* Judge Miriam Goldman Cedarbaum, of the United States District Court for the Southern District of New York, sitting by designation. 10-3427(L) USA v. Oyewumi, et al.
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 29 thday of March, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 SUSAN L. CARNEY, 7 Circuit Judges

. 8 MIRIAM GOLDMAN CEDARBAUM 9 District Judge. * 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellee , 15 16 -v.- 10-3427-cr, 10-3911-cr, 10- 17 4035-cr 18 19 TAIWO ADEKANBI, AKA TAIYE, ADEMILOLA OGUNMOKUN, AKA JIMMY, 20 AKA ABURO, AKA OLASUPO OGUNMOKUN, 21 22 Defendants, 23 24 KAY OYEWUMI, FNU LNU, AKA TONY MCKINNON, AKA REGINAL DAVIS, 25 AKA SAEED, TUNDE OGUNRINKA, AKA BABA TOLANI, 26 27 Defendants-Appellants, 28 292 1 FOR APPELLANT 2 Fnu Lnu a/k/a 3 Tony McKinnon a/k/a 4 Reginal Davis a/k/a 5 Saeed: STEVEN R. PEIKIN (Alexander J. 6 Willscher, Allison Caffarone, on the 7 brief ), Sullivan & Cromwell, New 8 York, NY. 9 10 FOR APPELLANT 11 Tunde Ogunrinka 12 a/k/a Baba Tolani: THOMAS F.X. DUNN, New York, NY. 13 14 FOR APPELLANT 15 Kay Oyewumi: MARY ANNE WIRTH, Bleakley Platt & 16 Schmidt, LLP, White Plains, NY. 17 18 FOR APPELLEE: DANIEL S. GOLDMAN, Assistant United 19 States Attorney, (Katherine Polk 20 Failla, Assistant United States 21 Attorney, on the brief ), forPreet 22 Bharara, United States Attorney for 23 the Southern District of New York, 24 New York, NY. 25 26 Appeal from the United States District Court for the 27 Southern District of New York (Sullivan, J .). 28 29 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 30

**AND DECREED**that the judgment of the district court be 31

**AFFIRMED**

. 32 Defendants Ogunrinka, Oyewumi, and Fnu Lnu a/k/a Saeed 33 appeal from judgments of conviction entered on September 28, 34 2010, in the United States District Court for the Southern 35 District of New York, following a seven-day jury trial 36 before the Honorable Richard J. Sullivan. We address Fnu 373 Lnu’s appeal in a separate Per Curiam opinion filed 1 contemporaneously with this Summary Order. 2 Here we address only the appeals of Ogunrinka and 3 Oyewumi. In Oyewumi’s case, defense counsel has moved to 4 withdraw pursuant to Anders v. California , 386 U.S. 738 5 (1967), and the government has moved to dismiss Oyewumi’s 6 appeal based on the appeal waiver contained in his plea 7 agreement, and, in the alternative, for summary affirmance 8 of Oyewumi’s conviction and sentence. Ogunrinka appeals his 9 sentences as being procedurally and substantively 10 unreasonable. 11 We assume the parties’ familiarity with the underlying 12 facts and procedural history of this case. 13 1. Ogunrinka’s Fifth and Sixth Amendment Claims 14 Appellant Ogunrinka argues that the district court 15 violated his Sixth Amendment right to a trial by jury and 16 his Fifth Amendment Due Process rights because the district 17 court based Ogunrinka’s sentence on its finding that a 18 preponderance of the evidence established that Ogunrinka was 19 responsible for between 100 and 400 grams of heroin. At 20 trial, applying a reasonable doubt standard, the jury found 21 that Ogunrinka was responsible for less than 100 grams of 22 heroin. 234 The district court committed no constitutional or legal 1 errors in using the preponderance of the evidence standard 2 in calculating the drug quantity involved in Ogunrinka’s 3 criminal conduct and thereafter sentencing defendant 4 accordingly. See United States v. Vaughn , 430 F.3d 518, 525 5 (2d Cir. 2005). We therefore affirm the district court’s 6 sentence of 63 months’ imprisonment. 7

2. Ogunrinka’s U.S.S.G. § 3B1.2 Claim 8 Ogunrinka also contends that the district court erred 9 in declining to impose a “minor role” reduction pursuant to 10 section 3B1.2(b). To be eligible for a minor role 11 adjustment, “the defendant’s conduct must be minor or 12 minimal as compared to the average participant in such a 13 crime.” United States v. Carpenter , 252 F.3d 230, 235 (2d 14 Cir. 2001) (internal quotation marks omitted). The district 15 court’s findings of fact were well-founded in the record. 16 We find no error in the court’s decision that Ogunrinka was 17 not a minor participant in the conspiracy. 18 Based on the foregoing, we find Ogunrinka’s 63-month 19 sentence was both procedurally and substantively reasonable. 20 3. Oyewumi 21 Mary Anne Wirth moves to be relieved as counsel for Kay 22 Oyewumi, pursuant to Anders v. California , 386 U.S. 738 235 (1967), and the government moves to dismiss Oyewumi’s 1 appeal, or in the alternative, for summary affirmance. 2 Because we find that Oyewumi’s plea agreement included a 3 valid waiver of his right to appeal a within-Guidelines 4 sentence, we grant Wirth’s motion to be relieved as counsel 5 and grant the government’s motion to dismiss Oyewumi’s 6 appeal. 7 For the foregoing reasons, the judgment of the district 8 court with regard to both Ogunrinka and Oyewumi is **AFFIRMED.** 9 This summary order disposes of Mary Anne Wirth’s Anders 10 Motion as well as the Government’s motion for summary 11 affirmance or dismissal of Oyewumi’s appeal. Both pending 12 motions are therefore moot. 13
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 18