         10-3427(L)
         USA v. Oyewumi, et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 29th day of March, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                         Circuit Judges.
 9                MIRIAM GOLDMAN CEDARBAUM
10                         District Judge.*
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                 10-3427-cr, 10-3911-cr, 10-
18                                                           4035-cr
19
20       TAIWO ADEKANBI, AKA TAIYE, ADEMILOLA OGUNMOKUN, AKA JIMMY,
21       AKA ABURO, AKA OLASUPO OGUNMOKUN,
22
23                                     Defendants,
24
25       KAY OYEWUMI, FNU LNU, AKA TONY MCKINNON, AKA REGINAL DAVIS,
26       AKA SAEED, TUNDE OGUNRINKA, AKA BABA TOLANI,
27
28                                     Defendants-Appellants,
29

                *
               Judge Miriam Goldman Cedarbaum, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1
 2   FOR APPELLANT
 3   Fnu Lnu a/k/a
 4   Tony McKinnon a/k/a
 5   Reginal Davis a/k/a
 6   Saeed:                 STEVEN R. PEIKIN (Alexander J.
 7                          Willscher, Allison Caffarone, on the
 8                          brief), Sullivan & Cromwell, New
 9                          York, NY.
10
11   FOR APPELLANT
12   Tunde Ogunrinka
13   a/k/a Baba Tolani:     THOMAS F.X. DUNN, New York, NY.
14
15   FOR APPELLANT
16   Kay Oyewumi:           MARY ANNE WIRTH, Bleakley Platt &
17                          Schmidt, LLP, White Plains, NY.
18
19   FOR APPELLEE:          DANIEL S. GOLDMAN, Assistant United
20                          States Attorney, (Katherine Polk
21                          Failla, Assistant United States
22                          Attorney, on the brief), for Preet
23                          Bharara, United States Attorney for
24                          the Southern District of New York,
25                          New York, NY.
26
27        Appeal from the United States District Court for the
28   Southern District of New York (Sullivan, J.).
29
30       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

31   AND DECREED that the judgment of the district court be

32   AFFIRMED.

33       Defendants Ogunrinka, Oyewumi, and Fnu Lnu a/k/a Saeed

34   appeal from judgments of conviction entered on September 28,

35   2010, in the United States District Court for the Southern

36   District of New York, following a seven-day jury trial

37   before the Honorable Richard J. Sullivan.   We address Fnu

                                  2
1    Lnu’s appeal in a separate Per Curiam opinion filed

2    contemporaneously with this Summary Order.

3        Here we address only the appeals of Ogunrinka and

4    Oyewumi.   In Oyewumi’s case, defense counsel has moved to

5    withdraw pursuant to Anders v. California, 386 U.S. 738

6    (1967), and the government has moved to dismiss Oyewumi’s

7    appeal based on the appeal waiver contained in his plea

8    agreement, and, in the alternative, for summary affirmance

9    of Oyewumi’s conviction and sentence. Ogunrinka appeals his

10   sentences as being procedurally and substantively

11   unreasonable.

12       We assume the parties’ familiarity with the underlying

13   facts and procedural history of this case.

14   1. Ogunrinka’s Fifth and Sixth Amendment Claims

15       Appellant Ogunrinka argues that the district court

16   violated his Sixth Amendment right to a trial by jury and

17   his Fifth Amendment Due Process rights because the district

18   court based Ogunrinka’s sentence on its finding that a

19   preponderance of the evidence established that Ogunrinka was

20   responsible for between 100 and 400 grams of heroin.     At

21   trial, applying a reasonable doubt standard, the jury found

22   that Ogunrinka was responsible for less than 100 grams of

23   heroin.

                                   3
1        The district court committed no constitutional or legal

2    errors in using the preponderance of the evidence standard

3    in calculating the drug quantity involved in Ogunrinka’s

4    criminal conduct and thereafter sentencing defendant

5    accordingly.   See United States v. Vaughn, 430 F.3d 518, 525

6    (2d Cir. 2005).     We therefore affirm the district court’s

7    sentence of 63 months’ imprisonment.

8    2. Ogunrinka’s U.S.S.G. § 3B1.2 Claim

9        Ogunrinka also contends that the district court erred

10   in declining to impose a “minor role” reduction pursuant to

11   section 3B1.2(b).     To be eligible for a minor role

12   adjustment, “the defendant’s conduct must be minor or

13   minimal as compared to the average participant in such a

14   crime.”   United States v. Carpenter, 252 F.3d 230, 235 (2d

15   Cir. 2001) (internal quotation marks omitted).     The district

16   court’s findings of fact were well-founded in the record.

17   We find no error in the court’s decision that Ogunrinka was

18   not a minor participant in the conspiracy.

19       Based on the foregoing, we find Ogunrinka’s 63-month

20   sentence was both procedurally and substantively reasonable.

21   3. Oyewumi

22       Mary Anne Wirth moves to be relieved as counsel for Kay

23   Oyewumi, pursuant to Anders v. California, 386 U.S. 738


                                     4
1    (1967), and the government moves to dismiss Oyewumi’s

2    appeal, or in the alternative, for summary affirmance.

3    Because we find that Oyewumi’s plea agreement included a

4    valid waiver of his right to appeal a within-Guidelines

5    sentence, we grant Wirth’s motion to be relieved as counsel

6    and grant the government’s motion to dismiss Oyewumi’s

7    appeal.

8        For the foregoing reasons, the judgment of the district

9    court with regard to both Ogunrinka and Oyewumi is AFFIRMED.

10   This summary order disposes of Mary Anne Wirth’s Anders

11   Motion as well as the Government’s motion for summary

12   affirmance or dismissal of Oyewumi’s appeal.    Both pending

13   motions are therefore moot.

14
15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18




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