US v. Daniel Lara, No. 13-4047 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4047 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL APARICIO LARA, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:12-cr-00313-TDS-1) Submitted: October 28, 2013 Decided: November 12, 2013 Before DUNCAN, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Beth M. Farber, Harris O Brien, New York, New York, for Appellant. Ripley Rand, United States Attorney, Randall Galyon, Assistant United States Attorney, Greensboro, North Carolina; Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Acting Deputy Assistant Attorney General, James S. Yoon, Hope S. Olds, Christina Giffin, Courtney B. Schaefer, Christopher J. Smith, U.S. DEPARTMENT OF JUSTICE, Washington, DC, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Daniel conspiracy to Aparicio possess, Lara pled produce, guilty and to transfer one count of identification documents, 18 U.S.C. § 1028(f), (b)(1) (2006) (Count One), and one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), (c) (2006) (Count Thirty-Three). The probation officer recommended, in pertinent part, a four-level enhancement under U.S. Sentencing Guidelines Manual USSG § 3B1.1(a) (2012) on the ground that activity Lara that otherwise was involved extensive. a leader five The or or organizer more district of a participants court overruled criminal or was Lara s objection to the four-level enhancement and ultimately sentenced Lara within the Guidelines range to forty-two months on Count One and a mandatory consecutive term of twenty-four months on Count Thirty-Three. On appeal, Lara s sole challenge is to the four-level leadership enhancement. substantive standard. reasonableness Gall Miscalculation activity if that v. of procedural error. adjustment We review sentences for procedural and he United the Id. was involved otherwise extensive. under an States, 552 Guidelines abuse of U.S. 38, range is a discretion 51 (2007). significant A defendant qualifies for a four-level an organizer five or or more USSG § 3B1.1(a). 2 leader of a participants criminal or was The district court s determination that a sentencing enhancement is warranted is a factual determination reviewed for clear error. United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011) ( Because the district court s findings as to whether Thorson was an organizer or leader are factual in nature, we reverse only if the district court s findings are clearly erroneous. ); United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011). Reversal for clear error is is warranted definite and committed. only firm United where this conviction States v. court that a Harvey, left mistake 532 F.3d with has 326, the been 336-37 (4th Cir. 2008) (internal quotation marks omitted). Factors distinguishing a leadership or organization role from lesser roles include: the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. USSG § 3B1.1, cmt. n.4; United States v. Cameron, 573 F.3d 179, 184 (4th Cir. 2009). The leadership enhancement is appropriate where the evidence demonstrates that the defendant controlled the activities responsibility. marks omitted). of other participants or exercised management Slade, 631 F.3d at 190 (internal quotation The facts establishing the enhancement must be supported by a preponderance of the evidence. 3 Harvey, 532 F.3d at 337. Leadership over only one other participant sufficient as long as there is some control exercised. is United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003). At sentencing, the district court made the following findings. Lara recruited at least one accomplice to assist him in obtaining fraudulent identity documents for his customers. Lara sold identity documents to his customers, directed his recruit to drive his customers to and from Missouri to obtain the documents, and paid his recruit about $200, while charging his customers $1700 to $2000 for the identity documents. The district court further found Lara also directed others in the conspiracy. Lara told the Puerto Rican conspirators where to send the documents, providing them specific addresses, and then directed others as to how to handle the documents. Having reviewed the record, specifically the testimony presented at sentencing and the presentence report, 1 and the parties arguments, we conclude 1 that the district court s Although Lara objected to the probation officer s conclusion in the presentence report that he was a leader, Lara lodged no objections to the facts stated in the report, leaving the district court free to adopt the findings of the [presentence report] without more specific inquiry or explanation. United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (internal quotation marks omitted); see also Fed. R. Crim. P. 32(i)(3) (permitting district court to accept any undisputed portion of the presentence report as a finding of fact). 4 determination that Lara was a leader or organizer in brokering the sale and identification delivery documents and to arrangement various customers of in fraudulent the United States is adequately supported. 2 Accordingly, we affirm Lara s 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 2 Because we find no procedural error in the district court s imposition of the enhancement, we need not address the Government s argument that any procedural error was harmless. 5

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