United States v. Selvin Najera , 585 F. App'x 185 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SELVIN DARIO NAJERA,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:12-cr-00066-GEC-2)
Submitted: October 28, 2014 Decided: November 14, 2014
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry N. Grimes, TERRY N. GRIMES, ESQ., P.C., Roanoke, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, R.
Andrew Bassford, Laura Day Rottenborn, Assistant United States
Attorneys, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Selvin Dario Najera was convicted, after a jury trial,
of conspiracy to distribute methamphetamine. The district court
sentenced him to 235 months’ imprisonment. He now appeals,
asserting that the district court erred by denying his motion
for a bill of particulars and by allowing the testimony of his
daughter, which he contends contained inadmissible hearsay. He
also challenges his sentence, arguing that the court erred in
determining the weight of the drugs attributable to him,
enhancing his sentence based on a finding that he obstructed
justice, and denying him the safety valve sentencing reduction,
18 U.S.C. § 3553(f) (2012). Concluding that the district court
did not err, we affirm Najera’s conviction and sentence.
Najera moved for a bill of particulars, requesting
that the United States be directed to specify when the
conspiracy is alleged to have begun and on what dates he was
alleged to have distributed methamphetamine. He asserted that
this information was necessary to prepare a defense and to
present any alibi defense. Because the Government provided
Najera with full discovery and because Najera failed to show
that he suffered any unfair surprise, United States v. Jackson,
757 F.2d 1486, 1491 (4th Cir. 1985), we conclude that the
district court did not abuse its discretion in determining that
this was a discovery issue and denying the motion for a bill of
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particulars. See United States v. MacDougall, 790 F.2d 1135,
1153 (4th Cir. 1986).
Najera challenges the testimony of his daughter as to
their relationship, contending that it was unfairly prejudicial.
We find no abuse of discretion by the district court in
admitting this evidence as relevant and determining that it was
not unfairly prejudicial. See United States v. Kelly, 510 F.3d
433, 436-38 (4th Cir. 2007); United States v. Robinson, 275 F.3d
371, 383 (4th Cir. 2001) (providing standard). We also uphold
the district court’s determination that Najera’s daughter’s
testimony concerning her discovery that he was involved in the
drug trade was admissible as a coconspirator statement. See
United States v. Portsmouth Paving Corp., 694 F.2d 312, 320 (4th
Cir. 1982) (requiring a preponderance of the evidence of
existence and participation in conspiracy in order for
coconspirator statement exception to hearsay rule to apply).
Najera next contends that the district court erred in
determining that, for sentencing purposes, he was responsible
for more than five, but less than fifteen kilograms of
methamphetamine. We find no clear error by the district court
in its calculation of the amount of drugs attributable to
Najera. See United States v. General, 278 F.3d 389, 393 (4th
Cir. 2002); United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999).
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Najera also challenges the two-level enhancement to
his sentence after the district court found that he obstructed
justice by committing perjury in his testimony. We have
reviewed the trial testimony and the findings by the district
court and find no clear error in the determination that Najera
obstructed justice by presenting perjured testimony. See United
States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005) (providing
standard); United States v. Dunnigan, 507 U.S. 87, 95-96 (1993)
(upholding obstruction of justice enhancement for perjury).
Lastly, Najera asserts that the district court erred
by denying him the sentence reduction under the safety valve
provision of 18 U.S.C. § 3553(f). Because the district court
did not clearly err in finding that Najera committed perjury and
failed to accept responsibility for his criminal conduct, the
safety valve reduction was appropriately denied. See United
States v. Ivester, 75 F.3d 182, 184 (4th Cir. 1996).
Accordingly, we affirm Najera’s conviction and his
235-month sentence. 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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