United States of America, Plaintiff-appellee, v. Tony Oluyinka Okuribido, Defendant-appellant, 978 F.2d 717 (9th Cir. 1992)Annotate this Case
Submitted Oct. 22, 1992. *Decided Oct. 26, 1992.
Before BEEZER, CYNTHIA HOLCOMB HALL and WIGGINS, Circuit Judges.
Tony Okuribido appeals from his sentence, imposed following his conviction at jury trial, for possession of counterfeit securities and implements for making counterfeit securities in violation of 18 U.S.C. §§ 513(a) and (b). Okuribido contends that the district court erred by including two counterfeit cashier's checks not charged in the indictment in its calculation of his sentence under the United States Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Generally, we review for clear error a district court's determination of facts underlying application of the Guidelines. United States v. Fine, No. 90-50280, slip op. 11067, 11073 (9th Cir. Sept. 14, 1992) (en banc). Nevertheless, where a defendant fails to raise in the district court an objection to the factual accuracy of the presentence report, he waives the right to raise the challenge on appeal. United States v. Visman, 919 F.2d 1390, 1393-94 (9th Cir. 1990), cert. denied, 112 S. Ct. 442 (1991); see also United States v. Belden, 957 F.2d 671, 674 (9th Cir.), (argument regarding application of the Guidelines is waived if not raised in the district court), cert. denied, 61 U.S.L.W. 3262 (U.S. Oct. 5, 1992).
Here, the presentence report (PSR) established that Okuribido arrived in the United States in possession of ten counterfeit cashier's checks with a combined face value of $69,000 and two plates designed for the production of additional checks. The PSR calculated Okuribido's offense level based on these items as well as two uncharged counterfeit cashier's checks, bearing the same face and serial numbers as two of the checks found in Okuribido's possession, which had been negotiated through a New York bank shortly after his arrival in the United States. Okuribido contends that the government did not prove by a preponderance of the evidence that the latter checks were "connected" to him. He has waived this claim by never raising it to the district court, however, and we decline to address it. See Belden, 957 F.2d at 674; Visman, 919 F.2d at 1393-94.