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April 17, 2001


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


Granting the Defendant's Motion for Reconsideration of Sentence


Mr. Opeyemi M. Akintomide last appeared before this court in December 1997 for sentencing on a drug-related offense. Since then, his case has taken a number of procedural turns through the D.C. Circuit. Mr. Akintomide has now returned to this court on remand from the Court of Appeals for reconsideration of his 1997 sentence. In the interest of clarity, the court will briefly describe the procedural history of the case before addressing the merits of Mr. Akintomide's motion for reconsideration


On June 26, 1997, a grand jury returned an indictment charging the defendant with Unlawful Possession with Intent to Distribute 500 Grams of Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). On August 15, 1997, this court denied the defendant's motion to suppress tangible evidence and post-arrest statements. See Tr. of Mot. Hr'g dated Aug. 15, 1997 ("Tr. I") at 31. Thereafter, the defendant entered a plea of guilty to the charged offense. See Tr. of Plea Hr'g dated Aug. 20, 1997 ("Tr.II") at 2. On August 21, 1997, having learned that the drug involved in the offense was heroin, not cocaine, the grand jury returned a superseding indictment charging the defendant with Unlawful Possession and Intent to Distribute 100 Grams or More of Heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(i). The defendant pleaded guilty to this charge on September 8, 1997.

On December 3, 1997, the court sentenced the defendant to 78 months in prison, 5 years of supervised release, and a special assessment of $100.00. The defendant immediately appealed to the D.C. Circuit on the ground that he received ineffective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution. To this end, the defendant advanced two arguments: first, that his attorney had failed to present adequate evidence at the suppression hearing; and second, that his attorney had failed to request a reduction in his offense level under section 3B1.2 of the U.S. Sentencing Guidelines ("U.S.S.G.").*fn1

On April 22, 1999, a three-judge panel of the D.C. Circuit rejected the defendant's claim that he had received ineffective assistance of counsel at the suppression hearing. On that same day, the full Court sua sponte ordered an en banc rehearing of the defendant's second claim, namely, whether the failure to request a sentence reduction under U.S.S.G. § 3B1.2 constituted ineffective assistance of counsel. Before the rehearing took place, however, the government changed its position on the proper scope of section 3B1.2. Specifically, the government repudiated its earlier position that the defendant was per se ineligible for a downward adjustment under section 3B1.2. Instead, the government argued that there was no reasonable likelihood that the defendant, who was held accountable only for the drugs he carried, would have been able to demonstrate that he was entitled to a downward sentence adjustment under section 3B1.2.

As a result of the government's change in position, the full en banc panel of the Court of Appeals returned the case to the original three-judge panel. The panel then remanded the case to this court for "reconsideration in light of the government's changed position." In response, on April 30, 2000, this court ordered the parties to submit memoranda regarding defense counsel's failure to request a downward adjustment pursuant to U.S.S.G. § 3B1.2.


A. The Offense

On June 2, 1997, Officer Barbara Lyles, a plainclothes police officer with the D.C. Metropolitan Police Department ("MPD"), approached Mr. Akintomide in the Greyhound Bus Station in Northeast Washington, D.C. See Tr. of Mot. Hr'g dated Aug. 14, 1997 ("Tr.III") at 8-10. Mr. Akintomide had just stepped off a bus arriving from Cleveland, Ohio. See id. Officer Lyles identified herself as a police officer and explained that she was speaking to bus passengers to determine whether they were carrying drugs or guns. See id. at 12-13. Mr. Akintomide, who appeared nervous, told Officer Lyles that Washington, D.C. was his final destination but that he did not know the name of his hotel or how long he intended to stay. See id. at 13, 34-35.

Officer Lyles then conducted a consent search of Mr. Akintomide's bag and retrieved $1,000 in cash and six "hard object[s] that had red pepper or cayenne pepper around [them]." See id. at 12, 14, 18, 21-22. Aware that red pepper and cayenne are often used to camouflage the smell of drugs from dog sniffs, Officer Lyles confirmed that the six objects contained narcotics and signaled for the other members of the MPD drug-interdiction unit to arrest Mr. Akintomide. See id. at 14.

At the police station, the defendant waived his Miranda rights and confessed that he was transporting narcotics to Washington, D.C. at the request of a man from Chicago named Babatunde. See id. at 69. The defendant explained that in June 1997, Babatunde — who was his mother's boyfriend — asked him to travel to Cleveland to pick up a package. See id. Babatunde took the defendant to the bus station in Chicago, bought him a ticket to Cleveland, and placed him on the bus. See id. Babatunde instructed the defendant that he was to meet an individual named Olatunde, whom the defendant did now know, outside the Cleveland bus station. See PSR ¶ 7. In accordance with these instructions, the defendant met Olatunde outside the bus station. See id. Olatunde, who was wearing "flashy clothes" and driving a "flashy car," gave the defendant $1,000 in cash and a black tote bag, and instructed him to deliver the bag to an unidentified person at the D.C. Greyhound Station. See id. The defendant claimed that he did not know what the bag ...

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