                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                     August 19, 2004
                           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, Houston
                       USDC No. H-01-CR-764-1
_________________________________________________________________

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:1

       Osamor was charged by indictment with conspiracy to possess

stolen mail, to transport stolen property, and to commit mail fraud

(Count One), conspiracy to launder funds (Count 2), 20 counts of

mail fraud and aiding and abetting mail fraud (Counts 3-22), and 20

counts of possession of stolen mail, specifically checks, and

aiding and abetting the possession of such stolen mail (Counts 23-

42).       The indictment came after law enforcement agents, armed with

an   arrest     warrant,   forcibly    entered   Osamor’s   house,   arrested

Osamor, conducted a protective sweep of the home, and, after


       1
      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this opinion should not be published and is not precedent except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.
securing the residence, obtained a search warrant for the home.

Pursuant to the search warrant, agents searched Osamor’s home and

discovered evidence of bank records, brokerage accounts, credit

applications, and mail in the names of other persons.

      The case proceeded to a jury trial.           Prior to submission of

the   case    to   the   jury,   the   Government   indicated   that   it   was

abandoning certain counts.         The jury returned guilty verdicts on

counts 1-2, 7-18, 27-33, and 35-38, which represented all of the

counts submitted to the jury.

      Pertinent to this appeal, the probation officer determined,

under the 2000 version of the United States Sentencing Guidelines,

that Osamor’s base offense level for his conviction on Count 2 was

23.       Osamor objected to the assignment and the district court

overruled his objection.

      Osamor       was   sentenced     to   60   months’ imprisonment and

three years’ supervised release on Counts 1, 27-33, and 35-38.               He

was sentenced to concurrent terms of 175 months’ imprisonment and

five years’ supervised release on Counts 2 and 7-18.              Osamor was

also ordered to provide restitution in the amount of $1,408,438.68.

Acting upon Osamor’s oral request, the clerk of the district court

filed a timely notice of appeal on Osamor’s behalf.2

      2
      Osamor’s brief challenges (1) the district court’s denial of
his motion to suppress evidence; (2) the sufficiency of the
evidence; (3) the prosecutor’s closing argument; (4) the jury
instructions; and (5) the district court’s application of the
United States Sentencing Guidelines (“U.S.S.G.”) §§ 2S1.1, 3B1.1,
and 2S1.1(b)(2)(I). The only issue warranting discussion is the

                                        2
     Osamor argues that the district court erred in assigning a

base offense level of 23 to his money laundering conspiracy offense

under U.S.S.G. § 2S1.1.   We disagree.3

     We review the district court's interpretation and application

of the Sentencing Guidelines de novo, United States v. Charles, 301

F.3d 309, 312 (5th Cir. 2002) (en banc), and its factual findings

for clear error.   United States v. Paul, 274 F.3d 155, 161 (5th

Cir. 2001).

     In the instant case, Count 2 of the indictment charged Osamor

with conspiracy to launder funds under 18 U.S.C. § 1956(h).   Under

§ 1956(h) a person who conspires to commit any offense listed in §

1956 is subject to the same penalties as those provided for the

commission of the actual offense.    In the instant case, Osamor was

charged both with conspiring to violate § 1956(a)(1)(A)(i), which

carries a base offense level of 23, and with conspiring to violate

§ 1956(a)(1)(B)(i), which carries a base offense level of 20.   See

U.S.S.G. § 2S1.1(a)(1)&(2).4


district court’s application of U.S.S.G. § 2S1.1. With respect to
Osamor’s remaining arguments, we find that the district court
committed no reversible error and the district court’s judgment is,
therefore, AFFIRMED.
     3
      We note that the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (June 24, 2004) does not
affect our disposition of this appeal. See United States v.
Pineiro, No. 03-30437, __ F.3d __, 2004 WL 1543170 (5th Cir. July
12, 2004).
     4
      The pertinent portion of U.S.S.G. § 2S1.1 provides that the
base offense level for the laundering of monetary instruments is
“23, if convicted under 18 U.S.C. § 1956(a)(1)(A), (a)(2)(A), or

                                 3
     The jury charge defined the substantive offense of money

laundering to require either “that the Defendant intended to

promote the carrying on of the specified unlawful activity [a

violation of § 1956(a)(1)(A)(i)] or knew that the transaction was

designed in whole or in part to conceal or disguise the nature, the

location, the source, the ownership or the control of the proceeds

of   specified    unlawful    activity   [a    violation    of   §




(a)(3)(A)”; otherwise, the defendant’s base offense level is 20.
U.S.S.G. § 2S1.1(a)(1)&(2).

                                4
1956(a)(1)(B)(i)].”    (Emphasis   added.)5   The   jury   returned   a

general guilty verdict.

     At sentencing Osamor objected to the PSR’s assignment of a

base offense level of 23 for his conviction for conspiracy to

launder funds under 18 U.S.C. § 1956(h).      Osamor argued that no

election had been made by the jury indicating the means by which he

violated § 1956(h); conspiring to violate § 1956(a)(1)(A)(i) --

     5
      The relevant portion of the statute provides that:

          (a)(1) Whoever, knowing that the property
          involved in a financial transaction represents
          the proceeds of some form of unlawful
          activity, conducts or attempts to conduct such
          a financial transaction which in fact involves
          the proceeds of specified unlawful activity--

               (A)(i) with the intent to promote
               the   carrying  on    of specified
               unlawful activity; or

                            .      .   .

               (B) knowing that the transaction is
               designed in whole or in part--

               (i) to conceal or disguise the
               nature, the location, the source,
               the ownership, or the control of the
               proceeds   of   specified   unlawful
               activity

                            .      .   .

               shall be sentenced to a fine of not
               more than $500,000 or twice the
               value of the property involved in
               the   transaction,   whichever   is
               greater, or imprisonment for not
               more than twenty years, or both.

18 U.S.C. § 1956(a)(1).

                                   5
enumerated base offense level of 23 -- or conspiring to violate §

1956(a)(1)(B)(i) -- base offense level of 20.           The district court

overruled his objection but did not specifically determine that

Osamor had violated § 1956(a)(1)(A)(i).

     “A particular guideline (in the base offense level or in a

specific   offense    characteristic)      may   expressly    direct      that   a

particular factor be applied only if the defendant was convicted of

a particular statute” -- here, conviction under § 1956(a)(1)(A)(i)

-- and in this case neither the jury nor the district court

expressly determined that Osamor was convicted under 18 U.S.C. §

1956(a)(1)(A).     See United States v. Rodriguez, 278 F.3d 486, 493

(5th Cir. 2002).

     First, it is clear that a jury finding that Osamor violated §

1956(a)(1)(A)(i) is not required.          In United States v. Keith, 230

F.3d 784, 787 (5th Cir. 2000), a panel of this court held that “a

fact used in sentencing that does not increase the penalty beyond

the statutory maximum need not be alleged in the indictment and

proved to a jury beyond a reasonable doubt.”           Id. at 787.         Here,

Osamor’s   sentence    of   175   months   imprisonment      and   five    years

supervised release does not exceed the statutory maximum for a

violation of § 1956.        See United States v. Conley, 349 F.3d 840

(5th Cir. 2003) (stating that maximum sentence for conspiracy to

launder money is 20 years).

     Second, the Supreme Court’s decision in Edwards v. United

States, 523 U.S. 511 (1998) precludes Osamor’s objections. In that

                                      6
case, the defendants were charged with conspiring to possess both

cocaine and crack.       Edwards, 523 U.S. at 512-13.                      At trial the

district court charged the jury that the government was required to

prove that the conspiracy involved cocaine or crack.                        Id. at 513.

The jury returned a general guilty verdict and the judge sentenced

the defendants based upon his finding that each defendant had

conspired to possess both cocaine and crack.                     Id.

       The defendants argued that the use of the word “or” in the

jury   charge   required     the     district       court     to    assume    that     the

conspiracy only involved cocaine, which is treated more leniently

by the Sentencing Guidelines than crack.                   Id.     The Supreme Court

rejected this    argument      and    held     that     the    district      judge     was

authorized to determine for sentencing purposes whether crack, as

well as cocaine, was involved in the offense.                      Id.

       In the instant case, the jury charge defined the substantive

offense of money laundering to include either § 1956(a)(1)(A)(i) or

§ 1956(a)(1)(B)(i).     The jury rendered a general verdict which did

not    specifically     find       that       its     decision           rested   on     §

1956(a)(1)(A)(i) as opposed to § 1956(a)(1)(B)(i).                          Moreover, §

2S1.1 “expressly directs” that a base offense level of 23 is only

appropriate when the conviction rests on one of the enumerated

offenses,   including    a   violation         of   §   1956(a)(1)(A)(i).              See

Rodriguez, 278 F.3d at 493.           The Edwards decision, however, also

instructs    that     this     finding        --    that      Osamor        violated     §

1956(a)(1)(A)(i) -- may be made by the district judge.

                                          7
     In this case, the district judge did not explicitly find that

Osamor had violated § 1956(a)(1)(A)(i).              In overruling Osamor’s

objections, however, the district court noted that “[t]he higher

base offense level of 23 as compared to the base offense level of

20, applicable to other money laundering offenses, is applied in

sentencing   defendants      whose   commission    of    a     money   laundering

offense    encouraged   or    facilitated    the     commission        of   further

crimes.”   Consequently, the district court’s rejection of Osamor’s

argument urging application of a base offense level of 20 clearly

implies    that   the   district     court   found      that    Osamor’s      money

laundering offense “encouraged or facilitated other crimes” -- a

violation of § 1956(a)(1)(A) -- and is therefore subject to the

higher base offense level of 23.             The record supports such a

finding.   For these reasons, the district court’s application of §

2S1.1(a)(1) was proper and its judgment is in all respects

                                                                        AFFIRMED.




                                       8
