United States v. Olaseinda ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER O. OLASEINDA, a/k/a
Christopher Oshuntoki, a/k/a
Christopher Akintayo, a/k/a
Christopher Olaseide, a/k/a
Christopher Olatunji, a/k/a Thomas
Cuda, a/k/a Abdul Kareem, a/k/a
No. 97-4695
Akintayo Ajibike, a/k/a Ajibike Ade
Akintayo, a/k/a Timothy Anderson,
a/k/a George Bunham, a/k/a XX
Olase, a/k/a Leon Rodriques, a/k/a
Oluwule Oshuntoki, a/k/a
Gbadegesin Adeloye, a/k/a Ajibike
Akintaya, a/k/a David Johnson,
a/k/a Henry Thomas, a/k/a Adetunji
Ajibike, a/k/a Awosika Olubiyi,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-47-C)
Submitted: March 31, 1998
Decided: May 8, 1998
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James K. Bredar, Federal Public Defender, Beth M. Farber, Chief
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Helen F. Fahey, United States Attorney, Robert A. Spencer,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Christopher O. Olaseinda was convicted by a jury of five counts of
credit card fraud and was sentenced to a term of 30 months incarcera-
tion. Olaseinda appealed his conviction and his sentence. We affirmed
the conviction but vacated the sentence and remanded for resentenc-
ing because the district court departed above the guideline range pur-
suant to USSG § 4A1.3, p.s.* without giving Olaseinda reasonable
notice. See Burns v. United States, 501 U.S. 129, 138 (1991). On
remand, after the government moved for an upward departure, the dis-
trict court again departed upward from criminal history category III
to category IV and reimposed the same sentence. Olaseinda's attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), raising one issue but indicating that, in his view, there are
no meritorious issues for appeal. Olaseinda has filed a pro se supple-
mental brief raising two issues. After consideration of these issues
and a review of the record, we affirm.
_________________________________________________________________
*U. S. Sentencing Guidelines Manual (1995).
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First, we find that the district court gave Olaseinda reasonable
notice of the departure and counsel's challenge to the sentence on this
ground is without merit. In his pro se supplemental brief, Olaseinda
contests the enhancement for criminal livelihood. This issue was not
raised in the district court at either sentencing or in the first appeal
and may not be raised now. See United States v. Bell, 5 F.3d 64, 66-
67 (4th Cir. 1993) (mandate rule forecloses litigation of issues fore-
gone on appeal or waived because not raised in district court). He also
challenges the upward departure pursuant to USSG§ 4A1.3. A crimi-
nal history category which underrepresents the defendant's past crimi-
nal conduct is an encouraged basis for departure. We review for abuse
of discretion the district court's determination that the criminal his-
tory calculation did not adequately account for his conduct. See Koon
v. United States, 518 U.S. 81, ___ (1996). The district court found
that a departure was appropriate because Olaseinda had received very
light sentences for his two prior forgery convictions (probation and
ninety days in jail). Moreover, he had been deported three times and
a fourth deportation order was pending--factors which were unac-
counted for in his criminal history calculation. We therefore find that
the district court did not abuse its discretion in departing upward from
category III to category IV.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion and sentence. This court requires that counsel inform her client,
in writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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