United States v. Arias , 321 F. App'x 316 ( 2009 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-4271
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    MARIO E. ARIAS,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    Maryland, at Greenbelt.      Roger W. Titus, District Judge.
    (8:06-cr-00187-RWT-1)
    Submitted:    March 12, 2009                 Decided:   March 30, 2009
    Before MOTZ, GREGORY, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Michael E. Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland,
    for Appellant.     Rod J. Rosenstein, United States Attorney,
    Jonathan C. Su, James M. Trusty, Assistant United States
    Attorneys, Greenbelt, Maryland, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Mario E. Arias pled guilty pursuant to a written plea
    agreement to possession of a firearm with an obliterated serial
    number,    in    violation      of     
    18 U.S.C. § 922
    (k)      (2006).            After
    hearing testimony regarding Arias’s affiliation with the MS-13
    gang, the district court imposed a variance sentence of fifty-
    five months’ imprisonment.                Finding no error, we affirm.
    On    appeal,      Arias       initially       contends     that        his    Sixth
    Amendment right of confrontation, as detailed in Crawford v.
    Washington, 
    541 U.S. 36
     (2004), was violated when the district
    court   considered       the    statements          of    individuals         who    did     not
    testify at the sentencing hearing.                      Arias also contends that the
    district    court      erred   in     considering          the    hearsay      evidence       at
    sentencing because of its unreliability.                           Specifically, Arias
    challenges      the    testimony      of     Shawn      Morrow,    an   agent        with    the
    Bureau of Alcohol, Tobacco, Firearms, and Explosives.                                Morrow’s
    testimony    was,      in    part,     based       on    information       obtained         from
    confidential informants and another law enforcement officer.
    In      Crawford,        the      Supreme       Court       held        that    the
    Confrontation         Clause    prohibits          the     admission       at       trial     of
    testimonial       statements         that         are     not     subject       to        cross-
    examination.        
    Id. at 50-51
    .           However, as conceded by Arias, no
    circuit     court     that     has     considered         the     effect       of    Crawford
    following United         States      v.     Booker,      
    543 U.S. 220
        (2005),       has
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    concluded      that       the    rule     announced          in    Crawford      applies       at
    sentencing.        See, e.g., United States v. Bras, 
    483 F.3d 103
    , 109
    (D.C. Cir. 2007) (determining Crawford did not alter general
    rule   that    hearsay          evidence    admitted         at    sentencing       does      not
    violate     defendant’s         confrontation         rights       and   collecting      cases
    adopting rule); see also United States v. Brown, 
    430 F.3d 942
    ,
    943-44 (8th Cir. 2005) (noting courts have held that Crawford
    did not alter general rule of admissibility of hearsay evidence
    at sentencing).
    Further,       contrary      to       Arias’s       argument,      reliance      on
    hearsay evidence at sentencing is specifically authorized.                                    “No
    limitation shall be placed on the information concerning the
    background, character, and conduct of a person convicted of an
    offense     which     a    court    of    the       United    States      may    receive      and
    consider for the purpose of imposing an appropriate sentence.”
    
    18 U.S.C. § 3661
     (2006); see also U.S. Sentencing Guidelines
    Manual (“USSG”) § 1B1.4 (2006).                     Moreover, the traditional rules
    of evidence are not applicable to sentencing proceedings.                                     See
    Fed.   R.   Evid.         1101(d)(3).        Thus,      a     court      may    consider      any
    related and reliable evidence before it, including hearsay, in
    establishing relevant conduct.                       United States v. Bowman, 
    926 F.2d 380
    , 381 (4th Cir. 1991).
    At    sentencing,          Morrow      testified        that      Arias   was    a
    member and occasional leader in the Langley Park Salvatrucha
    3
    (“LPS”) clique of MS-13.                Morrow detailed orders given by Arias
    in his leadership capacity, including pat-downs of members for
    wires, disciplinary beatings, missions to test gang loyalty, and
    “green     lighting”        a     suspected        informant      for     death.         This
    testimony generally was corroborated by Arias who admitted that
    he was involved with the LPS clique of MS-13 from 2004 until the
    time of his arrest in 2006.                   Arias also confirmed that he was a
    leader in the clique and therefore able to issue orders such as
    “green     lights.”             Moreover,       the     details        provided    by     the
    informants,       who     did     not    know      each       other’s    identity,       were
    consistent        and    corroborated          with     surveillance       and     physical
    evidence.     Audio recordings also were obtained by informants who
    on occasion wore wires to meetings.                       Accordingly, we conclude
    that the hearsay evidence was reliable and therefore properly
    considered by the district court at sentencing.
    Next, Arias contends that the district court erred in
    applying     an    enhancement          for    obstruction        of    justice.         When
    reviewing    the        district    court’s        application     of     the    Sentencing
    Guidelines,       we     review    findings        of   fact    for     clear    error   and
    questions of law de novo.               United States v. Green, 
    436 F.3d 449
    ,
    456 (4th Cir. 2006).               The Guidelines provide for a two-level
    increase     in         offense     level       when      a     defendant        “willfully
    obstruct[s] or impede[s], or attempt[s] to obstruct or impede,
    the administration of justice with respect to the investigation,
    4
    prosecution,           or      sentencing         of        the     instant        offense        of
    conviction.”            USSG § 3C1.1 (2006).                  Covered conduct includes
    committing perjury and providing materially false statements to
    law       enforcement          officers       that          significantly          impede     the
    investigation of the offense.                 Id. at comment. (n.4(b), (g)).
    The district court determined that an enhancement for
    obstruction        of       justice    was    warranted           because      Arias    falsely
    testified         at    the     suppression           hearing       that     law    enforcement
    officers had not administered oral Miranda ∗ warnings prior to
    questioning        him.         Additionally,           the    court       found    that     Arias
    impeded      the       investigation         by        initially       lying       to   officers
    regarding the existence of a firearm in his residence.                                       Arias
    argues, as he did in the district court, that the enhancement
    should not have been applied as any inaccuracy in his testimony
    at the suppression hearing was the result of confusion or faulty
    memory     and     that       his   failure       to    disclose       the    presence       of    a
    firearm      in    his      residence      did        not     significantly         impede    the
    officers’ investigation.
    “Application            of   [§ 3C1.1]           is    appropriate        if     the
    sentencing court finds that the defendant when testifying under
    oath (1) gave false testimony; (2) concerning a material matter;
    (3) with the willful intent to deceive (rather than as a result
    ∗
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    5
    of confusion, mistake, or faulty memory).”                            United States v.
    Quinn, 
    359 F.3d 666
    , 681 (4th Cir. 2004) (internal quotation
    marks and citation omitted).                It is evident from the materials
    in the joint appendix that Arias unequivocally testified that he
    was not provided oral Miranda warnings prior to questioning by
    law    enforcement.        As    determined       by    the    district      court,     this
    testimony was false and intended to deceive.                          The testimony was
    unquestionably material since a finding that the officers failed
    to     administer    Miranda      warnings       could        have    resulted     in    the
    suppression of the firearm at issue.                     Thus, the district court
    properly applied a two-level increase under § 3C1.1.                            Because we
    have concluded that Arias’s perjury at the suppression hearing
    supports the enhancement, we need not address Arias’s contention
    that     his    statements       to   law       enforcement          officers    did    not
    significantly impede the investigation.
    Finally,     Arias     contends          that         his    sentence     is
    unreasonable.           After     calculating          the     appropriate        advisory
    Guidelines       range,    the    district           court    must     consider    it     in
    conjunction with the factors set forth in 
    18 U.S.C. § 3553
    (a)
    (2006).     Gall v. United States, 
    128 S. Ct. 586
    , 596 (2007).                          “If
    [the district court] decides that an outside-Guidelines sentence
    is warranted, [it] must consider the extent of the deviation and
    ensure    that    the     justification         is    sufficiently         compelling     to
    support the degree of the variance.”                         
    Id. at 597
    .         Appellate
    6
    review of a district court’s imposition of a sentence, “whether
    inside, just outside, or significantly outside the Guidelines
    range,” is for abuse of discretion.         
    Id. at 591
    .
    The district court followed the necessary procedural
    steps in sentencing Arias, appropriately treating the Sentencing
    Guidelines as advisory, properly calculating and considering the
    applicable Guidelines range, and weighing the relevant § 3553(a)
    factors.       While    the    court   acknowledged   Arias’s     post-arrest
    attempt to rehabilitate himself, it nevertheless was concerned
    with Arias’s status in the MS-13 gang, his initial failure to
    disassociate himself from the gang after his arrest, and the
    nature of the offense of conviction.            The court concluded that
    “[t]he MS-13 gang – specifically, the LPS clique – is a serious
    matter, one that must be deterred and one that must be addressed
    with the goal of protecting the public from further crimes of
    the defendant and those who participate in this organization.”
    For these reasons, the district court determined that
    a   sentence   within    the   applicable   Guidelines    range    “would   be
    woefully inadequate” and sentenced Arias to a variance sentence
    of fifty-five months.           The court noted that it had chosen a
    sentence five months below the statutory maximum, see 
    18 U.S.C. § 924
    (a)(1)(B)        (2006)    (prescribing   five-year    maximum),       in
    recognition      of     Arias’s    rehabilitative      efforts.         After
    considering the court’s application of the relevant § 3553(a)
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    factors to the facts in this case and affording “due deference”
    thereto, Gall, 
    128 S. Ct. at 597
    , we conclude that the district
    court’s imposition of a variance sentence did not constitute an
    abuse of discretion.
    Accordingly, we affirm the judgment of the district
    court.     We dispense with oral argument because the facts and
    legal    contentions   are   adequately   presented    in   the    materials
    before   the   court   and   argument   would   not   aid   the   decisional
    process.
    AFFIRMED
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