United States v. Joseph Osiomwan , 593 F. App'x 194 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4833
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH OSIOMWAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cr-00265-WDQ-1)
Submitted: November 25, 2014 Decided: December 5, 2014
Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gary A. Ticknor, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James Thomas Wallner,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a bench trial, the district court convicted
Joseph Osiomwan of conspiracy to distribute and possess with
intent to distribute heroin, in violation of 21 U.S.C. § 846
(2012), and possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a) (2012). The district court
sentenced Osiomwan to 121 months of imprisonment and he now
appeals. For the following reasons, we affirm.
Osiomwan first argues on appeal that the district
court erred in failing to suppress the evidence authorities
obtained from a warrantless search of his cell phones seized
incident to his arrest. As Osiomwan failed to raise this
argument before the district court, we review this issue for
plain error. See United States v. Lighty, 616 F.3d 321, 365
(4th Cir. 2010). To establish plain error, Osiomwan must
establish an error that was plain and that affected his
substantial rights. Id. An error is not plain if there is no
controlling precedent from the Supreme Court or this court
directly resolving the contested issue. United States v.
Beasley, 495 F.3d 142, 149 (4th Cir. 2007). We have thoroughly
reviewed the record and the relevant legal authorities and
conclude that Osiomwan has failed to demonstrate that the
district court committed plain error.
2
Osiomwan next argues that the district court erred in
accepting trial counsel’s stipulation that one of the
Government’s witnesses was an expert without ascertaining
whether Osiomwan consented to the stipulation. Osiomwan,
however, did not raise this objection in the district court and
therefore we review this issue as well for plain error. See
United States v. Baptiste, 596 F.3d 214, 222 (4th Cir. 2010).
We conclude Osiomwan has failed to meet this standard. See
Beasley, 495 F.3d at 149.
Osiomwan next challenges the sentence as procedurally
and substantively unreasonable, arguing that the court
improperly considered unreliable evidence and acquitted conduct
at sentencing. We review a sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); see also United States v.
Layton, 564 F.3d 330, 335 (4th Cir. 2009). In so doing, we
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2012)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 552
U.S. at 51. We presume on appeal that a sentence within a
properly calculated advisory Guidelines range is reasonable.
3
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see
Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding
appellate presumption of reasonableness for within-Guidelines
sentence).
At sentencing, the government need only establish drug
quantities by a preponderance of the evidence. United States v.
Brooks, 524 F.3d 549, 560 n.20, 562 (4th Cir. 2008); United
States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). “[W]here
there is no drug seizure or the amount seized does not reflect
the scale of the offense, the court shall approximate the
quantity of the controlled substance.” United States v.
D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994) (internal quotation
marks omitted). We afford the district court “broad discretion
as to what information to credit in making its calculations.”
Cook, 76 F.3d at 604 (internal quotation marks omitted).
In addition, “[w]hen determining facts relevant to
sentencing, such as an approximated drug quantity, the
Sentencing Guidelines allow courts to consider relevant
information without regard to its admissibility at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy.” United States v.
Crawford, 734 F.3d 339, 342 (4th Cir. 2013) (internal quotation
marks omitted), cert. denied, 134 S. Ct. 1528 (2014). We
conclude that the testimony on which the court relied in
4
determining the drug weight for sentencing purposes had
sufficient indicia of reliability. The court also did not err
in considering acquitted conduct proved by a preponderance of
the evidence in determining the applicable Guidelines range,
within the statutory penalty range established by the verdict.
See United States v. Lawing, 703 F.3d 229, 241 (4th Cir. 2012),
cert. denied, 133 S. Ct. 1851 (2013).
Accordingly, we affirm the judgment of the district
court. We deny Osiomwan’s motion to file a pro se supplemental
brief. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
5