United States v. Olaseinda

UNPUBLISHED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. 96-4576
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)
Submitted: May 6, 1997
Decided: May 15, 1997
Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Beth M. Farber, Branch
Chief, Greenbelt, Maryland, for Appellant. 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Unpublished opinions are not binding precedent in this circuit.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, 18 U.S.C.A. § 1029(a)(1) (West Supp. 1997). He
was sentenced to a term of 30 months incarceration. Olaseinda
appeals his conviction, alleging that he was denied a fair trial because
the district court failed to dismiss the entire jury venire or to poll the
venire about the effect on each of them of a prospective juror's com-
ment during voir dire. Olaseinda also appeals his sentence on the
ground that the district court erred in departing above the guideline
range pursuant to USSG § 4A1.3* without giving him reasonable
notice. We affirm the conviction but vacate the sentence and remand
for resentencing.
Before empaneling the jury, the district court conducted a thorough
inquiry of the prospective jurors to determine whether any of them
had prior experiences which would make it difficult to decide the case
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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impartially. One of the prospective jurors, Ms. Cain, had been a juror
in three previous trials. When the court asked whether her experiences
as a juror would affect her ability to be impartial, she answered yes,
and said she felt "that if someone has gotten this far there's probably
enough evidence to convict them." The district court responded that
every juror must follow the court's "very strong instruction . . . that
a defendant begins a criminal trial with a clean slate."
At the end of the voir dire, the district court asked whether the
attorneys wanted any other questions asked; none were requested.
After the district court struck Ms. Cain for cause, Olaseinda's attorney
asked for a new jury panel. The court denied the motion. Before trial
began, the court instructed the jury at some length that the defendant
was presumed innocent and that the government had the burden of
proving guilt beyond a reasonable doubt.
Olaseinda contends that the court failed to ensure that no members
of the jury were prejudiced against him by Ms. Cain's comment. He
argues that the court should have either struck the entire venire or
questioned the prospective jurors about the effect of Ms. Cain's com-
ment. We find that Olaseinda's right to a fair trial was adequately pro-
tected. The district court properly questioned and instructed the
prospective jurors. The decision not to ask additional questions after
Ms. Cain's comment and not to dismiss the jury venire was within the
court's discretion. See United States v. Tegzes , 715 F.2d 505, 507
(11th Cir. 1983).
Following Olaseinda's conviction, the probation officer calculated
his guideline range as 18-24 months and made no recommendation
concerning a departure. At the sentencing hearing, the government
recommended a sentence at the top of the range, but did not ask for
a departure. The district court, however, departed upward from crimi-
nal history category III to category IV and imposed a sentence of 30
months, the top of the new guideline range.
In Burns v. United States, 501 U.S. 129, 138 (1991), the Supreme
Court held that a sentencing court may not depart upward for a reason
not identified in the presentence report or a government motion as a
possible ground for departure without first giving the defendant rea-
sonable notice that it is considering departure on that specific ground.
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See also United States v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995);
United States v. Maxton, 940 F.2d 103, 106 (4th Cir. 1991). Because
Olaseinda received no notice of a possible departure, Burns requires
that he be resentenced.
We therefore affirm Olaseinda's conviction, but vacate his sen-
tence and remand for resentencing. On remand, if the district court
again wishes to depart, it should give the parties reasonable notice
that it is considering a departure and the ground on which it may
depart. We express no view on the propriety of a departure. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART
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