US v. Paul Osuji

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [998823898-2] Originating case number: 3:06-cr-00415-MOC-1 Copies to all parties and the district court/agency. [998959991].. [11-5086]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5086

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL OSUJI,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:06-cr-00415-MOC-1)

Submitted:

July 30, 2012

Before AGEE and
Circuit Judge.

WYNN,

Decided:

Circuit

Judges,

and

October 16, 2012

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Mark P. Foster, Jr., RAWLS, SCHEER, FOSTER & MINGO, PLLC,
Charlotte, North Carolina, for Appellant.
Anne M. Tompkins,
United States Attorney, Melissa L. Rikard, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Having been resentenced after his initial sentence was
vacated on direct appeal, see United States v. Osuji, 413 F.
App’x 603 (4th Cir. 2011), Paul Osuji now seeks recourse in this
court

a

second

time,

attempting

to

challenge

several

of

his

convictions as well as the sentence newly imposed upon him.

We

have thoroughly reviewed the record, and we affirm.
Osuji first asserts that the district court erred in
sentencing him on five of the money laundering counts of which
he

was

convicted,

contending

that

the

relevant

convictions

should have been vacated pursuant to this court’s reasoning in
his direct appeal, which vacated the pertinent convictions with
respect

to

his

codefendant.

As

the

Government

correctly

observes, however, Osuji failed to raise this argument in his
initial appeal.

Thus, his present attempts to challenge his

convictions

barred

are

by

the

mandate

rule.

See

United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (the mandate rule
“forecloses

relitigation

of

issues

expressly

or

impliedly

decided by the appellate court,” as well as “issues decided by
the

district

court

but

foregone

on

appeal”);

Omni

Outdoor

Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505
(4th Cir. 1992) (“[W]here an argument could have been raised on
an initial appeal, it is inappropriate to consider that argument
on a second appeal following remand.”).
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Osuji also attacks the district court’s application of
the

Guidelines

reasonableness,

to

his

case.

applying

an

We
abuse

review
of

a

sentence

discretion

Gall v. United States, 552 U.S. 38, 51 (2007).

for

standard.

In assessing

whether a sentencing court properly applied the Guidelines, the
district court’s factual findings are reviewed for clear error
and

its

legal

conclusions

are

reviewed

de

novo.

United

States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).

We will

“find clear error only if, on the entire evidence, we are left
with the definite and firm conviction that a mistake has been
committed.”

United States v. Manigan, 592 F.3d 621, 631 (4th

Cir. 2010) (internal quotation marks and citation omitted).
Osuji’s first argument with respect to his sentence
alleges that the district court erred in assigning him a 2-level
enhancement under USSG § 3B1.3 for abuse of a position of trust.
We have reviewed Osuji’s contentions and conclude that they are
squarely

inconsistent

with

circuit

precedent.

See

United

States v. Bolden, 325 F.3d 471, 504 (4th Cir. 2003).
Osuji next claims that he was improperly assigned a 4point leadership role enhancement under USSG § 3B1.1(a).

In our

view, however, the record evidence does not support a conclusion
that the district court committed clear error in applying the
enhancement to Osuji.

Cf. United States v. Cameron, 573 F.3d

179, 184-86 (4th Cir. 2009).
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Finally, Osuji takes issue with the district court’s
conclusion that his offenses involved a loss of more than $1
million,

triggering

§ 2B1.1(b)(1)(I).
loss

calculation

loss.”

a

16-level

enhancement

under

USSG

Of course, § 2B1.1(b) tethers the relevant
to

“the

greater

of

USSG § 2B1.1, cmt. n.3(A)(i).

actual

loss

or

intended

And a district judge may

rely on the amount that a defendant billed to Medicare “as prima
facie evidence of the amount of loss he intended to cause.”
United States v. Miller, 316 F.3d 495, 504 (4th Cir. 2003).
Notwithstanding Osuji’s assertion that the loss amount should be
reduced by the value of the medical equipment that some of the
patients

involved

in

the

scheme

may

have

been

entitled

to

receive, the district court expressly found that the existence
of any such eligible patients would have been a mere fortuity
that was not expected by Osuji.

In other words, the district

court specifically found that Osuji intended to cause Medicare
to suffer a loss in the full amount which he billed to it.

The

district court’s calculation of the loss intended by Osuji’s
offenses was therefore not erroneous.
Accordingly, we affirm the judgment of the district
court.

We deny Osuji’s pending motion for leave to file a pro

se supplemental brief.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

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material

before

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the

court

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and

argument

will

not

aid

the

decisional process.

AFFIRMED

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