UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL OSUJI,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:06-cr-00415-MOC-1)
Submitted: July 30, 2012 Decided: October 16, 2012
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark P. Foster, Jr., RAWLS, SCHEER, FOSTER & MINGO, PLLC,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Melissa L. Rikard, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Having been resentenced after his initial sentence was
vacated on direct appeal, see United States v. Osuji, 413 F.
App’x 603 (4th Cir. 2011), Paul Osuji now seeks recourse in this
court a second time, attempting to challenge several of his
convictions as well as the sentence newly imposed upon him. We
have thoroughly reviewed the record, and we affirm.
Osuji first asserts that the district court erred in
sentencing him on five of the money laundering counts of which
he was convicted, contending that the relevant convictions
should have been vacated pursuant to this court’s reasoning in
his direct appeal, which vacated the pertinent convictions with
respect to his codefendant. As the Government correctly
observes, however, Osuji failed to raise this argument in his
initial appeal. Thus, his present attempts to challenge his
convictions are barred by the mandate rule. See United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (the mandate rule
“forecloses relitigation of issues expressly or impliedly
decided by the appellate court,” as well as “issues decided by
the district court but foregone on appeal”); Omni Outdoor
Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505
(4th Cir. 1992) (“[W]here an argument could have been raised on
an initial appeal, it is inappropriate to consider that argument
on a second appeal following remand.”).
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Osuji also attacks the district court’s application of
the Guidelines to his case. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). In assessing
whether a sentencing court properly applied the Guidelines, the
district court’s factual findings are reviewed for clear error
and its legal conclusions are reviewed de novo. United
States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008). We will
“find clear error only if, on the entire evidence, we are left
with the definite and firm conviction that a mistake has been
committed.” United States v. Manigan, 592 F.3d 621, 631 (4th
Cir. 2010) (internal quotation marks and citation omitted).
Osuji’s first argument with respect to his sentence
alleges that the district court erred in assigning him a 2-level
enhancement under USSG § 3B1.3 for abuse of a position of trust.
We have reviewed Osuji’s contentions and conclude that they are
squarely inconsistent with circuit precedent. See United
States v. Bolden, 325 F.3d 471, 504 (4th Cir. 2003).
Osuji next claims that he was improperly assigned a 4-
point leadership role enhancement under USSG § 3B1.1(a). In our
view, however, the record evidence does not support a conclusion
that the district court committed clear error in applying the
enhancement to Osuji. Cf. United States v. Cameron, 573 F.3d
179, 184-86 (4th Cir. 2009).
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Finally, Osuji takes issue with the district court’s
conclusion that his offenses involved a loss of more than $1
million, triggering a 16-level enhancement under USSG
§ 2B1.1(b)(1)(I). Of course, § 2B1.1(b) tethers the relevant
loss calculation to “the greater of actual loss or intended
loss.” USSG § 2B1.1, cmt. n.3(A)(i). And a district judge may
rely on the amount that a defendant billed to Medicare “as prima
facie evidence of the amount of loss he intended to cause.”
United States v. Miller, 316 F.3d 495, 504 (4th Cir. 2003).
Notwithstanding Osuji’s assertion that the loss amount should be
reduced by the value of the medical equipment that some of the
patients involved in the scheme may have been entitled to
receive, the district court expressly found that the existence
of any such eligible patients would have been a mere fortuity
that was not expected by Osuji. In other words, the district
court specifically found that Osuji intended to cause Medicare
to suffer a loss in the full amount which he billed to it. The
district court’s calculation of the loss intended by Osuji’s
offenses was therefore not erroneous.
Accordingly, we affirm the judgment of the district
court. We deny Osuji’s pending motion for leave to file a pro
se supplemental brief. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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material before the court and argument will not aid the
decisional process.
AFFIRMED
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