                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4570


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

IMOUDU IZEGWIRE, a/k/a David, a/k/a Imoudu Igewire,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Walter D. Kelley, Jr.,
District Judge. (2:05-cr-00153-WDK-JEB-3)


Submitted:   January 14, 2010               Decided:    March 22, 2010


Before TRAXLER,   Chief   Judge,   and   SHEDD   and   DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Warren E. Gorman, Chevy Chase, Maryland, for Appellant. Dana J.
Boente, Acting United States Attorney, Alexandria, Virginia,
Darryl J. Mitchell, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Imoudu       Izegwire      appeals      from     his    jury      convictions         for

conspiracy to distribute and possess with intent to distribute

one kilogram or more of heroin, in violation of 21 U.S.C.A.

§§ 846 &     841(a)(1)       (West      1999)     (Count    I),    and      conspiracy      to

launder    monetary       instruments,           in   violation        of    18     U.S.C.A.

§§ 1956(h) & 1956 (West Supp. 2009) (Count II), as well as from

the 120-month concurrent sentences imposed by the district court

for these convictions.           We affirm.



                                             I.

     On    November       18,        2005,   a    federal    grand          jury    indicted

Izegwire    and    two    of     his     co-conspirators,         Tolulope         John    and

Fatoumata Toure, on one count of conspiracy to distribute and

possess    with    intent       to    distribute      heroin,      and      one    count   of

conspiracy    to     launder         monetary      instruments. 1            Izegwire      was

arrested    and    made    his       initial      appearance      on   March       8,   2006.

John, who had left the United States in late 2000, was living in

the United Kingdom.          He was arrested there on March 1, 2006, but

successfully fought extradition to the United States until March

8, 2007.     He subsequently pled guilty prior to trial.                           Toure was


     1
       John and Toure were also charged with numerous substantive
money laundering offenses.



                                             2
arrested in the United States but also pled guilty prior to

trial.

     Following a series of pretrial motions, including motions

to continue filed by both Izegwire and the government, trial

commenced on February 26, 2008.                 On February 29, 2008, the jury

convicted    Izegwire         of   both   counts.     Using       a   special    verdict

form, the jury found that the United States had established, by

a   preponderance        of    the     evidence,     “that       at   least     one   act

committed in furtherance of the alleged conspirac[ies] occurred

in the Eastern District of Virginia.”                 S.J.A. 178, 179-80.              The

jury also found that Izegwire “conspired to distribute and/or

conspired to possess with intent to distribute . . . [s]ome

amount     less    than       ‘100    grams’    of   a     mixture      or     substance

containing a detectable amount of heroin.”                        S.J.A. 179.         This

finding     of    drug    quantity        resulted    in     a    statutory      maximum

sentence    of    20     years       imprisonment    for     the      drug    conspiracy

charge.     The statutory maximum for the money laundering charge

was 10 years imprisonment.

     At sentencing, the district court attributed 500 grams of

heroin to Izegwire, resulting in an offense level of 28 for the

heroin conspiracy.            See U.S.S.G. § 2D1.1(c)(6) (2007). 2               With a


     2
       The money laundering conspiracy conviction resulted in an
offense level of 22.



                                            3
three-level enhancement for his role in the offense, Izegwire’s

guideline       range       was     108    to    135    months    imprisonment.           The

district        court       sentenced       Izegwire       to    concurrent       120-month

sentences on each count, followed by three years of supervised

release.

                                                 II.

                                                 A.

       Izegwire first appeals the district court’s denial of his

motion     to    dismiss          the    indictment      based    upon     the    five-year

statute of limitations.                   We review de novo the trial court’s

denial of the motion.                  See United States v. Uribe-Rios, 558 F.3d

347, 351 (4th Cir. 2009).

       Under 18 U.S.C.A. § 3282(a) (West Supp. 2009), “no person

shall be prosecuted, tried, or punished for any offense, not

capital, unless the indictment is found or the information is

instituted within five years next after such offense shall have

been     committed.”              In    conspiracy      offenses,       the    “statute    of

limitations       .     .   .   runs      from    the    last   overt    act     during   the

existence of the conspiracy.”                         Fiswick v. United States, 329

U.S. 211, 216 (1946); see also United States v. Brown, 332 F.3d

363, 373 (6th Cir. 2003).                       Furthermore, the conspiracy, once

established,          “is    presumed       to    continue      unless    or     until    the

defendant shows that it was terminated or he withdrew from it.”

United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).                                 The

                                                  4
“mere cessation of activity in furtherance of the conspiracy is

insufficient.                The      defendant          must     show        affirmative         acts

inconsistent with the object of the conspiracy and communicated

in a manner reasonably calculated to reach his co-conspirators.

The burden of proving withdrawal rests on the defendant.”                                           Id

(citations omitted).

       We     find      no   error       in   the       district       court’s       rejection      of

Izegwire’s motion to dismiss the charges against him based upon

the statute of limitations.                         Izegwire and his co-conspirators

were indicted on November 18, 2005.                              Izegwire does not argue

that    the       indictment       was    not       filed      within        five   years    of    the

termination of the charged conspiracies.                                However, he contends

that    he       withdrew      from    the     conspiracies            more    than    five    years

prior       to    the    indictment,           i.e.,          before        November   18,     2000.

Izegwire, however, has failed to demonstrate that he withdrew

from the conspiracies prior to November 18, 2000, or that the

conspiracies          ended     before        that      date.          On    the    contrary,     the

government’s evidence indicates that neither occurred.                                        There

was    evidence         that    members        of       the    conspiracies         continued       to

commit overt acts in furtherance of the conspiracy well after

November 18, 2000.              In addition, there was evidence that between

December         1,   2000,     and      February         22,    2001,        Izegwire      directed

Helena Hollo, his girlfriend at the time, to conduct several

wire transfers of drug proceeds to John in the United Kingdom,

                                                    5
in   furtherance    of    both   the    drug      conspiracy    and   the    money

laundering conspiracy.       Accordingly, the district court did not

err in denying Izegwire’s motion to dismiss on this basis.

                                       B.

     Izegwire next appeals the district court’s denial of his

motion to dismiss the charges against him for improper venue and

its submission of the venue determination to the jury for its

consideration.

     “[A]ny     offense   against      the    United   States    begun      in   one

district and completed in another, or committed in more than one

district, may be . . . prosecuted in any district in which such

offense   was    begun,    continued,        or   completed.”      18    U.S.C.A.

§ 3237(a) (West 2000).       “[A] conspiracy may be prosecuted in any

district in which the agreement was formed or in which an act in

furtherance of the conspiracy was committed.”                  United States v.

Gilliam, 975 F.2d 1050, 1057 (4th Cir. 1992).                    “To establish

venue, the government need only show that an act occurred in the

district by a preponderance of the evidence.”                  United States v.

Al-Talib, 55 F.3d 923, 928 (4th Cir. 1995).

     While we normally review the issue of venue de novo, see

United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001),

“[s]ubmitting the venue question to the jury is an appropriate

procedure for resolving a factual dispute relating to venue,”

United States v. Ebersole, 411 F.3d 517, 526 n.10 (4th Cir.

                                        6
2005).           Here, the jury found that the government had proven

“that       at    least       one    act    committed       in    furtherance             of    [each]

alleged          conspiracy          occurred       in     the        Eastern        District          of

Virginia.”             S.J.A. 178, 179-80.               This finding was supported by

the evidence.             At a minimum, the government presented evidence

that a co-conspirator collected drug money from Izegwire and

another      co-conspirator            for    John       after    John        left       the    United

States, and that at least one wire transfer of drug proceeds was

sent    by       the    co-conspirator         from      Alexandria,          Virginia         in     the

Eastern      District         of    Virginia       to    John    in    the     United         Kingdom.

Accordingly,            the     district       court       did        not     err        in    denying

Izegwire’s motion to dismiss the charges against him for lack of

venue       or     in     submitting         the       issue     to     the       jury        for    its

determination.

                                                   C.

       Izegwire next appeals the district court’s denial of his

motion to dismiss the charges against him based upon an alleged

violation of the Speedy Trial Act.                        See 18 U.S.C.A. § 3161 (West

2000    &    Supp.       2009).        We    review       the    district         court’s           legal

conclusions de novo and its factual findings for clear error.

See    United      States       v.    Stoudenmire,         74    F.3d       60,     63    (4th       Cir.

1996).

        The Speedy Trial Act provides that the trial of a defendant

charged in an indictment “shall commence within seventy days

                                                   7
from the filing date . . . of the . . . indictment, or from the

date the defendant has appeared before a judicial officer of the

court    in    which      such   charge      is     pending,      whichever       date    last

occurs.”       18 U.S.C.A. § 3161(c)(1) (West Supp. 2009).                           Pertinent

to the case at hand, however, the Act provides for a number of

excludable delays, including delay resulting from the granting

of a continuance based on a finding that “the ends of justice

served by taking such action outweigh the best interest of the

public    and      the    defendant     in    a     speedy      trial.”         18    U.S.C.A.

§ 3161(h)(7)(A) (West Supp. 2009).                      Factors to be considered in

deciding       whether     to    grant       such       a    continuance     include        the

defendant’s need for “reasonable time to obtain counsel,” for

“continuity of counsel,” and for “reasonable time necessary for

effective          preparation”          of         counsel.               18         U.S.C.A.

§ 3161(h)(7)(B)(iv).             Additional          excludable         periods      of   delay

include       “delay     resulting     from       any       proceeding,    including       any

examinations,        to    determine      the     mental       competency       or    physical

capacity      of   the    defendant,”        18     U.S.C.A.      § 3161(h)(1)(A),          and

“delay resulting from any pretrial motion, from the filing of

the motion through the conclusion of the hearing on, or other

prompt        disposition         of,         such           motion,”      18         U.S.C.A.

§ § 3161(h)(1)(D).           The time from the filing of a motion until

the conclusion of the hearing on the motion is excluded, even if

the delay in holding the hearing was not reasonably necessary.

                                              8
See Henderson v. United States, 476 U.S. 321, 330 (1986).                             “In a

case   involving       several         defendants,       time    excludable      for    one

defendant is excludable for all defendants.”                          United States v.

Jarrell, 147 F.3d 315, 316 (4th Cir. 1998).                       “There is a strong

preference      for    trying      codefendants          together     as   it    promotes

judicial efficiency by avoiding successive trials involving the

same evidence.”         United States v. Khoury, 901 F.2d 948, 972

(11th Cir. 1990).           Thus, “reasonable delay attributable to the

fugitive   status      of    a    co-indictee       is    excludable       as    to   those

defendants awaiting trial.”               Id.

       Having reviewed the record, including the numerous motions

filed by both sides that resulted in delays as well as the

extradition      proceedings           pursued   against         John,     we    find    no

reversible error by the district court in denying Izegwire’s

motion to dismiss under the Speedy Trial Act.                              The district

court ordered six continuances of Izegwire’s trial, some at the

request of the defendant for various reasons, and some at the

request    of    the     government          while       it     was    attempting       the

extradition of John.             In each case, the continuances and delays

were authorized by the Act as excludable periods of time and the

district   court      made       the    requisite    finding      that     the   ends    of

justice served by the continuances outweighed the best interests

of the public and the defendant in a speedy trial, as required



                                             9
by 18 U.S.C.A. § 3161(h)(7)(A).            Accordingly, Izegwire is not

entitled to relief under the Speedy Trial Act.



                                   III.

     Izegwire also challenges his sentence, contending that the

district court erred in finding that he was responsible for 500

grams of heroin when the jury had made a finding that he was

responsible for less than 100 grams of heroin, and erred in

applying a three-level enhancement for his role as a manager or

supervisor.

     As noted earlier, the jury returned a special verdict form

at   the   conclusion   of   the   trial    finding   that    Izegwire      had

“conspired to distribute and/or conspired to possess with intent

to distribute . . . [s]ome amount less than ‘100 grams’ of a

mixture or substance containing a detectable amount of heroin.”

S.J.A. 179.    This finding set the statutory maximum sentence for

the drug conspiracy at 20 years.          The statutory maximum sentence

for the money laundering conspiracy was 10 years.

     The    district    court   subsequently     found,      based   upon    a

preponderance of the evidence, that Izegwire was supplied with a

total of 500 grams of heroin by his co-conspirator John and

applied a three-level enhancement for Izegwire’s role in the

offense.    This resulted in a guideline sentencing range of 108

to 135 months imprisonment.        The district court then imposed a

                                    10
sentence of 120 months, which was within the guideline range and

statutory      maximum   for    each    conviction.     On   appeal,     Izegwire

contends that the district court erred by attributing a drug

quantity to him for purposes of sentencing that exceeded the

jury’s findings on the special verdict form.

     Since Apprendi v. New Jersey, drug quantities that increase

the statutory maximum sentence are elements of the offense and

thus must be charged in the indictment and submitted to the jury

for proof beyond a reasonable doubt.                  See 530 U.S. 466, 490

(2000).     While Apprendi affects the calculation of the statutory

maximum sentence that may be imposed, it does not affect the

calculation      of   the      applicable     sentencing     guideline    range.

“Sentencing     judges   may     find   facts   relevant     to   determining   a

Guidelines range by a preponderance of the evidence, so long as

that Guidelines sentence is treated as advisory and falls within

the statutory maximum authorized by the jury’s verdict.”                  United

States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008), cert.

denied 129 S. Ct. 950 (2009); see also United States v. Perry,

560 F.3d 246, 258 (4th Cir. 2009) (holding that, after United

States    v.   Booker,   543     U.S.   220   (2005),   district    courts   may

“continue to make factual findings concerning sentencing factors

. . . by a preponderance of the evidence” and consider acquitted

conduct when applying the guidelines in an advisory fashion).

As long as the sentence imposed does not exceed the maximum

                                         11
sentence authorized by the jury’s verdict, the district court

does   not   violate   the   Sixth     Amendment    by     imposing   a   sentence

based on a higher drug quantity than was determined by the jury.

See United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008).

       Here, the 120-month sentence imposed by the court was well

within   the   statutory     maximum    of   20    years    authorized     by   the

jury’s findings on drug quantity.                 Accordingly, the sentence

does not violate the Sixth Amendment.                To the extent Izegwire

contends that the district court’s factual finding was otherwise

in error, we are unpersuaded.            Drug quantity determinations are

reviewed for clear error.         See United States v. Fullilove, 388

F.3d 104, 106 (4th Cir. 2004).               The district court found the

testimony of John, Izegwire’s co-conspirator, to be credible and

found that John had supplied Izegwire with a total of 500 grams

of heroin.     Having reviewed the record as a whole, we cannot say

that these findings were clearly erroneous.

       We likewise reject Izegwire’s contention that the district

court erred in finding that he was a manager or supervisor and

applying the three-level increase in Izegwire’s offense level

for his role in the offense.             See U.S.S.G. § 3B1.1(b) (2007).

The enhancement was based upon evidence that Izegwire directed

Hollo to conduct wire transactions involving drug proceeds on

several occasions.      Izegwire did not contest the evidence, but

argued that the enhancement should not apply in light of his

                                        12
romantic   relationship   with   Hollo    and   because    Hollo    had   made

other, legitimate wire transfers for him during this same time

period.

      The district court’s “ruling regarding a role adjustment is

a   factual   determination   reviewed    for   clear     error.”     United

States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).                     A

defendant qualifies for the three-level enhancement if he “was a

manager or supervisor (but not an organizer or leader) and the

criminal   activity   involved   five    or   more   participants    or   was

otherwise extensive.”     U.S.S.G. § 3B1.1(b). 3          “Leadership over

only one other participant is sufficient as long as there is

some control exercised.”         United States v. Rashwan, 328 F.3d

160, 166 (4th Cir. 2003); see also U.S.S.G. § 3B1.1, cmt. n.2

(“To qualify for an adjustment under this section, the defendant

must have been the organizer, leader, manager, or supervisor of

one or more other participants.”).

      The district court found that Izegwire played a managerial

role because he directed Hollo to make the money wire transfers

to John in furtherance of the conspiracies.             Izegwire provided

her with the money, along with the names and addresses of the

recipients, and instructed her to use an alias each time she


      3
        Izegwire does not argue that             the    criminal    activity
involved fewer than five participants.



                                    13
made an illegitimate transfer.             We therefore conclude that the

district   court   did   not    clearly    err     in   finding    that   Izegwire

acted as a manager or supervisor with respect to Hollo and in

applying the three-level role enhancement on this basis.



                                     IV.

     For the foregoing reasons, we affirm Izegwire’s convictions

and sentences.     We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the   court   and     argument    would    not   aid     the   decisional

process.

                                                                          AFFIRMED




                                      14
