US v. Joseph Osiomwan, No. 13-4833 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4833 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH OSIOMWAN, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 Osiomwan next argues that the district court erred in accepting trial Government’s whether counsel’s witnesses Osiomwan stipulation was an consented 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. 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 determining the drug 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