/ Kenneth P. Troccoli Virginia Bar Number 27177 Attorney for the Defendant Assistant Federal Public Defender 1650 King Street, Suite 500 Alexandria, Virginia 22314 (703) 600-0870 (T) (703) 600-0880 (F) (e-mail)

CERTIFICATE OF SERVICE I hereby certify that on September 9, 2011, I will electronically file the foregoing pleading with the Clerk of the Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following: Kara Martin Traster, Esq. Special Assistant United States Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 (703) 299-3700 Pursuant to the Electronic Case Filing Policies and Procedures, a courtesy copy of the foregoing pleading will be delivered to Chambers within one business day of the electronic filing and to Probation Officer Bethany Erding via inter-office mail. 20

Case 1:11-cr-00235-GBL Document 26

Filed 09/09/11 Page 21 of 21 PageID# 116

/s/ Kenneth P. Troccoli Virginia Bar Number 27177 Attorney for the Defendant Assistant Federal Public Defender 1650 King Street, Suite 500 Alexandria, Virginia 22314 (703) 600-0870 (T) (703) 600-0880 (F) (e-mail)