                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-4833


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSEPH OSIOMWAN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:12-cr-00265-WDQ-1)


Submitted:   November 25, 2014            Decided:   December 5, 2014


Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Gary A. Ticknor, Columbia, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James Thomas Wallner,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               After       a    bench       trial,        the     district       court    convicted

Joseph Osiomwan of conspiracy to distribute and possess with

intent to distribute heroin, in violation of 21 U.S.C. § 846

(2012),    and       possession         with       intent         to    distribute       heroin,      in

violation of 21 U.S.C. § 841(a) (2012).                                    The district court

sentenced      Osiomwan         to     121      months      of     imprisonment         and    he    now

appeals.       For the following reasons, we affirm.

               Osiomwan         first       argues         on    appeal     that    the       district

court   erred        in    failing         to    suppress         the     evidence      authorities

obtained from a warrantless search of his cell phones seized

incident    to       his       arrest.           As    Osiomwan         failed     to    raise      this

argument before the district court, we review this issue for

plain error.           See United States v. Lighty, 616 F.3d 321, 365

(4th    Cir.     2010).           To     establish          plain        error,    Osiomwan         must

establish       an     error         that       was       plain    and     that     affected         his

substantial rights.               Id.         An error is not plain if there is no

controlling       precedent            from      the      Supreme        Court    or    this     court

directly       resolving         the       contested            issue.      United       States       v.

Beasley, 495 F.3d 142, 149 (4th Cir. 2007).                                 We have thoroughly

reviewed    the       record         and     the      relevant         legal     authorities         and

conclude       that       Osiomwan         has     failed         to    demonstrate       that      the

district court committed plain error.



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            Osiomwan next argues that the district court erred in

accepting     trial       counsel’s       stipulation       that       one        of     the

Government’s      witnesses        was    an    expert     without      ascertaining

whether     Osiomwan      consented       to   the   stipulation.             Osiomwan,

however, did not raise this objection in the district court and

therefore we review this issue as well for plain error.                                 See

United States v. Baptiste, 596 F.3d 214, 222 (4th Cir. 2010).

We conclude Osiomwan has failed to meet this standard.                                  See

Beasley, 495 F.3d at 149.

            Osiomwan next challenges the sentence as procedurally

and    substantively           unreasonable,      arguing       that      the          court

improperly considered unreliable evidence and acquitted conduct

at    sentencing.         We    review     a   sentence     for    reasonableness,

applying    an    abuse    of    discretion      standard.         Gall      v.    United

States,    552    U.S.    38,    51   (2007);    see     also   United       States      v.

Layton, 564 F.3d 330, 335 (4th Cir. 2009).                        In so doing, we

examine     the    sentence       for     “significant       procedural           error,”

including “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to    consider     the    [18      U.S.C.]      § 3553(a)       [(2012)]      factors,

selecting    a    sentence       based    on    clearly    erroneous         facts,      or

failing to adequately explain the chosen sentence.”                          Gall, 552

U.S. at 51.         We presume on appeal that a sentence within a

properly    calculated         advisory    Guidelines     range    is     reasonable.

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United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see

Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding

appellate     presumption          of    reasonableness          for       within-Guidelines

sentence).

              At sentencing, the government need only establish drug

quantities by a preponderance of the evidence.                             United States v.

Brooks, 524 F.3d 549, 560 n.20, 562 (4th Cir. 2008); United

States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996).                                        “[W]here

there is no drug seizure or the amount seized does not reflect

the   scale    of     the    offense,        the    court       shall       approximate       the

quantity      of     the    controlled        substance.”              United       States    v.

D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994) (internal quotation

marks omitted).            We afford the district court “broad discretion

as to what information to credit in making its calculations.”

Cook, 76 F.3d at 604 (internal quotation marks omitted).

              In    addition,       “[w]hen        determining         facts       relevant    to

sentencing,        such      as     an     approximated             drug     quantity,        the

Sentencing         Guidelines        allow        courts       to      consider          relevant

information        without        regard     to     its    admissibility            at     trial,

provided      that     the        information        has       sufficient          indicia     of

reliability to support its probable accuracy.”                             United States v.

Crawford, 734 F.3d 339, 342 (4th Cir. 2013) (internal quotation

marks   omitted),          cert.    denied,       134     S.   Ct.     1528    (2014).         We

conclude      that    the     testimony       on     which      the        court    relied     in

                                              4
determining      the     drug   weight       for    sentencing     purposes   had

sufficient indicia of reliability.                 The court also did not err

in considering acquitted conduct proved by a preponderance of

the   evidence    in   determining    the     applicable     Guidelines     range,

within the statutory penalty range established by the verdict.

See United States v. Lawing, 703 F.3d 229, 241 (4th Cir. 2012),

cert. denied, 133 S. Ct. 1851 (2013).

            Accordingly, we affirm the judgment of the district

court.     We deny Osiomwan’s motion to file a pro se supplemental

brief.     We dispense with oral argument because the facts and

legal    contentions     are    adequately     presented     in   the   materials

before   this    court    and   argument     would    not   aid   the   decisional

process.

                                                                          AFFIRMED




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