US v. Mario Arias, No. 08-4271 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4271 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO E. ARIAS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 fiftyfive months imprisonment. On appeal, Finding no error, we affirm. 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 testify at the sentencing hearing. district court erred in individuals the testimony considering of did the hearsay Shawn evidence was, in part, based Morrow, on at Specifically, Arias an agent with Bureau of Alcohol, Tobacco, Firearms, and Explosives. testimony not Arias also contends that the sentencing because of its unreliability. challenges who information the Morrow s obtained from confidential informants and another law enforcement officer. In Confrontation testimonial Supreme Clause prohibits statements that examination. circuit the Crawford, court Id. at 50-51. that following United has States the are held admission not that at subject trial to the of cross- However, as conceded by Arias, no considered v. Court Booker, 2 the 543 effect U.S. 220 of Crawford (2005), has concluded that sentencing. the rule announced in Crawford applies at See, e.g., United States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007) (determining Crawford did not alter general rule that violate hearsay defendant s evidence admitted confrontation at rights sentencing and does collecting not 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 hearsay evidence at sentencing is specifically authorized. on 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. any R. Evid. 1101(d)(3). Thus, a court may consider 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. informants, who consistent and evidence. Moreover, did not the know corroborated details each with provided other s by identity, surveillance and the were physical 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 reviewing an enhancement for district court s review findings the Guidelines, we questions of law de novo. 456 (4th Cir. 2006). increase in offense obstruction of application of fact justice. of for the clear When Sentencing error and United States v. Green, 436 F.3d 449, The Guidelines provide for a two-level 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 conviction. USSG § 3C1.1 (2006). instant offense of Covered conduct includes committing perjury and providing materially false statements to law enforcement officers that investigation of the offense. significantly impede the Id. at comment. (n.4(b), (g)). The district court determined that an enhancement for obstruction testified of at justice the was warranted suppression because hearing that Arias law falsely enforcement officers had not administered oral Miranda warnings prior to questioning impeded the him. Additionally, investigation the by court initially found lying that to Arias 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 firearm in that his failure his residence to did disclose not the presence significantly impede of a 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 testimony was false and intended to deceive. court, this The testimony was unquestionably material since a finding that the officers failed to administer Miranda warnings could suppression of the firearm at issue. have resulted in the 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 sentence is significantly impede the investigation. Finally, unreasonable. Guidelines Arias After range, the contends that calculating district the court his appropriate must advisory 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 support the degree of the variance. 6 compelling Id. at 597. to Appellate 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) recognition (2006) of (prescribing Arias s five-year rehabilitative maximum), efforts. in After considering the court s application of the relevant § 3553(a) 7 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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8
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