                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-10-2007

USA v. Amponsah
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3641




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                                                             NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   __________

                                   No. 05-3641
                                   __________

                          UNITED STATES OF AMERICA

                                        v.

                               YAW AMPONSAH,

                                    Appellant.
                                   __________

                  On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 01-cr-00479)
                   District Judge: Honorable Mary Little Cooper
                                     __________

                   Submitted Under Third Circuit LAR 34.1(a),
                                June 28, 2007


             Before: BARRY, FUENTES, and GARTH, Circuit Judges.


                            (Filed: September 10, 2007)

                                   __________

                              OPINION OF THE COURT
                                  __________



FUENTES, Circuit Judge.
       After appellant Yaw Amponsah pleaded guilty to one count of conspiracy to

distribute and possess more than 500 grams of cocaine in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846, the District Court sentenced him to 155

months in prison. Amponsah’s principal argument on appeal is that his sentence is

unreasonable. For the reasons set forth below, we will affirm the sentence.

                                   I. BACKGROUND

       In 1988, Amponsah, a citizen of Ghana, entered the United States on a student visa

and thereafter remained in the country illegally. Around 2001, the government received

information from a cooperating witness in an ongoing narcotics investigation that, after

arriving in the country, Amponsah served as a drug courier for a New Jersey-based drug-

trafficking ring known as the “Garba Organization.” On May 28, 2001, federal agents

attempted to interview Amponsah at his home in Fords, New Jersey. Agents initially

confronted Amponsah about his immigration status, but Amponsah refused to provide any

information without an attorney present. Before terminating the interview, agents

informed Amponsah that he was the target of a federal narcotics investigation and

instructed him to have his attorney contact federal authorities.

       One month later, on June 25, 2001, Amponsah voluntarily met with federal agents

after they informed him they had received additional information concerning his drug-

trafficking activities. During the meeting, Amponsah confirmed that, in 1996, he

smuggled 2 to 3 kilograms of cocaine from New Jersey to London on behalf of the Garba

Organization; later recruited two other couriers to participate in drug-smuggling trips;

                                              2
and, in March 1997, invested his own money in a smuggling venture. In two subsequent

meetings with federal authorities on July 2 and 10, 2001, Amponsah provided additional

information about several individuals involved in the Garba Organization.

       On July 19, 2001, Amponsah was charged in a one-count indictment with

conspiracy to distribute and possess more than 500 grams of cocaine, contrary to 21

U.S.C. §§ 841(a)(1) and (b)(1)(B), in violation of 21 U.S.C. § 846, an offense that carries

a mandatory minimum term of imprisonment of 5 years and a maximum term of

imprisonment of 40 years.1 At his arraignment in August 2001, the United States District

Court for the District of New Jersey placed Amponsah under pretrial supervision, the

terms of which required him to surrender his travel documents and remain within the New

York-New Jersey metropolitan area.

       In October 2001, Amponsah entered into a written plea agreement with the

government which included the following stipulations concerning application of the

United States Sentencing Guidelines: (1) the offense involved at least 5 but less than 15

kilograms of cocaine, resulting in a base offense level of 32 under § 2D1.1(c)(4); (2) if his


       1
        Section 841(a)(1) renders it unlawful for any person knowingly or intentionally
“to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Section 841(b)(1)(B)
provides, in relevant part, that an individual who violates § 841(a) by committing an
offense that involves more than 500 grams of a cocaine “shall be sentenced to a term of
imprisonment which may not be less than 5 years and not more than 40 years.” 21 U.S.C.
§ 841(b)(1)(B). Section 846 provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same penalties as
those prescribed for the offense, the commission of which was the object of the attempt or
conspiracy.” 21 U.S.C. § 846.

                                             3
cooperation with the government continued through the date of sentencing, Amponsah

would be entitled to a 2-level reduction for acceptance of responsibility pursuant to §

3E1.1(a); (3) based on his willingness to plead guilty, Amponsah would be entitled to an

additional 1-level reduction for acceptance of responsibility pursuant to § 3E1.1(b); (4)

because he did not play an aggravating or a mitigating role in the offense, there would be

neither an increase nor a decrease in offense level pursuant to § 3B1.1 or § 3B1.2,

respectively; and (5) based on the foregoing, the total offense level would be 29.

       In addition, the plea agreement provided that the government retained “sole

discretion” to determine whether Amponsah fully complied with the terms of the

agreement and to seek a reduction for substantial assistance pursuant to § 5K1.1. The

plea agreement further stated that “[t]he sentence to be imposed is within the sole

discretion of the sentencing judge” and the government “cannot and does not make any

representation or promise as to what guideline range will be found applicable . . . or as to

what sentence Yaw Amponsah will ultimately receive. ” (Appellant’s Appx. at 91.)

       At a plea hearing held on December 19, 2001, the District Court engaged

Amponsah in an extensive colloquy concerning the terms of the plea agreement and the

binding nature of the stipulations set forth therein. After affirming that he entered into the

agreement knowingly and voluntarily, Amponsah pled guilty. He was thereafter

continued on release under the supervision of the United States Probation Office pending

sentencing.

       Several significant developments took place before his sentencing. In February

                                              4
2003, Joe Mensah, a close friend of Amponsah’s, was tried on a related federal drug-

trafficking charge. Although the government interviewed Amponsah in preparation for

Mensah’s trial, federal prosecutors decided not to call Amponsah as a witness because of

his “evasiveness” during pre-trial preparation. At his trial, Mensah testified that prior to

his indictment, Amponsah tipped him off about the government’s investigation and

informed him that the government attempted to persuade him to wear a wire and record

their conversations.2 Although much of Mensah’s trial testimony was not credible, the

government believed this aspect of his testimony because, aside from government agents

involved in the investigation, Amponsah was the only individual who knew about the

wire request.

       In April 2003, after Mensah was convicted, the government confronted Amponsah

about Mensah’s trial testimony. Amponsah denied that he had informed Mensah about

the government’s investigation, but could not explain how Mensah learned about the wire

request. As a result, the government informed Amponsah that his § 5K1 letter was in

jeopardy. Several days later, Amponsah fraudulently obtained travel documents from the

Ghanian consulate in New York and, on April 23, 2003, fled to Ghana. In August 2003,

Ghanian authorities arrested Amponsah and extradited him to the United States.

       On July 25, 2005, after a three-day sentencing hearing, the District Court imposed



       2
        Amponsah’s plea agreement specifically provided that “[f]ull cooperation
includes participating, if requested, in affirmative investigative techniques, such as . . .
tape recording conversations.” (Appellant’s Appx. at 90.).

                                               5
a sentence of 155 months of imprisonment. In calculating the recommended Guidelines

range, the District Court enforced the stipulations concerning drug quantity set forth in

the plea agreement, imposed a 2-level enhancement for obstruction of justice, denied

Amponsah reductions for minor role and acceptance of responsibility, and found him

ineligible for safety valve relief. In addition, the District Court concluded that the

government did not act in bad faith by declining to move for a § 5K1.1 reduction for

substantial assistance. Based on the District Court’s calculations, Amponsah was

assigned a total offense level of 34 which, when combined with a criminal history

category of I, resulted in a recommended Guidelines range of 151 to 188 months of

imprisonment.3

       Turning to the sentencing factors set forth in 18 U.S.C. § 3553(a), the District

Court noted that a sentence at the upper end of the recommended Guidelines range was

justified. The District Court nevertheless credited Amponsah for his partial cooperation

with the government and sentenced him at the lower end of the range. In addition, as a

special condition of supervised release, the District Court required Amponsah to

cooperate with immigration officials to resolve any issues related to his status in the

United States and instructed him not to re-enter the country if deported unless he obtained

the written permission of the United States Attorney General. The District Court entered


       3
         Between the time Amponsah pleaded guilty and his sentencing, the Supreme
Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), which rendered
the Guidelines advisory. In calculating Amponsah’s advisory sentencing range, the
District Court applied the 2004 version of the Guidelines.

                                              6
the judgment of conviction and sentence on July 28, 2005. This timely appeal followed.

                 II. JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a)(1). See

United States v. Cooper, 437 F.3d 324, 327 (3d Cir. 2006). When reviewing a district

court’s imposition of sentence, we review its factual findings for clear error. United

States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). We exercise plenary review

over a district court’s interpretation of the Guidelines and its resolution of constitutional

issues. McKoy, 452 F.3d 234, 236 (3d Cir. 2006). We review the ultimate sentence

imposed for reasonableness. Cooper, 437 F.3d at 327.

                                      III. ANALYSIS

       We first address the issues relating to the District Court’s Guidelines calculations,

and then briefly address the constitutional claims raised in Amponsah’s pro se

supplemental brief.4



       4
           After counsel filed his opening brief on appeal, Amponsah filed a pro se
“Motion for Permission to File A Supplemental Brief” which asserts additional arguments
not raised in counsel’s brief. Although a party represented by counsel is typically
prohibited from filing a pro se brief, Third Circuit Local Appellate Rule 31.3 provides
that “[c]ounsel may choose to include the arguments in his or her brief or may in unusual
circumstances file a motion to file a supplemental brief, if appropriate.” 3d Cir. R. 31.3.
Here, counsel filed a “Motion to File Supplemental Brief,” adopting the arguments set
forth in the pro se brief. We granted both motions. In addition, on February 23, 2007,
Amponsah filed a pro se motion entitled “Permission to File Motion to Supplement Brief”
based on Cunningham v. California, 127 S. Ct. 856 (2007), which counsel subsequently
adopted on March 14, 2007. Although we note that Rule 28(j) of the Federal Rules of
Appellate Procedure allows a party to submit a letter citing supplemental authority
without first seeking permission of the Court, we nevertheless granted the motion.

                                               7
                     A. The District Court’s Guidelines Calculation

       Amponsah challenges the District Court’s (1) calculation of his base offense level;

(2) rulings on obstruction of justice and acceptance of responsibility; (3) denial of safety

valve relief; and (4) determination that the government’s refusal to move for a § 5K1.1

reduction for substantial assistance was not in bad faith. We address each of these

arguments in turn.

                                    1) Base Offense Level

       Amponsah’s base offense level corresponds to the 5 to 15 kilograms of cocaine

stipulated to by the parties in the plea agreement. He contends, however, that the factual

record was insufficient to support the stipulation. We disagree. At his sentencing

hearing, the District Court noted that “[o]f course, the Court needs to satisfy itself that the

quantity to which the parties had stipulated . . . [has] an adequate factual basis and that the

quantity has been calculated correctly.” (Appellee’s Appx. at 97.) Amponsah correctly

points out that the District Court stated that the drug quantity set forth in the pre-sentence

investigation report (“PSR”) was “not quite sufficient to provide the factual basis for a

finding of 5 to 15 kilograms because it refers to the two to three kilograms that Mr.

Amponsah carried in his courier trip. It does not refer to . . . the additional quantities that

were carried by other couriers recruited by Amponsah.” The District Court did not,

however, end its analysis there. (Appellee’s Appx. at 97-98.)

       Rather, the District Court went on to observe that Amponsah admitted in his plea

allocution that he (1) served as a courier in the 1996 drug-smuggling trip, and (2)

                                               8
recruited two couriers who later smuggled additional quantities of cocaine. In addition,

the government proffered the testimony of a convicted member of the Garba Organization

which would purportedly establish that the 1996 courier trip involved 2 to 3 kilograms of

cocaine, and that the two couriers Amponsah recruited smuggled an additional 3

kilograms of cocaine each. Amponsah declined the District Court’s invitation to conduct

an evidentiary hearing on this issue. Accordingly, the District Court credited the

government’s proffer and concluded that there was sufficient evidence in the record to

establish that the offense involved at least 8 to 9 kilograms of cocaine, well within the 5

to 15 kilogram range stipulated to in the plea agreement.5 Based on the foregoing, we fail

to see how the District Court’s drug quantity determination was clearly erroneous.6

       5
        In attributing to Amponsah the additional 6 kilograms of cocaine smuggled by
the two couriers, the District Court noted that § 1B1.3 of the Guidelines provides, in
relevant part, that “in the case of jointly undertaken criminal activity,” a defendant’s base
offense level shall be determined on the basis of “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.” U.S.
Sentencing Guidelines Manual § 1B1.3(a).
       6
         In his pro se supplemental brief, Amponsah asserts, for the first time, that the
District Court’s reliance on his proffer statements to determine drug quantity violates §
1B1.8 of the Guidelines, which provides, in relevant part:
       Where a defendant agrees to cooperate with the government by providing
       information concerning unlawful activities of others, and as part of that
       agreement the government agrees that self-incriminating information
       provided pursuant to that agreement will not be used against the defendant,
       then such information shall not be used in determining the applicable
       guideline range, except to the extent provided in the agreement.
U.S. Sentencing Guidelines Manual § 1B1.8(a). The government correctly points out
that, in the plea agreement, the government expressly reserved the right to provide the
District Court with all information relevant to sentencing, “including information
provided by Yaw Amponsah before and after signing [the plea] agreement and protected

                                              9
                2) Obstruction of Justice and Acceptance of Responsibility

       Because of Amponsah’s flight to Ghana, as well as the evidence indicating that he

warned Joe Mensah about the government’s investigation, the District Court imposed a 2-

level increase for obstruction of justice pursuant to § 3C1.1, and denied a 3-level

reduction for acceptance of responsibility pursuant to § 3E.1.1. We discern no error in

either of the District Court’s rulings.

       Section 3C1.1 provides that a two-level enhancement is appropriate where the

defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or sentencing

of the . . . offense.” U.S. Sentencing Guidelines Manual § 3C1.1. Application Note 4 to

§ 3C1.1 states that “escaping or attempting to escape from custody before trial or

sentencing” is an example of the type of conduct to which the enhancement applies. U.S.

Sentencing Guidelines Manual § 3C1.1, cmt. n.4.

       Section 3E1.1(a) allows a district court to grant a 2-level decrease in offense level

if “defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.

Sentencing Guidelines Manual § 3E1.1(a). If a defendant receives such a reduction, he is

eligible for an additional 1-level decrease if the offense level (prior to application of §

3E1.1(a)) is greater than 16. U.S. Sentencing Guidelines Manual § 3E1.1(B).


by U.S.S.G. 1B1.8.” (Appellant’s Appx. at 91.) In any event, as set forth above, the
District Court’s drug quantity determination was not based solely on Amponsah’s plea
allocution.


                                              10
Application Note 4 to § 3E1.1 provides that except in “extraordinary circumstances,”

conduct resulting in an enhancement for obstruction of justice “ordinarily indicates that

the defendant has not accepted responsibility for his criminal conduct.” U.S. Sentencing

Guidelines Manual § 3E1.1, cmt. n.4.

       Assuming for purposes of its § 3C1.1 analysis that Amponsah’s motivation for

fleeing the United States was fear of retaliation from members of the Garba Organization,

the District Court concluded that an enhancement was nevertheless warranted. Given that

it is uncontested that Amponsah fled to Ghana, we conclude that the enhancement was

entirely reasonable. See e.g., United States v. Muro, 357 F.3d 743, 745 (8th Cir. 2004)

(“Although the district court found credible [defendant’s] claim of fear for his safety, it

reasonably concluded that [defendant] willfully chose the course of conduct that

obstructed justice instead of choosing other options, such as contacting [the government]

to report the threat.”). Likewise, we do not think it was clearly erroneous for the District

Court to conclude that the record evidence did not establish “extraordinary

circumstances” that would justify a reduction for acceptance of responsibility. See, e.g.,

United States v. Miller, 77 F.3d 71, 77 (4th Cir. 1996) (“Accepting as true, for purposes

of this appeal, [defendant’s] statement that he fled out of fear for his life, such fear does

not excuse [his] conduct.”).

       In sum, we are not persuaded that the District Court’s rulings with respect to

obstruction of justice and acceptance of responsibility were improper.

                                    3) Safety Valve Relief

                                              11
       Section 5C1.2, the so-called “safety valve” provision of the Guidelines, allows a

district court to impose a sentence below the statutory mandatory minimum, provided the

defendant meets certain specific requirements. In this case, the District Court found

Amponsah ineligible for safety valve relief, because he failed to satisfy the requirement

that “not later than the time of the sentencing hearing, the defendant has truthfully

provided to the Government all information and evidence the defendant has concerning

the offense or offenses that were part of the same course of conduct or of a common

scheme or plan.” See U.S. Sentencing Guidelines Manual § 5C1.2(a)(5).

       Amponsah argues that the District Court did not identify any useful information

that he could have provided to the government and, therefore, should have granted him a

safety valve reduction. Amponsah’s argument is contradicted by the record, which shows

that he provided the government with vague and contradictory information concerning

Joe Mensah’s drug-trafficking activities. We therefore find no error in the District

Court’s conclusion that:

       The fact that he was not consistent concerning what he knew about [Joe]
       Mensah’s criminal activity and the fact that he did nothing to correct his
       inconsistent responses to the Government in time for the Government either
       to make use of Mr. Amponsah’s information at Mensah’s trial or even down
       to today . . . leads this Court to conclude that Mr. Amponsah is not entitled
       to the safety valve.

(Appellee’s Appx. at 310.)

                       4) § 5K1.1 Motion for Substantial Assistance

       Amponsah argues that the District Court relied on inadmissible hearsay in


                                             12
determining that the government did not act in bad faith when it refused to move for a §

5K1.1 reduction for substantial assistance. Specifically, Amponsah argues that the

District Court improperly relied on the statement of Special Agent Tim Mahoney of the

United States Immigration and Customs Enforcement that Joe Mensah testified at his trial

that Amponsah warned him about the government’s investigation. Amponsah’s hearsay

argument is entirely meritless, as it is well-settled that “[h]earsay is fully admissible at a

sentencing hearing, so long as it has sufficient indicia of reliability.” United States v.

Brigman, 350 F.3d 310, 315 (3d Cir. 2003); see also U.S. Sentencing Guidelines Manual

§ 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing

determination, the court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the information

has sufficient indicia of reliability to support its probable accuracy.”). Having reviewed

the record, we conclude that the District Court did not err in concluding that Agent

Mahoney’s testimony was sufficiently reliable so as to provide a reasonable basis for the

government’s decision not to move for a § 5K1.1 reduction in sentence.

    B. Additional Arguments Raised in Amponsah’s Supplemental Pro Se Brief

       In his pro se supplemental brief, Amponsah argues that the sentence imposed

violates his Sixth Amendment rights under Booker. In addition, he contends that the

District Court improperly ordered him deported. Both arguments patently lack merit.

                                     1) Booker Argument

       In United States v. Booker, the Supreme Court held that the mandatory nature of

                                              13
the Guidelines “violated the Sixth Amendment because it made sentence enhancement

dependent on facts not proved to a jury beyond a reasonable doubt.” McKoy, 452 F.3d at

239. The Supreme Court remedied this constitutional infirmity by holding that the

Guidelines are advisory. Id. Accordingly, under the current advisory Guidelines regime,

a district court may “impose a sentence anywhere under [the statutory] maximum without

. . . proof beyond a reasonable doubt.” Grier, 475 F.3d at 565.

       Amponsah’s Booker argument is defective because, contrary to the assertions set

forth in his pro se supplemental brief, the District Court did not treat the Guidelines as

mandatory. Rather, the District Court was well aware of the advisory nature of the

Guidelines and sentenced Amponsah after first calculating the recommended Guidelines

range, and then exercising its sentencing discretion under § 3553(a).7 The 155-month

sentence imposed by the District Court, which was at the low end of the recommended

range, was well below the maximum 40 years of imprisonment provided for by statute.

We therefore fail to see how the sentence raises any Sixth Amendment concerns. Indeed,

Amponsah’s entire Sixth Amendment argument rests on the mistaken assertion that the

maximum sentence for the offense to which he pleaded guilty was five years of




       7
         In arguing that his sentence was unreasonable, Amponsah does not contend that
the District Court improperly applied the sentencing factors set forth in § 3553(a), but
rather, focuses exclusively on the District Court’s Guidelines calculations. We
nevertheless note that our review of record shows that the District Court carefully and
thoroughly applied all of the sentencing factors set forth in § 3553(a), including the
recommended Guidelines range, in reaching its sentencing determination.

                                             14
imprisonment.8

                                    2) Immigration Status

         Amponsah’s argument that the District Court “improperly ordered his deportation”

likewise lacks merit. In setting forth the special conditions of supervised release, the

District Court ordered Amponsah to “cooperate with the immigration services to resolve

his status in the United States” and, if deported, prohibited him from reentering the

country without the written permission of the United States Attorney General.

(Appellee’s Appx. at 350.) The government is correct that these conditions of supervised

release were entirely proper. See, e.g., United States v. Tinoso, 327 F3d. 864, 866 n.2

(9th Cir 2003) (noting that several Courts of Appeals have held that district courts may, as

a condition of supervised release under 18 U.S.C. § 3583(d), order a criminal defendant to

surrender to immigration officials upon completion of a term of imprisonment and to

remain outside of the United States if deported).

                                    IV. CONCLUSION

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




         8
          The Supreme Court decision in Cunningham v. California, which Amponsah
relies on in his Rule 28(j) letter, is also unavailing. Cunningham, which involved
California’s determinate sentencing law, presented a set of issues entirely inapposite to
this case.

                                             15
