UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4822
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OBAFEMI SMART OLUBUYIMO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-04-74)
Submitted: September 14, 2005 Decided: October 31, 2005
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, Meghan S. Skelton, Research and
Writing Attorney, Alexandria, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Vincent L. Gambale, Assistant
United States Attorney, Carol A. Bell, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Obafemi Smart Olubuyimo appeals his conviction and
eighteen month sentence imposed following a jury trial for
possession of an immigration permit, plate or impression, in
violation of 18 U.S.C. § 1546(a) (2000); and his conviction and
eighteen month sentence imposed following a plea of guilty for
failure to appear, in violation of 18 U.S.C. § 3146(a)(1) (2000).
For the reasons that follow, we affirm.
Olubuyimo first claims that there was insufficient
evidence to support his conviction for knowing possession of
counterfeit immigration plates. Upon a careful review of the
record, and construing all inferences in favor of the Government,
we find substantial evidence supports the verdict. See Glasser v.
United States, 315 U.S. 60, 80 (1942).
Olubuyimo next contends that the district court
improperly refused his oral request to instruct the jury on
spoliation of evidence. “The standard of review for determining
whether the district court should have given a jury instruction is
abuse of discretion.” United States v. Ruhe, 191 F.3d 376, 384
(4th Cir. 1999). “A district court’s refusal to provide an
instruction requested by a defendant constitutes reversible error
only if the instruction: ‘(1) was correct; (2) was not
substantially covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that failure to
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give the requested instruction seriously impaired the defendant’s
ability to conduct his defense.’” United States v. Lewis, 53 F.3d
29, 32 (4th Cir. 1995) (citations omitted). Based on the record,
we find that the district court’s failure to give the spoliation
instruction was not an abuse of discretion and did not seriously
impair Olubuyimo’s ability to conduct his defense.
Olubuyimo also asserts that the district court prevented
him from exercising his Sixth Amendment right to present a defense
through: (1) limiting the examination of his witnesses; and (2) its
explanation to a defense witness of his Fifth Amendment right
against self-incrimination. This court reviews a district court’s
evidentiary rulings for abuse of discretion. United States v.
Leftenant, 341 F.3d 338, 342 (4th Cir. 2003). Any error “that does
not affect substantial rights must be disregarded.” Fed. R. Crim.
P. 52(a); see also Fed. R. Evid. 103(a) (“Error may not be
predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected.”). Having carefully
reviewed the record in this case, we conclude that Olubuyimo failed
to show that the district court abused its discretion or affected
his substantial rights.
Finally, Olubuyimo claims that the two-level enhancement
for obstruction of justice under U.S. Sentencing Guidelines Manual
(“USSG”) § 3C1.1 (2003) violated the Sixth Amendment because the
enhancement was based upon facts found by the judge, not the jury.
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Assuming that Olubuyimo preserved this issue by objecting at his
sentencing hearing based upon Blakely v. Washington, 542 U.S. 296
(2004), this court’s review is de novo. United States v. Mackins,
315 F.3d 399, 405 (4th Cir. 2003). On the facts of this case,
including the district court’s unambiguous statement at sentencing
that it would impose an eighteen month sentence regardless of the
impact of the Blakely decision upon the federal sentencing
guidelines, we conclude that any error under United States v.
Booker, 125 S. Ct. 738 (2005), is harmless.
Accordingly, we affirm Olubuyimo’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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