United States v. Izegwire

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4570
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IMOUDU IZEGWIRE, a/k/a David, a/k/a Imoudu Igewire,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr.,
District Judge. (2:05-cr-00153-WDK-JEB-3)
Submitted: January 14, 2010 Decided: March 22, 2010
Before TRAXLER, Chief Judge, and SHEDD and DAVIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Dana J.
Boente, Acting United States Attorney, Alexandria, Virginia,
Darryl J. Mitchell, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Imoudu Izegwire appeals from his jury convictions for
conspiracy to distribute and possess with intent to distribute
one kilogram or more of heroin, in violation of 21 U.S.C.A.
§§ 846 & 841(a)(1) (West 1999) (Count I), and conspiracy to
launder monetary instruments, in violation of 18 U.S.C.A.
§§ 1956(h) & 1956 (West Supp. 2009) (Count II), as well as from
the 120-month concurrent sentences imposed by the district court
for these convictions. We affirm.
I.
On November 18, 2005, a federal grand jury indicted
Izegwire and two of his co-conspirators, Tolulope John and
Fatoumata Toure, on one count of conspiracy to distribute and
possess with intent to distribute heroin, and one count of
conspiracy to launder monetary instruments. 1 Izegwire was
arrested and made his initial appearance on March 8, 2006.
John, who had left the United States in late 2000, was living in
the United Kingdom. He was arrested there on March 1, 2006, but
successfully fought extradition to the United States until March
8, 2007. He subsequently pled guilty prior to trial. Toure was
1
John and Toure were also charged with numerous substantive
money laundering offenses.
2
arrested in the United States but also pled guilty prior to
trial.
Following a series of pretrial motions, including motions
to continue filed by both Izegwire and the government, trial
commenced on February 26, 2008. On February 29, 2008, the jury
convicted Izegwire of both counts. Using a special verdict
form, the jury found that the United States had established, by
a preponderance of the evidence, “that at least one act
committed in furtherance of the alleged conspirac[ies] occurred
in the Eastern District of Virginia.” S.J.A. 178, 179-80. The
jury also found that Izegwire “conspired to distribute and/or
conspired to possess with intent to distribute . . . [s]ome
amount less than ‘100 grams’ of a mixture or substance
containing a detectable amount of heroin.” S.J.A. 179. This
finding of drug quantity resulted in a statutory maximum
sentence of 20 years imprisonment for the drug conspiracy
charge. The statutory maximum for the money laundering charge
was 10 years imprisonment.
At sentencing, the district court attributed 500 grams of
heroin to Izegwire, resulting in an offense level of 28 for the
heroin conspiracy. See U.S.S.G. § 2D1.1(c)(6) (2007). 2 With a
2
The money laundering conspiracy conviction resulted in an
offense level of 22.
3
three-level enhancement for his role in the offense, Izegwire’s
guideline range was 108 to 135 months imprisonment. The
district court sentenced Izegwire to concurrent 120-month
sentences on each count, followed by three years of supervised
release.
II.
A.
Izegwire first appeals the district court’s denial of his
motion to dismiss the indictment based upon the five-year
statute of limitations. We review de novo the trial court’s
denial of the motion. See United States v. Uribe-Rios, 558 F.3d
347, 351 (4th Cir. 2009).
Under 18 U.S.C.A. § 3282(a) (West Supp. 2009), “no person
shall be prosecuted, tried, or punished for any offense, not
capital, unless the indictment is found or the information is
instituted within five years next after such offense shall have
been committed.” In conspiracy offenses, the “statute of
limitations . . . runs from the last overt act during the
existence of the conspiracy.” Fiswick v. United States, 329
U.S. 211, 216 (1946); see also United States v. Brown, 332 F.3d
363, 373 (6th Cir. 2003). Furthermore, the conspiracy, once
established, “is presumed to continue unless or until the
defendant shows that it was terminated or he withdrew from it.”
United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986). The
4
“mere cessation of activity in furtherance of the conspiracy is
insufficient. The defendant must show affirmative acts
inconsistent with the object of the conspiracy and communicated
in a manner reasonably calculated to reach his co-conspirators.
The burden of proving withdrawal rests on the defendant.” Id
(citations omitted).
We find no error in the district court’s rejection of
Izegwire’s motion to dismiss the charges against him based upon
the statute of limitations. Izegwire and his co-conspirators
were indicted on November 18, 2005. Izegwire does not argue
that the indictment was not filed within five years of the
termination of the charged conspiracies. However, he contends
that he withdrew from the conspiracies more than five years
prior to the indictment, i.e., before November 18, 2000.
Izegwire, however, has failed to demonstrate that he withdrew
from the conspiracies prior to November 18, 2000, or that the
conspiracies ended before that date. On the contrary, the
government’s evidence indicates that neither occurred. There
was evidence that members of the conspiracies continued to
commit overt acts in furtherance of the conspiracy well after
November 18, 2000. In addition, there was evidence that between
December 1, 2000, and February 22, 2001, Izegwire directed
Helena Hollo, his girlfriend at the time, to conduct several
wire transfers of drug proceeds to John in the United Kingdom,
5
in furtherance of both the drug conspiracy and the money
laundering conspiracy. Accordingly, the district court did not
err in denying Izegwire’s motion to dismiss on this basis.
B.
Izegwire next appeals the district court’s denial of his
motion to dismiss the charges against him for improper venue and
its submission of the venue determination to the jury for its
consideration.
“[A]ny offense against the United States begun in one
district and completed in another, or committed in more than one
district, may be . . . prosecuted in any district in which such
offense was begun, continued, or completed.” 18 U.S.C.A.
§ 3237(a) (West 2000). “[A] conspiracy may be prosecuted in any
district in which the agreement was formed or in which an act in
furtherance of the conspiracy was committed.” United States v.
Gilliam, 975 F.2d 1050, 1057 (4th Cir. 1992). “To establish
venue, the government need only show that an act occurred in the
district by a preponderance of the evidence.” United States v.
Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995).
While we normally review the issue of venue de novo, see
United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001),
“[s]ubmitting the venue question to the jury is an appropriate
procedure for resolving a factual dispute relating to venue,”
United States v. Ebersole, 411 F.3d 517, 526 n.10 (4th Cir.
6
2005). Here, the jury found that the government had proven
“that at least one act committed in furtherance of [each]
alleged conspiracy occurred in the Eastern District of
Virginia.” S.J.A. 178, 179-80. This finding was supported by
the evidence. At a minimum, the government presented evidence
that a co-conspirator collected drug money from Izegwire and
another co-conspirator for John after John left the United
States, and that at least one wire transfer of drug proceeds was
sent by the co-conspirator from Alexandria, Virginia in the
Eastern District of Virginia to John in the United Kingdom.
Accordingly, the district court did not err in denying
Izegwire’s motion to dismiss the charges against him for lack of
venue or in submitting the issue to the jury for its
determination.
C.
Izegwire next appeals the district court’s denial of his
motion to dismiss the charges against him based upon an alleged
violation of the Speedy Trial Act. See 18 U.S.C.A. § 3161 (West
2000 & Supp. 2009). We review the district court’s legal
conclusions de novo and its factual findings for clear error.
See United States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir.
1996).
The Speedy Trial Act provides that the trial of a defendant
charged in an indictment “shall commence within seventy days
7
from the filing date . . . of the . . . indictment, or from the
date the defendant has appeared before a judicial officer of the
court in which such charge is pending, whichever date last
occurs.” 18 U.S.C.A. § 3161(c)(1) (West Supp. 2009). Pertinent
to the case at hand, however, the Act provides for a number of
excludable delays, including delay resulting from the granting
of a continuance based on a finding that “the ends of justice
served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” 18 U.S.C.A.
§ 3161(h)(7)(A) (West Supp. 2009). Factors to be considered in
deciding whether to grant such a continuance include the
defendant’s need for “reasonable time to obtain counsel,” for
“continuity of counsel,” and for “reasonable time necessary for
effective preparation” of counsel. 18 U.S.C.A.
§ 3161(h)(7)(B)(iv). Additional excludable periods of delay
include “delay resulting from any proceeding, including any
examinations, to determine the mental competency or physical
capacity of the defendant,” 18 U.S.C.A. § 3161(h)(1)(A), and
“delay resulting from any pretrial motion, from the filing of
the motion through the conclusion of the hearing on, or other
prompt disposition of, such motion,” 18 U.S.C.A.
§ § 3161(h)(1)(D). The time from the filing of a motion until
the conclusion of the hearing on the motion is excluded, even if
the delay in holding the hearing was not reasonably necessary.
8
See Henderson v. United States, 476 U.S. 321, 330 (1986). “In a
case involving several defendants, time excludable for one
defendant is excludable for all defendants.” United States v.
Jarrell, 147 F.3d 315, 316 (4th Cir. 1998). “There is a strong
preference for trying codefendants together as it promotes
judicial efficiency by avoiding successive trials involving the
same evidence.” United States v. Khoury, 901 F.2d 948, 972
(11th Cir. 1990). Thus, “reasonable delay attributable to the
fugitive status of a co-indictee is excludable as to those
defendants awaiting trial.” Id.
Having reviewed the record, including the numerous motions
filed by both sides that resulted in delays as well as the
extradition proceedings pursued against John, we find no
reversible error by the district court in denying Izegwire’s
motion to dismiss under the Speedy Trial Act. The district
court ordered six continuances of Izegwire’s trial, some at the
request of the defendant for various reasons, and some at the
request of the government while it was attempting the
extradition of John. In each case, the continuances and delays
were authorized by the Act as excludable periods of time and the
district court made the requisite finding that the ends of
justice served by the continuances outweighed the best interests
of the public and the defendant in a speedy trial, as required
9
by 18 U.S.C.A. § 3161(h)(7)(A). Accordingly, Izegwire is not
entitled to relief under the Speedy Trial Act.
III.
Izegwire also challenges his sentence, contending that the
district court erred in finding that he was responsible for 500
grams of heroin when the jury had made a finding that he was
responsible for less than 100 grams of heroin, and erred in
applying a three-level enhancement for his role as a manager or
supervisor.
As noted earlier, the jury returned a special verdict form
at the conclusion of the trial finding that Izegwire had
“conspired to distribute and/or conspired to possess with intent
to distribute . . . [s]ome amount less than ‘100 grams’ of a
mixture or substance containing a detectable amount of heroin.”
S.J.A. 179. This finding set the statutory maximum sentence for
the drug conspiracy at 20 years. The statutory maximum sentence
for the money laundering conspiracy was 10 years.
The district court subsequently found, based upon a
preponderance of the evidence, that Izegwire was supplied with a
total of 500 grams of heroin by his co-conspirator John and
applied a three-level enhancement for Izegwire’s role in the
offense. This resulted in a guideline sentencing range of 108
to 135 months imprisonment. The district court then imposed a
10
sentence of 120 months, which was within the guideline range and
statutory maximum for each conviction. On appeal, Izegwire
contends that the district court erred by attributing a drug
quantity to him for purposes of sentencing that exceeded the
jury’s findings on the special verdict form.
Since Apprendi v. New Jersey, drug quantities that increase
the statutory maximum sentence are elements of the offense and
thus must be charged in the indictment and submitted to the jury
for proof beyond a reasonable doubt. See 530 U.S. 466, 490
(2000). While Apprendi affects the calculation of the statutory
maximum sentence that may be imposed, it does not affect the
calculation of the applicable sentencing guideline range.
“Sentencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence, so long as
that Guidelines sentence is treated as advisory and falls within
the statutory maximum authorized by the jury’s verdict.” United
States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008), cert.
denied 129 S. Ct. 950 (2009); see also United States v. Perry,
560 F.3d 246, 258 (4th Cir. 2009) (holding that, after United
States v. Booker, 543 U.S. 220 (2005), district courts may
“continue to make factual findings concerning sentencing factors
. . . by a preponderance of the evidence” and consider acquitted
conduct when applying the guidelines in an advisory fashion).
As long as the sentence imposed does not exceed the maximum
11
sentence authorized by the jury’s verdict, the district court
does not violate the Sixth Amendment by imposing a sentence
based on a higher drug quantity than was determined by the jury.
See United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008).
Here, the 120-month sentence imposed by the court was well
within the statutory maximum of 20 years authorized by the
jury’s findings on drug quantity. Accordingly, the sentence
does not violate the Sixth Amendment. To the extent Izegwire
contends that the district court’s factual finding was otherwise
in error, we are unpersuaded. Drug quantity determinations are
reviewed for clear error. See United States v. Fullilove, 388
F.3d 104, 106 (4th Cir. 2004). The district court found the
testimony of John, Izegwire’s co-conspirator, to be credible and
found that John had supplied Izegwire with a total of 500 grams
of heroin. Having reviewed the record as a whole, we cannot say
that these findings were clearly erroneous.
We likewise reject Izegwire’s contention that the district
court erred in finding that he was a manager or supervisor and
applying the three-level increase in Izegwire’s offense level
for his role in the offense. See U.S.S.G. § 3B1.1(b) (2007).
The enhancement was based upon evidence that Izegwire directed
Hollo to conduct wire transactions involving drug proceeds on
several occasions. Izegwire did not contest the evidence, but
argued that the enhancement should not apply in light of his
12
romantic relationship with Hollo and because Hollo had made
other, legitimate wire transfers for him during this same time
period.
The district court’s “ruling regarding a role adjustment is
a factual determination reviewed for clear error.” United
States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009). A
defendant qualifies for the three-level enhancement if he “was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(b). 3 “Leadership over
only one other participant is sufficient as long as there is
some control exercised.” United States v. Rashwan, 328 F.3d
160, 166 (4th Cir. 2003); see also U.S.S.G. § 3B1.1, cmt. n.2
(“To qualify for an adjustment under this section, the defendant
must have been the organizer, leader, manager, or supervisor of
one or more other participants.”).
The district court found that Izegwire played a managerial
role because he directed Hollo to make the money wire transfers
to John in furtherance of the conspiracies. Izegwire provided
her with the money, along with the names and addresses of the
recipients, and instructed her to use an alias each time she
3
Izegwire does not argue that the criminal activity
involved fewer than five participants.
13
made an illegitimate transfer. We therefore conclude that the
district court did not clearly err in finding that Izegwire
acted as a manager or supervisor with respect to Hollo and in
applying the three-level role enhancement on this basis.
IV.
For the foregoing reasons, we affirm Izegwire’s convictions
and sentences. We dispense 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
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