United States v. Oladapo , 228 F. App'x 357 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OLUSHOLA OLADAPO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-04-437-MJG)
Submitted: April 11, 2007 Decided: May 30, 2007
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
W. Warren Hamel, VENABLE LLP, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Kwame J. Manley, Tamera
L. Fine, Assistant United States Attorneys, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Olushola Oladapo was convicted by a jury of possession of
stolen mail, 18 U.S.C. § 1708 (2000), and sentenced to sixty months
imprisonment. She appeals, claiming, first, that the district
court improperly admitted certain hearsay evidence, and second,
that the district court failed to exercise its discretion in
imposing a sentence under the now-advisory sentencing guidelines.
For the reasons that follow, we affirm Oladapo’s conviction but
vacate and remand for resentencing.
The evidence presented at Oladapo’s trial, viewed in the
light most favorable to the Government, see United States v.
Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.
In April 2004, the United States Postal Service began an
investigation of stolen bulk mail, including bank documents, credit
cards, and credit convenience checks. The investigation focused on
Oladapo’s husband Kehinde Oladapo because he worked for Southwest
Airlines at its cargo warehouse located at BWI airport--which
investigators had determined to be the source of the stolen mail--
and he had a documented pattern of using Express Mail from the BWI
post office to mail small, lightweight packages. The packages were
addressed to two different addresses in New York and each had fake
return addresses on the labels. Based upon this evidence, a search
warrant was issued for the Oladapo residence.
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Evidence seized during the search of the Oladapos’ home
included four stolen Shell Oil Company credit cards, a stolen Citgo
credit card, Express Mail receipts, several receipts for money
orders made payable to “Shola Oladapo”; and a daily planner that
had an entry for “Babayemi Babatayo, 2501 Nostrand Avenue, Number
3G, Brooklyn, New York, 11210.” Postal Inspector Mark Carr
testified that this was the name and address used on many of the
Express Mail packages that were later found to contain hundreds of
stolen credit cards and checks.
Claudette Moser, a fraud investigator for Citigroup
Investigative Services, testified that, based upon notations on the
account statement made by the cardholder, one of the Shell Oil
cards was used without the cardholder’s authorization.1 Over
Oladapo’s objection, the account statement was shown to the jury,
with the customer’s handwritten annotation disputing the charges.
Finally, again over Oladapo’s objection, Moser testified that based
on her investigation into Kehinde’s work schedule, the charges were
made while he was at work (thus implicating Oladapo). Oladapo
objected to the introduction of Kehinde’s work records because
Moser was not employed by Southwest Airlines and, therefore, she
was not the appropriate witness to introduce those documents. The
district court overruled her objection, noting that Moser “has the
1
The Shell Oil credit cards were issued by Citibank.
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requisite background,” and that counsel would have the opportunity
to cross-examine for any inaccuracies.
The Government also introduced the testimony of a postal
clerk who stated that, over the course of a four-year period,
Oladapo sent and received Express Mail envelopes at least once per
week. Finally, cooperating co-defendants Odukale and Sogbesan
testified as to Kehinde and Oladapo’s participation in the stolen
check and credit card operation. Odukale testified that he sent
money orders to Oladapo as payment for stolen checks and credit
cards that she had mailed to New York, and also as payment for
profits made on those cards. Sogbesan testified that Kehinde
provided Oladapo with stolen checks and credit cards to mail.
Based on this evidence, the jury convicted Oladapo of one
count of possession of stolen mail (count 3). The district court
sentenced her to sixty months imprisonment--the statutory maximum.
Oladapo timely appealed.
Oladapo argues, first, that the district court erred in
admitting, through Moser and Inspector Carr, the Shell cardholder’s
handwritten notation and Kehinde’s employment attendance records.
This court reviews a district court’s decision as to the
admissibility of evidence for abuse of discretion and will not find
an abuse unless a decision was “arbitrary and irrational.” United
States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002). We find that
both the handwritten notation on the Shell statement and Kehinde’s
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employment attendance records satisfy the criteria for the business
records exception to the hearsay rule provided by Fed. R. Evid.
803(6). The district court properly found that Moser was qualified
to testify as to the results of her investigation of unauthorized
use of stolen Citibank credit cards. Oladapo does not challenge
the authenticity of the documents at issue--indeed, the parties
stipulated that the documents were authentic. Moreover, Oladapo’s
attorney was able to cross-examine both witnesses. In any event,
any error in admitting the evidence was harmless in light of the
independent and overwhelming evidence of Oladapo’s guilt. See
United States v. Seidman, 156 F.3d 542, 558 (4th Cir. 1998) (noting
that “improper admission of evidence which is cumulative of matters
shown by admissible evidence is harmless error”).
Next, Oladapo challenges the sentence imposed, arguing
that the district court judge did not exercise his discretion to
impose a sentence outside of the advisory guidelines range. We
agree.
Oladapo’s advisory guidelines range was 188-235 months
imprisonment. However, because the statutory maximum for the
offense of conviction is sixty months, that became the guidelines
sentence. After Oladapo’s attorney argued for a below-guidelines
sentence, citing her family obligations (Oladapo and Kehinde have
two young children), and relatively minor role in the conspiracy,
the district court made the following concluding statement:
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This is a case in which I am looking at sentencing
guidelines that are not binding but are advisory. I’m
looking at a crime that is, in the global sense, very
serious. . . .
If I look at the guidelines, there’s two ways to
look at the guidelines. I mean, the guideline sentence
is 60 months because that’s the statutory maximum. The
guideline sentence would be way above 60 months without
that statutory maximum.
I’ve got to come to this conclusion. I have a case
that’s subject to appeal by either side. I do not
believe that the Fourth Circuit would affirm a deviation
from the guidelines here. I do not think that the Fourth
Circuit would find it reasonable or would allow me to
find it reasonable to deviate from the guidelines in a
case where the guidelines sentence is something like 15
years, or something like that. I think I would deviate
from that. I certainly would. I certainly did in the
case of Mr. Oladapo.
I want the record to be clear. If the Fourth Circuit
is going to review this on appeal, they should know that,
in my judgment, I believe that it could be reasonable to
deviate from the guidelines and to reduce the sentence
somewhat. But I don’t think they would affirm it. And
I don’t think it is appropriate for me to do something
that I honestly believe they will not affirm.
So, I think I’m required to, and I will have to,
impose the sentence of 60 months that is the guideline
sentence.
After United States v. Booker, 543 U.S. 220 (2005), this
court reviews a district court’s sentence for reasonableness.
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
“Consistent with the remedial scheme set forth in [Booker], a
district court shall first calculate (after making the appropriate
findings of fact) the range prescribed by the guidelines.” Id. at
546. Next, the district court must consider this range in
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conjunction with other relevant factors under the guidelines and
§ 3553(a) and impose a sentence. Hughes, 401 F.3d at 546. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47 (citations omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006) (citations omitted). “[A] defendant can only rebut the
presumption by demonstrating that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v. Montes-
Pineda, 445 F.3d 375, 379 (4th Cir.) (internal quotation marks and
citation omitted), petition for cert. filed, ___U.S.L.W.___ (U.S.
July 21, 2006) (No. 06-5439).
A post-Booker sentence may be unreasonable for procedural
and substantive reasons. “A sentence may be procedurally
unreasonable, for example, if the district court provides an
inadequate statement of reasons or fails to make a necessary
factual finding.” United States v. Moreland, 437 F.3d 424, 434
(4th Cir.) (citations omitted), cert. denied, 126 S. Ct. 2054(2006). While a district court must consider the various factors
in § 3553(a) and explain its sentence, it need not “robotically
tick through § 3553(a)’s every subsection” or “explicitly discuss
every § 3553(a) factor on the record.” Johnson, 445 F.3d at 345.
“This is particularly the case when the district court imposes a
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sentence within the applicable Guidelines range.” Id. (citation
omitted).
However, “a district court’s explanation should provide
some indication (1) that the court considered the § 3553(a) factors
with respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” Montes-Pineda, 445 F.3d at 380(citations omitted). “[I]n determining whether there has been an
adequate explanation, [the Court does] not evaluate a court’s
sentencing statements in a vacuum.” Id. at 381. Rather, “[t]he
context surrounding a district court’s explanation may imbue it
with enough content for [the Court] to evaluate both whether the
court considered the § 3553(a) factors and whether it did so
properly.” Id.
On the record before us, we are unable to discern whether
the district court considered the § 3553(a) factors or whether it
did so properly. Accordingly, although we affirm Oladapo’s
conviction, we vacate her sentence and remand for resentencing in
order to allow the district court to articulate its reasons for
imposing sentence.2 We dispense with oral argument because the
2
We note that the district court sentenced Oladapo prior to
our decisions in Moreland, Johnson, and Montes-Pineda, and thus did
not have the benefit of the guidance provided by those cases. We
further note that the district court is free on remand to impose
the same sentence or a different one; nothing in this opinion
should be read to suggest that we have formed any view regarding
the appropriate outcome of Oladapo’s resentencing.
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facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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