10-3427(L)
USA v. Oyewumi, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29th day of March, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 Circuit Judges.
9 MIRIAM GOLDMAN CEDARBAUM
10 District Judge.*
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-3427-cr, 10-3911-cr, 10-
18 4035-cr
19
20 TAIWO ADEKANBI, AKA TAIYE, ADEMILOLA OGUNMOKUN, AKA JIMMY,
21 AKA ABURO, AKA OLASUPO OGUNMOKUN,
22
23 Defendants,
24
25 KAY OYEWUMI, FNU LNU, AKA TONY MCKINNON, AKA REGINAL DAVIS,
26 AKA SAEED, TUNDE OGUNRINKA, AKA BABA TOLANI,
27
28 Defendants-Appellants,
29
*
Judge Miriam Goldman Cedarbaum, of the United States
District Court for the Southern District of New York, sitting by
designation.
1
2 FOR APPELLANT
3 Fnu Lnu a/k/a
4 Tony McKinnon a/k/a
5 Reginal Davis a/k/a
6 Saeed: STEVEN R. PEIKIN (Alexander J.
7 Willscher, Allison Caffarone, on the
8 brief), Sullivan & Cromwell, New
9 York, NY.
10
11 FOR APPELLANT
12 Tunde Ogunrinka
13 a/k/a Baba Tolani: THOMAS F.X. DUNN, New York, NY.
14
15 FOR APPELLANT
16 Kay Oyewumi: MARY ANNE WIRTH, Bleakley Platt &
17 Schmidt, LLP, White Plains, NY.
18
19 FOR APPELLEE: DANIEL S. GOLDMAN, Assistant United
20 States Attorney, (Katherine Polk
21 Failla, Assistant United States
22 Attorney, on the brief), for Preet
23 Bharara, United States Attorney for
24 the Southern District of New York,
25 New York, NY.
26
27 Appeal from the United States District Court for the
28 Southern District of New York (Sullivan, J.).
29
30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
31 AND DECREED that the judgment of the district court be
32 AFFIRMED.
33 Defendants Ogunrinka, Oyewumi, and Fnu Lnu a/k/a Saeed
34 appeal from judgments of conviction entered on September 28,
35 2010, in the United States District Court for the Southern
36 District of New York, following a seven-day jury trial
37 before the Honorable Richard J. Sullivan. We address Fnu
2
1 Lnu’s appeal in a separate Per Curiam opinion filed
2 contemporaneously with this Summary Order.
3 Here we address only the appeals of Ogunrinka and
4 Oyewumi. In Oyewumi’s case, defense counsel has moved to
5 withdraw pursuant to Anders v. California, 386 U.S. 738
6 (1967), and the government has moved to dismiss Oyewumi’s
7 appeal based on the appeal waiver contained in his plea
8 agreement, and, in the alternative, for summary affirmance
9 of Oyewumi’s conviction and sentence. Ogunrinka appeals his
10 sentences as being procedurally and substantively
11 unreasonable.
12 We assume the parties’ familiarity with the underlying
13 facts and procedural history of this case.
14 1. Ogunrinka’s Fifth and Sixth Amendment Claims
15 Appellant Ogunrinka argues that the district court
16 violated his Sixth Amendment right to a trial by jury and
17 his Fifth Amendment Due Process rights because the district
18 court based Ogunrinka’s sentence on its finding that a
19 preponderance of the evidence established that Ogunrinka was
20 responsible for between 100 and 400 grams of heroin. At
21 trial, applying a reasonable doubt standard, the jury found
22 that Ogunrinka was responsible for less than 100 grams of
23 heroin.
3
1 The district court committed no constitutional or legal
2 errors in using the preponderance of the evidence standard
3 in calculating the drug quantity involved in Ogunrinka’s
4 criminal conduct and thereafter sentencing defendant
5 accordingly. See United States v. Vaughn, 430 F.3d 518, 525
6 (2d Cir. 2005). We therefore affirm the district court’s
7 sentence of 63 months’ imprisonment.
8 2. Ogunrinka’s U.S.S.G. § 3B1.2 Claim
9 Ogunrinka also contends that the district court erred
10 in declining to impose a “minor role” reduction pursuant to
11 section 3B1.2(b). To be eligible for a minor role
12 adjustment, “the defendant’s conduct must be minor or
13 minimal as compared to the average participant in such a
14 crime.” United States v. Carpenter, 252 F.3d 230, 235 (2d
15 Cir. 2001) (internal quotation marks omitted). The district
16 court’s findings of fact were well-founded in the record.
17 We find no error in the court’s decision that Ogunrinka was
18 not a minor participant in the conspiracy.
19 Based on the foregoing, we find Ogunrinka’s 63-month
20 sentence was both procedurally and substantively reasonable.
21 3. Oyewumi
22 Mary Anne Wirth moves to be relieved as counsel for Kay
23 Oyewumi, pursuant to Anders v. California, 386 U.S. 738
4
1 (1967), and the government moves to dismiss Oyewumi’s
2 appeal, or in the alternative, for summary affirmance.
3 Because we find that Oyewumi’s plea agreement included a
4 valid waiver of his right to appeal a within-Guidelines
5 sentence, we grant Wirth’s motion to be relieved as counsel
6 and grant the government’s motion to dismiss Oyewumi’s
7 appeal.
8 For the foregoing reasons, the judgment of the district
9 court with regard to both Ogunrinka and Oyewumi is AFFIRMED.
10 This summary order disposes of Mary Anne Wirth’s Anders
11 Motion as well as the Government’s motion for summary
12 affirmance or dismissal of Oyewumi’s appeal. Both pending
13 motions are therefore moot.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
5