**UNPUBLISHED** UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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 )

S ubmitted : January 14, 2010 Decided: March 22, 2010

Before TRAXLER, Chief Judge, and SHEDD and DAVIS , Circuit Judge s. Affirmed by unpublished per curiam opinion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 ST ATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM : Imoudu Izegwire appeals from his jury convictions for conspiracy to distribute and possess with intent to distribute one kilog ram 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. §§ 1 956(h) & 1956 (West Supp. 2009) (Count II) , as well as from the 120

- month concurren t sentence s imposed by the district court for th e se convictions
. We affirm
.

I. On November 18, 2005, a federal grand jury indicted Ize g wire and two of his co - conspirators, Tolulope John and Fatoumata Toure, on one count of conspiracy t o distribute and
p ossess with intent to distribute heroin , and one count of conspiracy to launder monetary instruments
. 1

1 John and Toure were also charged with numerous substantive money launder ing offenses. I zegwire 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 Kin gdom. 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 was3 arrested in the United States but also pled guilty prior to trial
. Followi ng 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
. T he jury also found that Izegwir e “ 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 statut ory 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, t he district court attributed 500 grams of heroin to Izegwire , resulting in an o ffense level of 28 for the heroin conspiracy
. Se e U.S.S.G. § 2D1.1(c)(6) (2007). 2

2 The money laundering conspiracy conviction resulted in an offense level of 22. With a4 three

- level enhancement for his role in the offense, Izegwire’s guideline range was 108 to 135 months imprisonment. T he district court sentenced Izegwire to concurr ent 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 u p on the five

- ye a r statute of limitations. We review de novo the trial court’s denial of the motion. See United States v. Uribe

- Rios

Under 18 U.S.C. A. § 3282(a) (West Supp. 2009) , “no person shall be prosecuted, tri ed , or punished for any offense , not capital, unless the indictme nt 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.” , 558 F.3d 347, 351 (4 th Cir . 2009)
.

Fiswick v. United States , 329 U .S. 211, 216 (1946) ; see also United States v. Brown , 332 F.3d 363, 373 (6 th Cir. 2003)
. Furthermore, t he conspiracy, once establishe d, “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). The5 “mere cessation of activity in furtherance of the conspiracy is insufficient. The def endant must show affirmative acts inconsistent with the object of the conspiracy and communicate d in a manner reasonably calculated to reach his co

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

We find no error in the district court’s rejection of Ize g wire’s motion to dismiss the charges against hi m based upon the statute of limitations. Izegw ire and his co

- conspirators were indicted on November 18, 2005. Ize g wire does not argue that the indictment was not filed within five years of the termination of the charged conspiracies . However, he contend s that he withdrew from the conspiracies more than five years prior to the indictment, (citations omitted).

i.e. , before November 18, 2000. Ize g wire , however, has failed to demonstrate that he withdrew from the conspirac ies prior to November 18, 2000 , or that the conspirac ies ended before that date
. On the contrary, t he government’s evidence indicate s that neither occurred. There was evidence that members of the conspiracies c ontinued to commit overt acts in furtherance of the conspiracy well after November 18, 2000. In add ition, t here was evidence that b etween 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,6 in furtherance of both the drug co nspiracy and the money laundering conspiracy. Accordingly, t he district court did not err in denying Izegwire’s motion to dismiss on this basis. B. Ize g wire next appeals the district court’s denial of his motion to dismiss the charges against him for imp roper 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 di strict i n 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 i n which an act in furtherance of the conspiracy was committed.” United States v. Gilliam , 975 F.2d 1050, 1057 (4 th 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 Whil e we normally review the issue of venue , 55 F.3d 923, 928 (4th Cir. 1995). 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.7 2005)
. Here, the jury found that the government had proven “that a t least one act committed in furtherance of [each] alleged conspiracy occurred in the Eastern District of Virginia. ” S. J.A. 178, 179

- 80. This fi nding 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 dru g 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. Izeg wire 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 (Wes t 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

The Speedy Trial Act provides that the trial of a defendant charg ed in an indictment “shall commence within seventy days , 74 F.3d 60, 63 (4 th Cir. 1996).8 from the filing date . . . of the
. . . indictment, or from the date the defendant has appeared before a judicial officer o f 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 takin g 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)
. F actors to be considered in deciding whether to grant such a continuance include the defendant’s need for “reasona ble 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, incl uding 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 promp t 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 hearin g on the motion is excluded , even if the delay in holding the hearing was not reasonably necessary.9 See Henderson v . United States , 476 U.S. 321, 330 (1986). “I n a case involving several defendants, time excludable for one defendant is excludable for all defendants
. ” United States v. Jarrell , 147 F.3d 315, 316 (4 th Cir. 1998)
. “There is a strong preference for tryin g codefendants together as it promotes judicial efficiency by avoiding successive trials involving the same evidence. ” United States v. Khoury , 901 F.2d 948, 97 2 (11th Cir. 1990). Thus, “ reasonable delay attributable to the fugitive status of a co

- indict ee is excludable as to those defendants awaiting trial.” 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 , w e find no reversible e rror b y the district court in denying Izegwire’s motion to dismi ss 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 w hile 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 f inding that the ends of justice served by the continuance s outwei ghed the best interest s of the public and the defendant in a speedy trial, as required Id.10 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 tha t 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

s upervisor
. 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 mi xture or substance containing a detectable a mount 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. T he district court subsequently found, based upon a preponderance of the evidence, that Ize g wire 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 g uideline sentencing range of 108 to 135 months imprisonment. The district court then imposed a11 sentence of 120 months, which was w ithin the guideline range and statutory maximum for each co nviction
. On appeal, Izegwire contends that the district court er red by attributing a drug quantity to him for purposes of sentencing that exceeded the jury’s findings on the special verdict form. Since Ap prendi v. New Jersey , d rug 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 calcu lation 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 (4 th Cir. 2008), cert. denied 129 S. Ct. 950 (2009); see also United States v. Perry , 560 F.3d 246, 258 (4 th 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 sentenc e imposed does not exceed the maximum12 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 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 th e extent Izegwire contends that the district court’s factual f inding was otherwise in error, we are unpersuaded. D rug quantity determinations are reviewed for clear error. , 545 F.3d 673, 677 (8 th Cir. 2008)
.

See United States v. Fullilove

W e likewise reject Izegwire ’s contention that the district court e rred in finding that he was a manager or supervisor and applying the three

- level increase in I zegwire’s offense level for his r o le in the offense
. , 388 F.3d 104, 106 (4 th Cir. 2004). T he district c ourt f ound the testimony of John, Izegwire’s co

- conspirator, to be credible and found that John had supplied Izegwire w ith a total of 500 grams of heroin. Having reviewed the record as a whole, we cannot say that these findings w ere clear ly erroneous
.

See U.S.S.G. § 3B1.1(b) (2007)
. The enhanc ement was based upon evidence that Izegwire directed Ho llo 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 his13 romantic relation ship with H ollo and because Hollo had made other, l egitimate 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 , 56 8 F.3d 125, 147

- 48 (4th Cir. 2009). A defendant qualifie s 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

The district court found that Izegwire played a managerial role because he directed Hollo to make the money wire transfers to Joh n in furtherance of the conspirac ies
. Ize g wire provided her with the money, along with the names and addresses of the recipients, and instructed her to us e an alias each time she U.S.S.G. § 3B1.1, cmt. n. 2 (“To qualify for an adjustment under t his section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.”)
.

3 Izegwire does not argue that the criminal activity involved fewer than five participants.14 made an illegitimate transfer. We therefore conclude that the district cour t did not clearly err in finding that Ize gw ire 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 dispe nse 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