                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4822



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


OBAFEMI SMART OLUBUYIMO,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-04-74)


Submitted:   September 14, 2005           Decided:   October 31, 2005


Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, Meghan S. Skelton, Research and
Writing Attorney, Alexandria, Virginia, for Appellant.     Paul J.
McNulty, United States Attorney, Vincent L. Gambale, Assistant
United States Attorney, Carol A. Bell, Special Assistant United
States Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Obafemi     Smart    Olubuyimo      appeals     his     conviction         and

eighteen    month    sentence     imposed      following      a    jury       trial    for

possession of an immigration permit, plate or impression, in

violation of 18 U.S.C. § 1546(a) (2000); and his conviction and

eighteen month sentence imposed following a plea of guilty for

failure to appear, in violation of 18 U.S.C. § 3146(a)(1) (2000).

For the reasons that follow, we affirm.

            Olubuyimo     first    claims      that   there       was    insufficient

evidence to support his conviction for knowing possession of

counterfeit immigration plates.               Upon a careful review of the

record, and construing all inferences in favor of the Government,

we find substantial evidence supports the verdict.                      See Glasser v.

United States, 315 U.S. 60, 80 (1942).

            Olubuyimo     next     contends      that      the     district          court

improperly    refused    his    oral   request       to   instruct       the    jury    on

spoliation of evidence.          “The standard of review for determining

whether the district court should have given a jury instruction is

abuse of discretion.”          United States v. Ruhe, 191 F.3d 376, 384

(4th Cir. 1999).         “A district court’s refusal to provide an

instruction requested by a defendant constitutes reversible error

only   if    the    instruction:       ‘(1)    was    correct;          (2)    was     not

substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important, that failure to


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give the requested instruction seriously impaired the defendant’s

ability to conduct his defense.’”   United States v. Lewis, 53 F.3d

29, 32 (4th Cir. 1995) (citations omitted).     Based on the record,

we find that the district court’s failure to give the spoliation

instruction was not an abuse of discretion and did not seriously

impair Olubuyimo’s ability to conduct his defense.

          Olubuyimo also asserts that the district court prevented

him from exercising his Sixth Amendment right to present a defense

through: (1) limiting the examination of his witnesses; and (2) its

explanation to a defense witness of his Fifth Amendment right

against self-incrimination.   This court reviews a district court’s

evidentiary rulings for abuse of discretion.       United States v.

Leftenant, 341 F.3d 338, 342 (4th Cir. 2003).   Any error “that does

not affect substantial rights must be disregarded.”    Fed. R. Crim.

P. 52(a); see also Fed. R. Evid. 103(a) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless

a substantial right of the party is affected.”).    Having carefully

reviewed the record in this case, we conclude that Olubuyimo failed

to show that the district court abused its discretion or affected

his substantial rights.

          Finally, Olubuyimo claims that the two-level enhancement

for obstruction of justice under U.S. Sentencing Guidelines Manual

(“USSG”) § 3C1.1 (2003) violated the Sixth Amendment because the

enhancement was based upon facts found by the judge, not the jury.


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Assuming that Olubuyimo preserved this issue by objecting at his

sentencing hearing based upon Blakely v. Washington, 542 U.S. 296

(2004), this court’s review is de novo.             United States v. Mackins,

315 F.3d 399, 405 (4th Cir. 2003).             On the facts of this case,

including the district court’s unambiguous statement at sentencing

that it would impose an eighteen month sentence regardless of the

impact   of    the   Blakely    decision     upon   the   federal   sentencing

guidelines, we conclude that any error under United States v.

Booker, 125 S. Ct. 738 (2005), is harmless.

              Accordingly,     we   affirm    Olubuyimo’s    conviction   and

sentence.      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




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