United States v. Osamor , 107 F. App'x 438 ( 2004 )


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  •                                                               United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    August 19, 2004
    FOR THE FIFTH CIRCUIT
    _____________________                Charles R. Fulbruge III
    Clerk
    No. 03-20618
    _____________________
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    OYENOKACHIKEM CHARLES OSAMOR,
    Defendant - Appellant.
    __________________________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas, Houston
    USDC No. H-01-CR-764-1
    _________________________________________________________________
    Before JOLLY, WIENER, and PICKERING, Circuit Judges.
    PER CURIAM:1
    Osamor was charged by indictment with conspiracy to possess
    stolen mail, to transport stolen property, and to commit mail fraud
    (Count One), conspiracy to launder funds (Count 2), 20 counts of
    mail fraud and aiding and abetting mail fraud (Counts 3-22), and 20
    counts of possession of stolen mail, specifically checks, and
    aiding and abetting the possession of such stolen mail (Counts 23-
    42).       The indictment came after law enforcement agents, armed with
    an   arrest     warrant,   forcibly    entered   Osamor’s   house,   arrested
    Osamor, conducted a protective sweep of the home, and, after
    1
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    securing the residence, obtained a search warrant for the home.
    Pursuant to the search warrant, agents searched Osamor’s home and
    discovered evidence of bank records, brokerage accounts, credit
    applications, and mail in the names of other persons.
    The case proceeded to a jury trial.           Prior to submission of
    the   case    to   the   jury,   the   Government   indicated   that   it   was
    abandoning certain counts.         The jury returned guilty verdicts on
    counts 1-2, 7-18, 27-33, and 35-38, which represented all of the
    counts submitted to the jury.
    Pertinent to this appeal, the probation officer determined,
    under the 2000 version of the United States Sentencing Guidelines,
    that Osamor’s base offense level for his conviction on Count 2 was
    23.       Osamor objected to the assignment and the district court
    overruled his objection.
    Osamor       was   sentenced     to   60   months’ imprisonment and
    three years’ supervised release on Counts 1, 27-33, and 35-38.               He
    was sentenced to concurrent terms of 175 months’ imprisonment and
    five years’ supervised release on Counts 2 and 7-18.              Osamor was
    also ordered to provide restitution in the amount of $1,408,438.68.
    Acting upon Osamor’s oral request, the clerk of the district court
    filed a timely notice of appeal on Osamor’s behalf.2
    2
    Osamor’s brief challenges (1) the district court’s denial of
    his motion to suppress evidence; (2) the sufficiency of the
    evidence; (3) the prosecutor’s closing argument; (4) the jury
    instructions; and (5) the district court’s application of the
    United States Sentencing Guidelines (“U.S.S.G.”) §§ 2S1.1, 3B1.1,
    and 2S1.1(b)(2)(I). The only issue warranting discussion is the
    2
    Osamor argues that the district court erred in assigning a
    base offense level of 23 to his money laundering conspiracy offense
    under U.S.S.G. § 2S1.1.   We disagree.3
    We review the district court's interpretation and application
    of the Sentencing Guidelines de novo, United States v. Charles, 
    301 F.3d 309
    , 312 (5th Cir. 2002) (en banc), and its factual findings
    for clear error.   United States v. Paul, 
    274 F.3d 155
    , 161 (5th
    Cir. 2001).
    In the instant case, Count 2 of the indictment charged Osamor
    with conspiracy to launder funds under 18 U.S.C. § 1956(h).   Under
    § 1956(h) a person who conspires to commit any offense listed in §
    1956 is subject to the same penalties as those provided for the
    commission of the actual offense.    In the instant case, Osamor was
    charged both with conspiring to violate § 1956(a)(1)(A)(i), which
    carries a base offense level of 23, and with conspiring to violate
    § 1956(a)(1)(B)(i), which carries a base offense level of 20.   See
    U.S.S.G. § 2S1.1(a)(1)&(2).4
    district court’s application of U.S.S.G. § 2S1.1. With respect to
    Osamor’s remaining arguments, we find that the district court
    committed no reversible error and the district court’s judgment is,
    therefore, AFFIRMED.
    3
    We note that the Supreme Court’s decision in Blakely v.
    Washington, 542 U.S. __, 
    124 S. Ct. 2531
    (June 24, 2004) does not
    affect our disposition of this appeal. See United States v.
    Pineiro, No. 03-30437, __ F.3d __, 
    2004 WL 1543170
    (5th Cir. July
    12, 2004).
    4
    The pertinent portion of U.S.S.G. § 2S1.1 provides that the
    base offense level for the laundering of monetary instruments is
    “23, if convicted under 18 U.S.C. § 1956(a)(1)(A), (a)(2)(A), or
    3
    The jury charge defined the substantive offense of money
    laundering to require either “that the Defendant intended to
    promote the carrying on of the specified unlawful activity [a
    violation of § 1956(a)(1)(A)(i)] or knew that the transaction was
    designed in whole or in part to conceal or disguise the nature, the
    location, the source, the ownership or the control of the proceeds
    of   specified    unlawful    activity   [a    violation    of   §
    (a)(3)(A)”; otherwise, the defendant’s base offense level is 20.
    U.S.S.G. § 2S1.1(a)(1)&(2).
    4
    1956(a)(1)(B)(i)].”    (Emphasis   added.)5   The   jury   returned   a
    general guilty verdict.
    At sentencing Osamor objected to the PSR’s assignment of a
    base offense level of 23 for his conviction for conspiracy to
    launder funds under 18 U.S.C. § 1956(h).      Osamor argued that no
    election had been made by the jury indicating the means by which he
    violated § 1956(h); conspiring to violate § 1956(a)(1)(A)(i) --
    5
    The relevant portion of the statute provides that:
    (a)(1) Whoever, knowing that the property
    involved in a financial transaction represents
    the proceeds of some form of unlawful
    activity, conducts or attempts to conduct such
    a financial transaction which in fact involves
    the proceeds of specified unlawful activity--
    (A)(i) with the intent to promote
    the   carrying  on    of specified
    unlawful activity; or
    .      .   .
    (B) knowing that the transaction is
    designed in whole or in part--
    (i) to conceal or disguise the
    nature, the location, the source,
    the ownership, or the control of the
    proceeds   of   specified   unlawful
    activity
    .      .   .
    shall be sentenced to a fine of not
    more than $500,000 or twice the
    value of the property involved in
    the   transaction,   whichever   is
    greater, or imprisonment for not
    more than twenty years, or both.
    18 U.S.C. § 1956(a)(1).
    5
    enumerated base offense level of 23 -- or conspiring to violate §
    1956(a)(1)(B)(i) -- base offense level of 20.           The district court
    overruled his objection but did not specifically determine that
    Osamor had violated § 1956(a)(1)(A)(i).
    “A particular guideline (in the base offense level or in a
    specific   offense    characteristic)      may   expressly    direct      that   a
    particular factor be applied only if the defendant was convicted of
    a particular statute” -- here, conviction under § 1956(a)(1)(A)(i)
    -- and in this case neither the jury nor the district court
    expressly determined that Osamor was convicted under 18 U.S.C. §
    1956(a)(1)(A).     See United States v. Rodriguez, 
    278 F.3d 486
    , 493
    (5th Cir. 2002).
    First, it is clear that a jury finding that Osamor violated §
    1956(a)(1)(A)(i) is not required.          In United States v. Keith, 
    230 F.3d 784
    , 787 (5th Cir. 2000), a panel of this court held that “a
    fact used in sentencing that does not increase the penalty beyond
    the statutory maximum need not be alleged in the indictment and
    proved to a jury beyond a reasonable doubt.”           
    Id. at 787.
            Here,
    Osamor’s   sentence    of   175   months   imprisonment      and   five    years
    supervised release does not exceed the statutory maximum for a
    violation of § 1956.        See United States v. Conley, 
    349 F.3d 840
    (5th Cir. 2003) (stating that maximum sentence for conspiracy to
    launder money is 20 years).
    Second, the Supreme Court’s decision in Edwards v. United
    States, 
    523 U.S. 511
    (1998) precludes Osamor’s objections. In that
    6
    case, the defendants were charged with conspiring to possess both
    cocaine and crack.       
    Edwards, 523 U.S. at 512-13
    .                      At trial the
    district court charged the jury that the government was required to
    prove that the conspiracy involved cocaine or crack.                        
    Id. at 513.
    The jury returned a general guilty verdict and the judge sentenced
    the defendants based upon his finding that each defendant had
    conspired to possess both cocaine and crack.                     
    Id. The defendants
    argued that the use of the word “or” in the
    jury   charge   required     the     district       court     to    assume    that     the
    conspiracy only involved cocaine, which is treated more leniently
    by the Sentencing Guidelines than crack.                   
    Id. The Supreme
    Court
    rejected this    argument      and    held     that     the    district      judge     was
    authorized to determine for sentencing purposes whether crack, as
    well as cocaine, was involved in the offense.                      
    Id. In the
    instant case, the jury charge defined the substantive
    offense of money laundering to include either § 1956(a)(1)(A)(i) or
    § 1956(a)(1)(B)(i).     The jury rendered a general verdict which did
    not    specifically     find       that       its     decision           rested   on     §
    1956(a)(1)(A)(i) as opposed to § 1956(a)(1)(B)(i).                          Moreover, §
    2S1.1 “expressly directs” that a base offense level of 23 is only
    appropriate when the conviction rests on one of the enumerated
    offenses,   including    a   violation         of   §   1956(a)(1)(A)(i).              See
    
    Rodriguez, 278 F.3d at 493
    .           The Edwards decision, however, also
    instructs    that     this     finding        --    that      Osamor        violated     §
    1956(a)(1)(A)(i) -- may be made by the district judge.
    7
    In this case, the district judge did not explicitly find that
    Osamor had violated § 1956(a)(1)(A)(i).              In overruling Osamor’s
    objections, however, the district court noted that “[t]he higher
    base offense level of 23 as compared to the base offense level of
    20, applicable to other money laundering offenses, is applied in
    sentencing   defendants      whose   commission    of    a     money   laundering
    offense    encouraged   or    facilitated    the     commission        of   further
    crimes.”   Consequently, the district court’s rejection of Osamor’s
    argument urging application of a base offense level of 20 clearly
    implies    that   the   district     court   found      that    Osamor’s      money
    laundering offense “encouraged or facilitated other crimes” -- a
    violation of § 1956(a)(1)(A) -- and is therefore subject to the
    higher base offense level of 23.             The record supports such a
    finding.   For these reasons, the district court’s application of §
    2S1.1(a)(1) was proper and its judgment is in all respects
    AFFIRMED.
    8
    

Document Info

Docket Number: 03-20618

Citation Numbers: 107 F. App'x 438

Judges: Jolly, Per Curiam, Pickering, Wiener

Filed Date: 8/19/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023