US v. Joseph Osiomwan

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to file supplemental brief(s) [999400214-2] Originating case number: 1:12-cr-00265-WDQ-1 Copies to all parties and the district court/agency. [999487897].. [13-4833]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

violation of 21 U.S.C. § 841(a) (2012).
sentenced

Osiomwan

appeals.

121

months

of

in

The district court

imprisonment

and

he

now

For the following reasons, we affirm.
Osiomwan

court

to

heroin,

erred

in

first

argues

failing

to

on

appeal

suppress

the

that

the

evidence

district

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.
(4th

Cir.

See United States v. Lighty, 616 F.3d 321, 365

2010).

establish

an

error

substantial rights.
controlling
directly

To

that

was

Id.

precedent

resolving

establish

plain

error,

and

the

Supreme

contested

Court

issue.

Beasley, 495 F.3d 142, 149 (4th Cir. 2007).
reviewed

the

conclude

that

record

and

Osiomwan

that

Osiomwan

must

affected

his

An error is not plain if there is no

from

the

plain

the
has

relevant
failed

district court committed plain error.

2

to

or

United

this

court

States

v.

We have thoroughly

legal

authorities

demonstrate

that

and
the

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Osiomwan next argues that the district court erred in
accepting

trial

Government’s
whether

counsel’s

witnesses

Osiomwan

was

consented

stipulation
an
to

expert
the

that

one

without

of

the

ascertaining

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.

applying
States,

an
552

We

abuse
U.S.

review

of
38,

a

sentence

for

discretion

standard.

51

see

(2007);

Gall

also

the

sentence

for

“significant

v.

United

Layton, 564 F.3d 330, 335 (4th Cir. 2009).
examine

reasonableness,
United

States

v.

In so doing, we

procedural

error,”

including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to

consider

selecting

a

the

[18

sentence

U.S.C.]
based

on

§ 3553(a)
clearly

[(2012)]

erroneous

failing to adequately explain the chosen sentence.”
U.S. at 51.
properly

factors,
facts,

or

Gall, 552

We presume on appeal that a sentence within a

calculated

advisory

Guidelines
3

range

is

reasonable.

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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

quantity

of

the

of

the

offense,

the

controlled

court

shall

substance.”

approximate

United

States

the
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
sentencing,

addition,

“[w]hen

such

an

as

Sentencing

Guidelines

information

without

provided

that

the

determining

approximated

allow

regard

courts
to

its

information

facts

drug
to

relevant

quantity,

consider

admissibility

has

sufficient

reliability to support its probable accuracy.”

to
the

relevant
at

trial,

indicia

of

United States v.

Crawford, 734 F.3d 339, 342 (4th Cir. 2013) (internal quotation
marks

omitted),

conclude

that

cert.
the

denied,

testimony

134
on
4

S.

which

Ct.
the

1528

(2014).

court

relied

We
in

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determining

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the

drug

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weight

for

sufficient indicia of reliability.

sentencing

purposes

had

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
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

5