United States v. Joseph Owusu

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 16, 2019
• Docket: 18-14883
• Status: Unpublished

Opinion

Case: 18-14883 Date Filed: 09/16/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14883 Non-Argument Calendar ________________________

D.C. Docket No. 3:18-cr-00077-RV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH OWUSU,

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(September 16, 2019)

Before WILLIAM PRYOR, GRANT and ANDERSON, Circuit Judges.

PER CURIAM: Joseph Owusu appeals his sentence of 135 months of imprisonment

following his plea of guilt to conspiring to distribute and possess with intent to Case: 18-14883 Date Filed: 09/16/2019 Page: 2 of 3

distribute hydromorphone and oxycodone. 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and

846. Owusu challenges a two-point enhancement for his aggravating role as an

organizer, leader, or manager in the offense. U.S.S.G. § 3B1.1(b). He contends that

the district court erred in crediting the hearsay statements of a coconspirator,

Angela Clark, and maintains that his ownership of the controlled substances alone

does not support the enhancement. We affirm.

We review a finding of fact about a defendant’s role in the offense for clear

error. United States v. Mesa, 247 F.3d 1165, 1168 (11th Cir. 2001). A district court

commits clear error if we are “left with a definite and firm conviction that a

mistake has been committed,” but “[w]here there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be clearly erroneous.”

United States v. Smith, 821 F.3d 1293, 1302 (11th Cir. 2016) (quotation marks

omitted) (alteration in original).

When a defendant challenges one of the factual bases of his proposed

sentence in the presentence investigation report, the government bears the burden

of proving the disputed fact by a preponderance of the evidence. United States v.

Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). The district court may base its

findings on “facts admitted by a defendant’s plea of guilty, undisputed statements

in the presentence report, or evidence presented at the sentencing hearing.” United

2 Case: 18-14883 Date Filed: 09/16/2019 Page: 3 of 3

States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). A defendant who

challenges a sentence for being based on false or unreliable evidence must

establish that the evidence is “materially false or unreliable” and that “it actually

served as the basis for the sentence.” United States v. Ghertler, 605 F.3d 1256,

1269 (11th Cir. 2010). “[A] court may rely on hearsay at sentencing, as long as the

evidence has sufficient indicia of reliability, the court makes explicit findings of

fact as to credibility, and the defendant has an opportunity to rebut the evidence.”

United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998).

The district court did not clearly err in finding that Owusu served as an

organizer, leader, or manager in the offense. Owusu has not established that

Clark’s hearsay statements were “materially false or unreliable.” See Ghertler, 605

F.3d at 1269. The district court permitted Owusu the opportunity to rebut the

statements and made explicit credibility determinations. Clark’s statements also

were corroborated by other evidence. See id. at 1270. Text messages to Clark from

drug buyers asked for Owusu’s permission to defer payment for opiates. And other

evidence too supports the inference that Owusu exercised decision-making

authority and received the larger share of the proceeds of the offense.

AFFIRMED.