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    1) The defendant appealed his conviction for conspiracy to distribute and possession with intent to distribute heroin. The appellate court affirmed the district court's conviction. 2) The defendant argued the district court erred in failing to suppress evidence from a warrantless search of his cell phones. However, the defendant failed to raise this argument in the district court. 3) The defendant also argued the district court erred in accepting a stipulation from his trial counsel without determining if he consented. The appellate court found the defendant failed to show this was plain error. 4) The appellate court also found the district court did not err in its consideration of evidence at sentencing or in considering acquitted conduct. It affirmed the sentence as procedurally

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    1) The defendant appealed his conviction for conspiracy to distribute and possession with intent to distribute heroin. The appellate court affirmed the district court's conviction. 2) The defendant argued the district court erred in failing to suppress evidence from a warrantless search of his cell phones. However, the defendant failed to raise this argument in the district court. 3) The defendant also argued the district court erred in accepting a stipulation from his trial counsel without determining if he consented. The appellate court found the defendant failed to show this was plain error. 4) The appellate court also found the district court did not err in its consideration of evidence at sentencing or in considering acquitted conduct. It affirmed the sentence as procedurally

    Original Description:

    Filed: 2014-12-05 Precedential Status: Non-Precedential Docket: 13-4833

    Original Title

    United States v. Joseph Osiomwan, 4th Cir. (2014)

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    1) The defendant appealed his conviction for conspiracy to distribute and possession with intent to distribute heroin. The appellate court affirmed the district court's conviction. 2) The defendant argued the district court erred in failing to suppress evidence from a warrantless search of his cell phones. However, the defendant failed to raise this argument in the district court. 3) The defendant also argued the district court erred in accepting a stipulation from his trial counsel without determining if he consented. The appellate court found the defendant failed to show this was plain error. 4) The appellate court also found the district court did not err in its consideration of evidence at sentencing or in considering acquitted conduct. It affirmed the sentence as procedurally

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    61 views5 pages

    Unpublished

    Uploaded by

    Scribd Government Docs
    1) The defendant appealed his conviction for conspiracy to distribute and possession with intent to distribute heroin. The appellate court affirmed the district court's conviction. 2) The defendant argued the district court erred in failing to suppress evidence from a warrantless search of his cell phones. However, the defendant failed to raise this argument in the district court. 3) The defendant also argued the district court erred in accepting a stipulation from his trial counsel without determining if he consented. The appellate court found the defendant failed to show this was plain error. 4) The appellate court also found the district court did not err in its consideration of evidence at sentencing or in considering acquitted conduct. It affirmed the sentence as procedurally

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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

    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.

    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

    Governments
    whether

    counsels

    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,

    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

    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.

    DAnjou, 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 Osiomwans 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

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