United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 29, 2006
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
USDC No. H-01-CR-764-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY and WIENER, Circuit Judges.1
PER CURIAM:2
This court affirmed Oyenokachikem Charles Osamor’s conviction
and sentence. United States v. Osamor, 107 Fed. Appx. 438 (5th
Cir. 2004). The Supreme Court vacated and remanded for further
consideration in the light of United States v. Booker, 125 S.Ct.
738 (2005). Osamor v. United States, 125 S.Ct. 1070 (2005). We
1
Judge Pickering was a member of the original panel but
retired from the Court on December 8, 2004 and, therefore, did not
participate in this decision.
2
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this opinion should not be published and is not precedent except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.
requested and received supplemental letter briefs addressing the
impact of Booker.
Osamor was convicted of conspiracy to defraud the United
States, conspiracy to launder funds, 12 counts of mail fraud, and
9 counts of possession of stolen mail. Using the 2000 edition of
the Sentencing Guidelines, the probation officer grouped Osamor’s
counts of conviction. The count resulting in the highest offense
level was count 2, conspiracy to commit money laundering, which
resulted in a base offense level of 23. The probation officer
determined that the total value of the laundered funds from all of
Osamor’s fraudulent activities was $11,148,981.92, which resulted
in an offense level increase of 9 levels. This amount was later
revised to $10,997,493.98, but the reduction did not affect the
probation officer’s offense level calculation. The probation
officer also increased the offense level by 4 more levels based on
the determination that Osamor was a leader or organizer of criminal
activity that involved five or more participants. With a total
offense level of 36 and a criminal history category of I, the
guideline range of imprisonment calculated by the probation officer
was 188 to 235 months.
At the sentencing hearing, the district court concluded that
the value of laundered funds was $8,484,763.99. This reduced
Osamor’s total offense level by one to 35. With a total offense
level of 35 and a criminal history category of I, the guideline
2
range of imprisonment was 168 to 210 months. The district court
sentenced Osamor to 175 months imprisonment.
In his supplemental brief, Osamor argues that the district
court erred when it applied the Sentencing Guidelines as mandatory
rather than advisory and imposed a sentence above the sentencing
range supported by the jury verdict and his criminal history. He
asserts that plain error review does not apply because, although he
did not object to the sentencing enhancements based specifically on
Sixth Amendment grounds, he did object to the base offense level
determination on the ground that the jury had not made the required
findings to support that offense level.
The Government argues that plain error review applies because
Osamor did not object in the district court to the application of
the Sentencing Guidelines on the ground that they implicated his
Sixth Amendment right to a jury trial. We disagree. Osamor’s
written objections to the presentence report (“PSR”) contain
numerous objections to various paragraphs of the PSR on the ground
that there was no evidence presented at trial to support them. In
addition, he objected to the PSR on the following grounds:
It is unconstitutional for this court to apply
the PSR provisions as written to defendant as
the same is a factual assessment which
increases defendant’s sentence and therefore
may only be decided by a jury upon evidence
established by proof beyond a reasonable
doubt.
....
3
The United States Supreme [C]ourt has
recognized the indictment’s role in warning a
defendant of facts that may enhance his
punishment upon conviction. See e.g. Jones v.
United States, 526 U.S. 227 (1999).
The most current decision in this matter is
the United States Supreme Court ruling in
Apprendi v. New Jersey, 530 U.S. 466, holding
that “every fact that is by law a basis for
imposing or increasing punishment” is an
element of the offense, and therefore should
be presented to the jury for a finding of
guilt beyond a reasonable [doubt].
....
Assuming, arguendo, that defendant could be
classified as a leader/organizer in the within
case, defendant objects on the grounds that
such enhancement violates Apprendi, supra. It
is indisputable that four level leadership
role increase may increase the defendant’s
sentence beyond the prescribed statutory
maximum. Therefore, the issue of leadership
role must be charged in an indictment,
submitted to a jury, and the government to
prove beyond a reasonable doubt, the
defendant’s decision making authority, the
nature of his participation in the offense,
his planning of the offense, and his control
over others.
Osamor’s counsel objected on the same grounds at the sentencing
hearing.
Although Osamor did not specifically object on Sixth Amendment
grounds or on the ground that the guidelines were unconstitutional
because they were mandatory, under our precedent his objections
adequately apprised the district court that he was raising a Sixth
Amendment objection to his offense level calculation because the
government did not prove to the jury beyond a reasonable doubt the
4
facts to support the enhancements. See United States v. Olis, 429
F.3d 540, 544 (5th Cir. 2005) (defendant preserved Booker claim by
objecting “to both the district court’s loss calculation and the
burden of proof utilized by the court. His objections regarding
the loss calculation alerted the court to cases that acknowledged
the potential for a constitutional violation when sentencing facts
are not found by at least clear and convincing evidence.”); United
States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (defendant’s
Apprendi-based objection to PSR’s drug-quantity calculations was
sufficient to preserve his Booker claim); United States v. Akpan,
407 F.3d 360, 376 (5th Cir. 2005) (defendant’s objections to
district court’s determination of range of financial loss on ground
that amount had not been proven at trial and that court should
confine its determination of loss to the amount alleged in the
indictment were adequate to apprise court that he was raising a
Sixth Amendment objection to the loss calculation because the
government did not prove the amount of loss to the jury beyond a
reasonable doubt).
When, as here, a defendant preserves Booker error, “we will
ordinarily vacate the sentence and remand, unless we can say the
error is harmless under Rule 52(a) of the Federal Rules of Criminal
Procedure.” United States v. Mares, 402 F.3d 511, 520 n.9 (5th
Cir.), cert. denied, 126 S.Ct. 43 (2005). The Government bears the
“burden of demonstrating that the error was harmless by
demonstrating beyond a reasonable doubt that the federal
5
constitutional error of which [Osamor] complains did not contribute
to the sentence that he received.” United States v. Pennell, 407
F.3d 360, 377 (5th Cir. 2005). The Government has not met that
burden. It has not pointed to any evidence in the record or
statements by the district court that would prove beyond a
reasonable doubt that the district court would have imposed the
same sentence had it acted under an advisory Guidelines regime.
For the foregoing reasons, we VACATE Osamor’s sentence and
REMAND the case to the district court for resentencing.
VACATED and REMANDED.
6