United States v. Oladapo

UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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