United States v. Paul Claudio , 447 F. App'x 456 ( 2011 )


Menu:
  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4450
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    PAUL CLAUDIO,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at New Bern.   Louise W. Flanagan,
    Chief District Judge. (4:09-cr-00057-FL-1)
    Submitted:   August 24, 2011             Decided:   September 26, 2011
    Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Deborrah Lynn Newton, NEWTON LAW, Raleigh, North Carolina, for
    Appellant.    George E. B. Holding, United States Attorney,
    Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
    States Attorneys, Raleigh, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Paul Claudio (hereinafter “the Appellant”) appeals his
    conviction and 105-month sentence for one count of possession of
    a    firearm    by    a     convicted     felon    in   violation   of    
    18 U.S.C. §§ 922
    (g)(1), 924 (2006).                 He raises five claims of error on
    appeal:    (1) that the district court erred in denying his motion
    to   reconsider       the    grant   of    the    Government’s   motion    to   quash
    production of Maria Claudio’s Alien File (“A-File”); (2) that
    the district court erred in denying the Appellant’s motion to
    exclude evidence that he raped, assaulted, and intimidated his
    wife with a handgun; (3) that the court erred in imposing a two-
    level enhancement to his offense level; (4) that the court erred
    in upwardly departing from his advisory Guidelines range; and
    (5) that he received constitutionally ineffective assistance of
    counsel.       We affirm.
    I.    Production of Maria Claudio’s A-File
    In ex parte proceedings, the Appellant sought his ex-
    wife’s A-File, maintained by the Department of Homeland Security
    (“DHS”).       While the district court ordered production, the court
    indicated that production might be delayed and that the court
    would need to review the materials in camera.                    Nevertheless, the
    Appellant did not request a continuance.
    2
    By the time Maria Claudio was to testify, DHS had not
    yet produced the A-File.               The court concluded, however, that
    cross-examining       Maria     Claudio       based     on     the     materials       the
    Appellant believed to be in the A-File would not be appropriate
    because the evidence was cumulative and would confuse the jury.
    To the extent that this claim on appeal is a challenge
    to the court’s inability to cause the production of the A-File
    before trial, the claim is waived.                    See David v. City of Los
    Angeles, 
    307 F.3d 1143
    , 1147 (9th Cir. 2002) (waiver of right to
    cross-examine when plaintiff elected to continue the hearing and
    not ask for a continuance when police officer did not appear).
    To the extent that the Appellant claims error in the
    court’s     evidentiary       ruling    regarding        the       scope    of    cross-
    examination, we do not agree.                 We review the district court’s
    limitations on the defendant’s cross-examination of government
    witnesses for abuse of discretion.               United States v. Smith, 
    451 F.3d 209
    , 220 (4th Cir. 2006).                Here, the information that the
    Appellant    sought    to   use   on    cross-examination             was   related     to
    Maria     Claudio’s    immigration       status       and     her     prior      Violence
    Against    Women   Act    (“VAWA”)      petitions.           The     gravamen     of   the
    Appellant’s claim was that Maria Claudio was biased, planted
    evidence, and falsely claimed to have been abused in order to
    secure citizenship.         The Appellant, however, was able to cross-
    examine Maria Claudio on all of these points, and we therefore
    3
    conclude that the court did not abuse its discretion in limiting
    the scope of the Appellant’s cross to prevent cumulative and
    confusing evidence from coming before the jury.
    II.     Denial of Motion to Exclude Certain Evidence
    Next, the Appellant contends that the district court
    should have excluded evidence that the Appellant assaulted and
    raped      Maria    Claudio   the    day    before     she    called   police   and
    firearms were discovered in their home, and evidence that the
    Appellant frequently intimidated Maria Claudio by pointing a 9-
    millimeter handgun at her and cocking it in the days before
    police     discovered    guns   in    the      home.     We   review   a   district
    court’s evidentiary rulings for abuse of discretion.                        United
    States v. Johnson, 
    587 F.3d 625
    , 637 (4th Cir. 2009).
    Federal Rule of Evidence 403 provides that “relevant
    evidence may be excluded if its probative value is substantially
    outweighed by the danger of unfair prejudice.”                   The damage that
    probative evidence can inflict on a defendant’s case is no basis
    for excluding the evidence, however; only when that evidence
    results in unfair prejudice, such as an appeal to the jury’s
    emotion,      and     that    prejudice        “substantially     outweighs     the
    probative value of the evidence,” must it be excluded.                       United
    States v. Basham, 
    561 F.3d 302
    , 327 (4th Cir.), cert denied, 
    130 S. Ct. 3353
        (2010).      Where      the   jury   is    given   a   limiting
    4
    instruction,      any   fear       that    the       jury    will   improperly       use    the
    evidence subsides.
    Here, we conclude that this claim lacks merit.                                  The
    challenged evidence was highly relevant to the offense charged,
    namely,     possession        of    a     firearm.           Moreover,      the    evidence
    provided    context     to    the       jury    regarding       the   reason      why   Maria
    Claudio called police, and helped to rebut the defense’s theory
    that Maria Claudio planted incriminating evidence.                                Moreover,
    the district court gave the jury a curative instruction.
    III.       Obstruction Enhancement
    The    Appellant,           whose       base    offense   level    was      twenty
    pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A)
    (2009),    received      a    four-level            enhancement       pursuant     to      USSG
    § 2K2.1(b)(1)(B)        for    possessing           between    eight    and    twenty-four
    firearms,    and    a   two-level         obstruction         of    justice    enhancement
    pursuant to USSG § 3C1.1 for allegedly perjuring himself during
    state court proceedings related to his unlawful possession of a
    firearm.    Appellant objects to the obstruction enhancement.
    According to USSG § 3C1.1, a defendant’s base offense
    level is to be increased two levels for obstruction of justice
    if “the defendant willfully obstructed or impeded, or attempted
    to   obstruct      or   impede,         the     administration         of   justice        with
    respect to the investigation, prosecution, or sentencing of the
    5
    instant offense of conviction, and . . . the obstructive conduct
    related to (i) the defendant’s offense of conviction; or (ii) a
    closely    related    offense[.]”         USSG    § 3C1.1.       The    application
    notes for § 3C1.1 specifically include the commission of perjury
    by a defendant as grounds for the enhancement.                         USSG § 3C1.1
    cmt. n.4(b).
    Here, the district court had ample evidence before it
    that the Appellant perjured himself in a related state court
    proceeding.       The Appellant testified in that proceeding that he
    did not know there were guns in his home and that the guns all
    belonged to his brother.            These statements flatly contradict
    testimony adduced at trial on the Appellant’s federal charge
    that the district court credited.                 The perjury in state court
    was related to this case because it took place while the federal
    investigation was ongoing and was related to the same offense
    conduct.          Thus,   we     conclude        that     the   enhancement     was
    appropriate.
    IV.    Upward Departure
    The    Appellant      next    claims        error   in   the   district
    court’s    conclusion      that     the       Appellant’s       criminal    history
    category of III significantly underrepresented the seriousness
    of his criminal history and its decision to upwardly depart to a
    Guidelines range derived from a criminal history category of IV.
    6
    When    the        district       court       imposes         a     departure          sentence,        we
    consider       “whether         the    sentencing            court       acted      reasonably         both
    with respect to its decision to impose such a sentence and with
    respect       to    the    extent      of     the   divergence             from      the     sentencing
    range.”        United States v. Hernandez-Villanueva, 
    473 F.3d 118
    ,
    123 (4th Cir. 2007).
    Under       USSG       § 4A1.3(a)(1),               the     district         court       may
    upwardly       depart        from       the     Guidelines               range       if     the     court
    determines          that     “the      defendant’s            criminal             history       category
    substantially              under-represents                  the        seriousness           of        the
    defendant’s          criminal         history           or    the        likelihood          that      the
    defendant will commit other crimes[.]”
    The district court did not err by departing upwardly.
    The    court       noted    that      state     rape         and    kidnapping            charges      were
    still pending against the Appellant at the time of sentencing,
    and    thus    were       not     properly      accounted            for    in      the    presentence
    investigation report.                  Moreover, the court indicated that the
    Appellant          has     been     prone      to       violence,          that       he     frequently
    intimidated his wife by cocking a handgun behind her head, and
    noted    that       testimony         indicated         that       he    had       shot    one    of    his
    children with pellets.                   The court also noted the Appellant’s
    prior    convictions            for    extortion,            resisting         a    public       officer,
    assault on a female, and discharging a weapon into an occupied
    property.          Under these circumstances, it was well within the
    7
    court’s discretion to conclude that a criminal history category
    of    III    significantly            underrepresented       the    seriousness         of   the
    Appellant’s criminal history.
    V.    Ineffective Assistance of Counsel
    The    Appellant           finally       claims      that     he     received
    ineffective assistance of counsel at trial because his attorney
    failed to investigate or present evidence that he suffers from
    mental health problems and a brain deformity.
    Claims       of     ineffective          assistance    of      counsel        are
    generally      not    cognizable          on     direct    appeal    unless       the   record
    conclusively         establishes          counsel’s        “objectively       unreasonable
    performance” and resulting prejudice.                       United States v. Benton,
    
    523 F.3d 424
    ,       435    (4th    Cir.     2008).      To    allow    for    adequate
    development of the record, ineffective assistance claims should
    be pursued in a motion filed pursuant to 
    28 U.S.C.A. § 2255
    (West Supp. 2011).               United States v. Baptiste, 
    596 F.3d 214
    , 216
    n.1 (4th Cir. 2010).                  Because the record before the court does
    not conclusively establish ineffective assistance of counsel, we
    decline to entertain this claim on direct appeal.
    We    therefore          affirm    the     judgment    of    the     district
    court.        We dispense with oral argument because the facts and
    legal       contentions         are    adequately       presented    in     the    materials
    8
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
    9