United States v. Ogidi

23-6325-cr United States v. Ogidi UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 30th day of May, two thousand twenty-four. [4] 5 PRESENT: 6 RICHARD C. WESLEY, 7 MICHAEL H. PARK, 8 BETH ROBINSON, 9 Circuit Judges. 10 _____________________________________ [11] 12 United States of America, [13] 14 Appellee, [15] 16 v. 23-6325-cr [17] 18 Kelechi Ogidi, [19] 20 Defendant-Appellant. 21 _____________________________________ [22] 23 FOR APPELLEE: BENJAMIN D. KLEIN (Stephen J. Ritchin, on 24 the brief) Assistant United States Attorneys, 25 for Damian Williams, United States Attorney 26 for the Southern District of New York, New 27 York, NY. [28] 29 FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Federal Defenders 30 of New York, Inc. Appeals Bureau, New 31 York, NY. [32] 1 Appeal from a judgment of the United States District Court for the Southern District of 2 New York (Seibel, J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Defendant-Appellant Kelechi Ogidi was convicted of one count of being a felon in 6 possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). The district court sentenced him to 7 51 months’ imprisonment—19 months below the bottom of a Sentencing Guidelines range of 70 8 to 87 months’ imprisonment. It imposed Ogidi’s sentence consecutive to any sentence received 9 for state charges that were pending at the time. Ogidi now challenges the constitutionality of his 10 conviction and the reasonableness of his sentence. We assume the parties’ familiarity with the 11 underlying facts, procedural history of the case, and issues on appeal. 12 I. The Constitutionality of Ogidi’s Conviction 13 Ogidi argues that the Supreme Court’s decision in New York State Rifle & Pistol 14 Association, Inc. v. Bruen, 597 U.S. 1 (2022), rendered § 922(g)(1) unconstitutional. We review 15 this argument for plain error because Ogidi did not raise it below. See United States v. Le, 902 16 F.3d 104 , 109 (2d Cir. 2018) (reviewing an unpreserved argument that a statute is unconstitutional 17 for plain error). “For an error to be plain, it must, at a minimum, be clear under current law. We 18 typically will not find such error where the operative legal question is unsettled, including where 19 there is no binding precedent from the Supreme Court or this Court.” United States v. Whab, 355 20 F.3d 155 , 158 (2d Cir. 2004) (cleaned up). At this time, no binding precedent holds that 21 § 922(g)(1) is unconstitutional. There was thus no plain error. See United States v. Brillon, No. [2] 1 22-2956-cr, 2024 WL 392949 , at *1 (2d Cir. Feb. 2, 2024) (summary order) (rejecting a 2 constitutional challenge to § 922(g)(1) under plain-error review). 3 II. The Reasonableness of Ogidi’s Sentence 4 Ogidi also challenges his sentence on several grounds. First, he argues that imposing the 5 sentence consecutive to, rather than concurrent with, any state sentence was procedurally 6 unreasonable because the district court determined that his pending state charges involved 7 “relevant conduct” but then overlooked § 5G1.3(c) of the Sentencing Guidelines in deciding 8 whether to impose a consecutive or concurrent sentence. See U.S.S.G. § 5G1.3(c) (2021) (“If . . . 9 a state term of imprisonment is anticipated to result from another offense that is relevant conduct 10 to the instant offense . . . the sentence for the instant offense shall be imposed to run concurrently 11 to the anticipated term of imprisonment.”); see also United States v. Coppola, 671 F.3d 220 , 252 12 (2d Cir. 2012) (treating a challenge to the district court’s decision under § 5G1.3 as one challenging 13 procedural reasonableness). 14 Ogidi has not preserved this argument. His position below was that the district court 15 should impose a concurrent sentence even though he maintained that the pending state charges 16 were not related conduct. He did not object to the district court’s consecutive sentence based on 17 § 5G1.3(c). We thus review the district court’s decision for plain error. See United States v. 18 Smith, 949 F.3d 60, 66 (2d Cir. 2020). Under plain-error review, Ogidi must show that: “(1) there 19 is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error 20 affected [his] substantial rights; and (4) the error seriously affects the fairness, integrity or public 21 reputation of judicial proceedings.” United States v. Moore, 975 F.3d 84 , 90 (2d Cir. 2020). [3] 1 Ogidi cannot make this showing. His argument depends largely on the district court’s 2 passing statements at sentencing, including that Ogidi’s firearm “was discovered because it was 3 being used in connection with another crime.” App’x at 45. But the district court at other points 4 during the hearing stated that it did not view Ogidi’s pending state charges as relevant conduct, 5 including when the district court said that it had “not considered” and was “not taking into account” 6 the state charges. Id. at 44, 48-49 . It is thus not “clear or obvious” that the district court 7 considered the state charges to be relevant conduct and so it is not “clear or obvious” that it should 8 have sentenced Ogidi concurrent with any future state sentence. 9 Ogidi’s remaining arguments go to substantive reasonableness, which we review under a 10 “deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 11 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Ogidi first argues that 12 the district court did not give sufficient weight to various aspects of his background and 13 characteristics. But the district court in fact considered both in light of Ogidi’s criminal history 14 and concluded that they “cut both ways.” App’x at 45. “The particular weight to be afforded 15 aggravating and mitigating factors is a matter firmly committed to the discretion of the sentencing 16 judge, with appellate courts seeking to ensure only that a factor can bear the weight assigned it 17 under the totality of circumstances in the case.” United States v. Broxmeyer, 699 F.3d 265 , 289 18 (2d Cir. 2012) (cleaned up). 19 Second, Ogidi argues that the district court overlooked the conditions of his prior 20 imprisonment when crafting its sentence. But Ogidi argued below that those conditions merited 21 a sentence reduction, and we “entertain[] a strong presumption that the sentencing judge has 22 considered all arguments properly presented to her, unless the record clearly suggests otherwise.” [4] 1 United States v. Cossey, 632 F.3d 82, 87 (2d Cir. 2011) (per curiam). At any rate, the record 2 shows that the district court did consider the conditions of Ogidi’s imprisonment, which it 3 explicitly referenced at sentencing. The sentence was substantively reasonable. 4 *** 5 We have considered Ogidi’s remaining arguments and find them to lack merit. For the 6 foregoing reasons, the judgment of the district court is AFFIRMED. 7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court