1Judge Pickering was a member of the original panel but

retired from the Court on December 8, 2004 and, therefore, did not

participate in this decision.

2Pursuant 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 29, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

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

USDC No. H-01-CR-764-1

_________________________________________________________________

ON REMAND FROM

THE SUPREME COURT OF THE UNITED STATES

Before JOLLY and WIENER, Circuit Judges.1

PER CURIAM:2

This court affirmed Oyenokachikem Charles Osamor’s conviction

and sentence. United States v. Osamor, 107 Fed. Appx. 438 (5th

Cir. 2004). The Supreme Court vacated and remanded for further

consideration in the light of United States v. Booker, 125 S.Ct.

738 (2005). Osamor v. United States, 125 S.Ct. 1070 (2005). We
2

requested and received supplemental letter briefs addressing the

impact of Booker.

Osamor was convicted of conspiracy to defraud the United

States, conspiracy to launder funds, 12 counts of mail fraud, and

9 counts of possession of stolen mail. Using the 2000 edition of

the Sentencing Guidelines, the probation officer grouped Osamor’s

counts of conviction. The count resulting in the highest offense

level was count 2, conspiracy to commit money laundering, which

resulted in a base offense level of 23. The probation officer

determined that the total value of the laundered funds from all of

Osamor’s fraudulent activities was $11,148,981.92, which resulted

in an offense level increase of 9 levels. This amount was later

revised to $10,997,493.98, but the reduction did not affect the

probation officer’s offense level calculation. The probation

officer also increased the offense level by 4 more levels based on

the determination that Osamor was a leader or organizer of criminal

activity that involved five or more participants. With a total

offense level of 36 and a criminal history category of I, the

guideline range of imprisonment calculated by the probation officer

was 188 to 235 months.

At the sentencing hearing, the district court concluded that

the value of laundered funds was $8,484,763.99. This reduced

Osamor’s total offense level by one to 35. With a total offense

level of 35 and a criminal history category of I, the guideline
3

range of imprisonment was 168 to 210 months. The district court

sentenced Osamor to 175 months imprisonment.

In his supplemental brief, Osamor argues that the district

court erred when it applied the Sentencing Guidelines as mandatory

rather than advisory and imposed a sentence above the sentencing

range supported by the jury verdict and his criminal history. He

asserts that plain error review does not apply because, although he

did not object to the sentencing enhancements based specifically on

Sixth Amendment grounds, he did object to the base offense level

determination on the ground that the jury had not made the required

findings to support that offense level.

The Government argues that plain error review applies because

Osamor did not object in the district court to the application of

the Sentencing Guidelines on the ground that they implicated his

Sixth Amendment right to a jury trial. We disagree. Osamor’s

written objections to the presentence report (“PSR”) contain

numerous objections to various paragraphs of the PSR on the ground

that there was no evidence presented at trial to support them. In

addition, he objected to the PSR on the following grounds:

It is unconstitutional for this court to apply

the PSR provisions as written to defendant as

the same is a factual assessment which

increases defendant’s sentence and therefore

may only be decided by a jury upon evidence

established by proof beyond a reasonable

doubt.

....
4

The United States Supreme [C]ourt has

recognized the indictment’s role in warning a

defendant of facts that may enhance his

punishment upon conviction. See e.g. Jones v.

United States, 526 U.S. 227 (1999).

The most current decision in this matter is

the United States Supreme Court ruling in

Apprendi v. New Jersey, 530 U.S. 466, holding

that “every fact that is by law a basis for

imposing or increasing punishment” is an

element of the offense, and therefore should

be presented to the jury for a finding of

guilt beyond a reasonable [doubt].

....

Assuming, arguendo, that defendant could be

classified as a leader/organizer in the within

case, defendant objects on the grounds that

such enhancement violates Apprendi, supra. It

is indisputable that four level leadership

role increase may increase the defendant’s

sentence beyond the prescribed statutory

maximum. Therefore, the issue of leadership

role must be charged in an indictment,

submitted to a jury, and the government to

prove beyond a reasonable doubt, the

defendant’s decision making authority, the

nature of his participation in the offense,

his planning of the offense, and his control

over others.

Osamor’s counsel objected on the same grounds at the sentencing

hearing.

Although Osamor did not specifically object on Sixth Amendment

grounds or on the ground that the guidelines were unconstitutional

because they were mandatory, under our precedent his objections

adequately apprised the district court that he was raising a Sixth

Amendment objection to his offense level calculation because the

government did not prove to the jury beyond a reasonable doubt the
5

facts to support the enhancements. See United States v. Olis, 429

F.3d 540, 544 (5th Cir. 2005) (defendant preserved Booker claim by

objecting “to both the district court’s loss calculation and the

burden of proof utilized by the court. His objections regarding

the loss calculation alerted the court to cases that acknowledged

the potential for a constitutional violation when sentencing facts

are not found by at least clear and convincing evidence.”); United

States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (defendant’s

Apprendi-based objection to PSR’s drug-quantity calculations was

sufficient to preserve his Booker claim); United States v. Akpan,

407 F.3d 360, 376 (5th Cir. 2005) (defendant’s objections to

district court’s determination of range of financial loss on ground

that amount had not been proven at trial and that court should

confine its determination of loss to the amount alleged in the

indictment were adequate to apprise court that he was raising a

Sixth Amendment objection to the loss calculation because the

government did not prove the amount of loss to the jury beyond a

reasonable doubt). 

When, as here, a defendant preserves Booker error, “we will

ordinarily vacate the sentence and remand, unless we can say the

error is harmless under Rule 52(a) of the Federal Rules of Criminal

Procedure.” United States v. Mares, 402 F.3d 511, 520 n.9 (5th

Cir.), cert. denied, 126 S.Ct. 43 (2005). The Government bears the

“burden of demonstrating that the error was harmless by

demonstrating beyond a reasonable doubt that the federal
6

constitutional error of which [Osamor] complains did not contribute

to the sentence that he received.” United States v. Pennell, 407

F.3d 360, 377 (5th Cir. 2005). The Government has not met that

burden. It has not pointed to any evidence in the record or

statements by the district court that would prove beyond a

reasonable doubt that the district court would have imposed the

same sentence had it acted under an advisory Guidelines regime.

For the foregoing reasons, we VACATE Osamor’s sentence and

REMAND the case to the district court for resentencing.

VACATED and REMANDED.