2. Failure to object to the use of relevant conduct at sentencing
The second claim which Agunloye makes against Martin is that he failed to object to the court considering relevant conduct when calculating Agunloye's base offense level. Agunloye argues that he was rightfully acquitted of count II, yet the court used evidence from count II, namely a wire transfer in the amount of $ 15,000, in calculating the offense level used to determine his sentence. As a result, Agunloye received a one-point enhancement for funds involving more than $ 100,000. Agunloye's claim is rejected for the reasons set forth below.
In order to determine the base offense level for conspiracy to launder money, a court must apply "the base offense level from the guideline for [money laundering], plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty." U.S.S.G. § 2X1.1(a). Section 2S1.1(b)(2) of the guidelines provides for "specific offense characteristic" increases from the base level if the value of the laundered funds exceeded $ 100,000. U.S.S.G. § 2S1.1(b)(2). In the conspiracy context, such a specific offense characteristic is determined on the basis of "all reasonably foreseeable acts ... of others in furtherance of the jointly undertaken criminal activity ...." U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, even though Agunloye was acquitted of count II, the court can use the amount for which he was charged in count II when calculating the base offense level. See U.S.S.G. § 1B1.3, cmt. n.10 ("Conduct that is ... not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.").
The court correctly found that, pursuant to the relevant conduct provisions of the Sentencing Guidelines, the conspirators' laundering activities involved more than the $ 100,000 and a one-point enhancement was warranted. Therefore, Agunloye's claim fails.
3. Failure to object to high guideline sentence
Agunloye's last argument deals with the court's application of the Sentencing Guidelines. Agunloye argues that Martin violated a "duty" when he failed to object to Agunloye's sentence which was in the upper end of the permitted range. The court rejects this argument for the reasons set forth below.
Section 2255 generally does not authorize collateral challenges to a district court's application of the guidelines. See Scott v. United States, 997 F.2d 340, 341-43 (7th Cir. 1993) ("Only extraordinary circumstances ... coupled with "cause" for not taking a direct appeal -- even call for inquiry."). Section 2255 finds extraordinary circumstances when "the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. Agunloye alleges none of these. Therefore, this sentencing argument is not cognizable on a § 2255 motion.
For the foregoing reasons, the court denies petitioner David Agunloye's motion under 28 U.S.C. § 2255.
Date: MAR 31 1998
James H. Alesia
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the court denies petitioner David Agunloye's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. Section 2255.