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March 3, 1999


The opinion of the court was delivered by: Katz, Senior District Judge.


Abdul Salau Ogembe pled guilty before this court to one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371 and is now before the court to be sentenced. Mr. Ogembe now requests a downward departure pursuant to U.S.S.G. § 5K2.0 for several factors that he argues were inadequately considered by the Sentencing Commission in formulating the Sentencing Guidelines.


Ordinarily, a defendant must be sentenced within the ranges established in the Sentencing Guidelines unless the court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). As the Supreme Court explained in Koon v. United States, 518 U.S. 81, 94, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Sentencing Commission established guidelines to apply only to a "heartland" of typical cases: "Atypical cases were not `adequately taken into consideration,' and factors that may make a case atypical provide potential bases for departure." Id. (citations omitted). Certain factors, such as the race or sex of the defendant, may never be considered as a potential basis for departure. See U.S.S.G. § 5H1.10. Other factors, however, while "discouraged" as "not ordinarily relevant to the determination of whether a sentence should be outside of the applicable guideline range," U.S.S.G. ch. 5, pt. H, intro. comment., may be considered in exceptional cases. See id.; see also Koon, 518 U.S. at 96, 116 S.Ct. 2035.

The assessment of whether a case is exceptional and thus falls outside of the heartland is a factual determination placed within the sound discretion of the sentencing court: "Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases." Koon, 518 U.S. at 98, 116 S.Ct. 2035. In this case, the court finds that none of the factors raised by Mr. Ogembe make his case sufficiently unusual as to warrant a downward departure.

Grounds for Departure

Mr. Ogembe raises five separate grounds for departure. He also argues in the alternative that the combination of these factors warrants a departure. The court will address each argument in turn.

Mr. Ogembe suggests that he has displayed an extraordinary acceptance of responsibility because "from the outset, [he] made known his desire to plead guilty, he pled guilty to his state charges, and voluntarily surrendered prior to his sentencing date, all in an effort to put his wrongdoing behind him and begin his new life. In addition, he voluntarily disclosed to the prosecution additional deposits and withdrawals for which he was responsible which the government was not aware of." Def.'s Sentencing Mem. at 3-4. He also suggests that the extra restitution that he has agreed to pay constitutes extraordinary acceptance of responsibility.

Third Circuit law permits a downward departure for extraordinary acceptance of responsibility beyond that already allowed by the downward adjustment of U.S.S.G. § 3E1.1 for "ordinary" acceptance of responsibility. See United States v. Lieberman, 971 F.2d 989, 995 (3d Cir. 1992). Such a departure is appropriate, however, only "when the circumstances of a case demonstrate a degree of acceptance of responsibility that is substantially in excess of that ordinarily present." Id. at 996. In Lieberman, the Third Circuit upheld a departure on this basis as the defendant had immediately agreed to pay restitution far beyond that which he believed he owed and met with bank officials to explain how they could detect other improper transactions in the future. See id. Similarly, in United States v. Evans, 49 F.3d 109 (3d Cir. 1995), the Third Circuit held that a district court could consider a defendant's admission of his true identity to a probation officer that would not otherwise have been discovered; it was only through this disclosure that the authorities discovered that the defendant had a prior criminal record and was wanted as fugitive in another state. See id. at 114; see also United States v. Faulks, 143 F.3d 133, 137-38 (3d Cir. 1998) (holding that defendant's agreement not to contest administrative forfeiture could be basis for downward departure when meritorious defenses were abandoned).

Mr. Ogembe's actions in the present case do not rise to the level required for a departure on this basis. The defendant has already received a three-level downward adjustment pursuant to U.S.S.G. § 3E1.1 for his acceptance of responsibility, and this adequately rewards the defendant for his early surrender and his guilty plea. The disclosure of the additional accounts to the government is a closer call, but the court cannot say on the record before it that the disclosure permitted the government to find accounts that it otherwise would not, nor can the court evaluate the significance of the accounts to which the defendant refers. There is also no basis to believe that the defendant agreed to the high amount of restitution in an effort to come to terms with the crime he committed rather than as the result of hard bargaining by the government. See, e.g., United States v. Leon, 2 F. Supp.2d 592, 594-95 (D.N.J. 1998) (rejecting downward departure on extraordinary acceptance of rehabilitation because evidence did not show that defendant's actions were voluntary). In short, the defendant's conduct falls in the heartland of cases contemplated by the adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.

The defendant next requests a downward departure based on his employment history. Specifically, the defendant discusses his experience at hard labor in Nigeria and the Netherlands and his steady employment history in the United States.

In general, employment history is a discouraged ground for departure. See U.S.S.G. § 5H1.5. Of course, in an unusual situation, a defendant's employment background might provide a basis for a downward departure, but such circumstances are extremely infrequent. See United States v. Higgins, 967 F.2d 841, 845-46 (3d Cir. 1992) (remanding for consideration of whether employment history and other factors qualified as extraordinary; emphasizing that such occasions will be rare); United States v. Bennett, 9 F. Supp.2d 513, 525 (E.D.Pa. 1998) (rejecting departure based on employment because defendant's history was not extraordinary).*fn1

The third basis for a departure is defendant's claim that "if [he] is sentenced to a term of imprisonment of one year or more, as a result of the instant case, he will be deported back to Nigeria" and be separated from his American wife to whom he has been married since 1997. See Def.'s Sentencing Mem. at 6. He requests a departure and a sentence of under one year to avoid this result. The court would seriously consider this basis for a departure except for its inability to discern the basis for defendant's claim that a sentence of under a year would prevent deportation. While deportation and separation from a spouse may, under the circumstances, be an excessive penalty for bank fraud with a total offense level of thirteen, the relevant immigration statute does not allow court to affect deportation through its sentencing discretion. Under the 1996 revisions to the Immigration and Nationality Act, the definition of "aggravated felony" includes any offense that "involves fraud or deceit in which the loss to the victim or victims ...

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