United States v. Montoya , 429 F. App'x 221 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4574
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS BLADIMIR MONTOYA, a/k/a Ciego,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cr-00247-CMH-1)
Submitted: April 26, 2011 Decided: May 9, 2011
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lawrence H. Woodward, Jr., Charles Lustig, SHUTTLEWORTH, RULOFF,
SWAIN HADDAD & MORECOCK, P.C., Virginia Beach, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Morris R.
Parker, Jr., Rebeca H. Bellows, Assistant United States
Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Bladimir Montoya appeals his conviction and
life-plus-120-month sentence, following a jury trial, for one
count of conspiracy to commit murder in aid of racketeering, in
violation of 18 U.S.C. § 1959(a)(5) (2006) (“Count One”), one
count of aiding and abetting murder in aid of racketeering, in
violation of 18 U.S.C. §§ 2, 1959(a)(1) (2006) (“Count Two”),
and one count of use of a firearm during a crime of violence, in
violation of 18 U.S.C. §§ 2, 924 (2006) (“Count Three”). On
appeal, Montoya argues that (1) there was insufficient evidence
to support his convictions on Counts One and Two; (2) the
district court erred in denying his Batson v. Kentucky, 476 U.S.
79 (1986), challenge; (3) the district court erred in declining
to give a perjury instruction; and (4) the district court erred
in ordering his sentence on Count Three to run consecutively.
Finding no reversible error, we affirm.
I.
We review a district court’s denial of a Fed. R. Crim.
P. 29 motion for acquittal de novo. United States v. Reid, 523
F.3d 310, 317 (4th Cir. 2008). “A defendant challenging the
sufficiency of the evidence to support his conviction bears a
heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997) (internal quotation marks omitted). We will
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uphold a jury’s verdict “if, viewing the evidence in the light
most favorable to the government, it is supported by substantial
evidence.” Reid, 523 F.3d at 317. Substantial evidence is
“evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Alerre, 430
F.3d 681, 693 (4th Cir. 2005) (internal quotation marks
omitted). In resolving issues of substantial evidence, we do
not reweigh the evidence or reassess the factfinder’s
determination of witness credibility, see United States v.
Brooks, 524 F.3d 549, 563 (4th Cir. 2008), and “can reverse a
conviction on insufficiency grounds only when the prosecution’s
failure is clear.” United States v. Moye, 454 F.3d 390, 394
(4th Cir. 2006) (en banc) (internal quotation marks omitted).
To prove that Montoya violated 18 U.S.C. § 1959(a)(5),
the Government had to establish that he agreed with others to
commit a murder “for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in
racketeering activity.” 18 U.S.C. § 1959(a); see United
States v. Basciano, 599 F.3d 184, 198-99 (2d Cir. 2010).
To prove that Montoya violated 18 U.S.C. § 1959(a)(1),
the Government had to show that there was: “(1) an enterprise
engaged in racketeering activity, (2) murder or aiding and
abetting another person in murdering, and (3) murder undertaken
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for the purpose of gaining entrance into or maintaining the
defendant’s position in the enterprise, or in exchange for
anything of pecuniary value.” United States v. Johnson, 219
F.3d 349, 358 n.7 (4th Cir. 2000). “A defendant is guilty of
aiding and abetting if he has knowingly associated himself with
and participated in the criminal venture.” United States v.
Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc) (internal
quotation marks omitted); see 18 U.S.C. § 2(a). To prove
association, the government need only establish that the
defendant was “cognizant of the principal’s criminal intent and
the lawlessness of his activity.” Burgos, 94 F.3d at 874.
“[P]articipation in every stage of an illegal venture is not
required, only participation at some stage accompanied by
knowledge of the result and intent to bring about that result.”
Untied States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983)
(internal quotation marks omitted).
Here, Montoya concedes that the evidence presented at
trial was sufficient to establish his gang membership and his
presence at the murder; he contests only whether the evidence
was sufficient to show that he shared the intent to commit
murder. At trial, however, two police officers testified that
Montoya implicated himself during two interviews, and one of the
other gang members testified that Montoya was involved in
planning the murder, drove the others to the site of the murder,
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and participated in celebrating the murder after its commission.
Accordingly, we hold that the evidence presented at trial was
sufficient to support Montoya’s convictions on Count One and
Two.
II.
We review a district court’s denial of a Batson
challenge for clear error, giving “great deference” to the
court’s finding. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.
1995). The Equal Protection Clause forbids the use of a
peremptory challenge for a racially discriminatory purpose.
Batson, 476 U.S. at 86. Courts employ a three-step process to
determine whether a peremptory strike was racially motivated:
First, the defendant must make a prima facie showing
that the prosecutor has exercised peremptory
challenges on the basis of race. Second, if the
requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral
explanation for striking the jurors in question.
Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful
discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (internal
citations omitted).
Here, Montoya – an Hispanic male – objected to the
striking of one of three Hispanics on the venire panel. The
district court credited the Government’s reasons as legitimate
and nondiscriminatory and found that Montoya failed in his
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burden to prove intentional discrimination. Because the
Government’s rationale was race-neutral and Montoya’s allegation
that the Government’s reasons are strongly suggestive of pretext
is insufficient to show that they were actually pretextual, we
hold that the district court did not clearly err in denying
Montoya’s Batson challenge.
III.
We review for abuse of discretion a district court’s
refusal to give a requested jury instruction. United States v.
Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006). “[This Court]
review[s] a jury instruction to determine ‘whether, taken as a
whole, the instruction fairly states the controlling law.’”
United States v. Moye, 454 F.3d 390, 397-98 (4th Cir. 2006) (en
banc) (quoting United States v. Cobb, 905 F.2d 784, 789 (4th
Cir. 1990)). A court’s refusal to give a requested instruction
is reversible error if the instruction “(1) was correct; (2) was
not substantially covered by the court’s charge to the jury; and
(3) dealt with some point in the trial so important that failure
to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks
omitted).
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Here, Montoya contends that the district court erred
when it refused to instruct the jury on perjury where a
testifying gang member admitted to lying at his own guilty plea
hearing. The district court, however, found that such an
instruction was inappropriate because the witness had not been
found guilty of perjury. Even if the witness had perjured
himself, we conclude that the district court’s credibility
instruction substantially covered the issue. The court gave
extensive instructions on witness credibility. See United
States v. Gray, 137 F.3d 765, 774 (4th Cir. 1998). Moreover,
the court’s refusal to give a perjury instruction did not impair
Montoya’s ability to put on a defense, as defense counsel
aggressively challenged the witness’s credibility on cross-
examination. Thus, we hold that the district court did not
commit reversible error in declining to give a perjury
instruction.
IV.
Finally, Montoya contests his consecutive 18 U.S.C.
§ 924(c) sentence on Count Three. Montoya’s argument is
foreclosed by an authoritative decision recently announced by
the Supreme Court. See Abbott v. United States, 131 S. Ct. 18,
23 (2010) (holding that a defendant is subject to a mandatory
consecutive sentence under § 924(c) and that a defendant is not
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spared from that sentence by virtue of receiving a higher
mandatory minimum sentence on a different count of conviction).
Therefore, as Montoya concedes, this claim fails.
V.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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