US v. Ivan Perez, No. 13-4332 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4332 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. IVAN ALTAMIRANO PEREZ, Defendant - Appellant. No. 13-4333 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERTO MORALES PEREZ, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:11-cr-00414-WDQ-1; 1:11-cr-00414-WDQ-2) Submitted: March 31, 2014 Before MOTZ and Circuit Judge. GREGORY, Decided: Circuit Judges, and May 1, 2014 DAVIS, Senior No. 13-4332 affirmed; No. 13-4333 unpublished per curiam opinion. vacated and remanded by Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, Maryland; Richard B. Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN, PA, Baltimore, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Tamera L. Fine, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Roberto Morales Perez ( Roberto Morales ) pled guilty pursuant to a written plea agreement to conspiracy to commit identification document fraud, in violation of 18 U.S.C. §§ 1028(c)(1), (f) (2012) (count one), Social Security number fraud, in violation § 408(a)(7)(C) immigration of (2012) 18 (count documents, in (2012) (count eleven). Morales Guidelines imprisonment, § 2 ten), (2012) and 42 fraud and misuse and violation of 18 U.S.C. U.S.C. §§ 2, of 1546 The district court calculated Roberto range enhancing U.S. Sentencing U.S.C. at seventy his Guidelines to offense Manual eighty-seven level six ( USSG ) levels § 2L2.1 months under cmt. n.5 (2012), and sentenced him to concurrent terms of seventy-two months imprisonment on counts one and eleven and a concurrent term of sixty months imprisonment on count ten. Ivan Altamirano Perez ( Ivan Altamirano ) pled guilty to conspiracy to commit 18 U.S.C. identification §§ 1028(c)(1), transferring false document (f) fraud, (count identification in one), violation two documents, in counts violation of of of 18 U.S.C. §§ 2, 1028(a)(2), (c)(1) (counts three and six), two counts of 18 U.S.C. seven), Social § 2 and and two Security 42 U.S.C. counts of number fraud, § 408(a)(7)(C) fraud and in violation (counts misuse of four of and immigration documents, in violation of 18 U.S.C. §§ 2, 1546 (counts five and 3 eight). The Guidelines district range at court calculated seventy-eight to Ivan Altamirano s ninety-seven months imprisonment, enhancing his offense level four levels under USSG § 3B1.1(a) for his aggravating role, and sentenced him to concurrent terms of ninety-seven months imprisonment on counts one, three, five, six, and eight and concurrent terms of sixty months imprisonment Defendants on challenge counts the four and application seven. of the On appeal, four-level and six-level enhancements. We sentences review for Ivan Altamirano s reasonableness abuse-of-discretion standard. 38, 41, 51 (2007). and Roberto under a Morales deferential Gall v. United States, 552 U.S. When reviewing a sentence for reasonableness, we must ensure that the district court correctly calculated the defendant s Guidelines range. Miscalculation significant of the procedural Guidelines error. Id. at 49, 51. range Id. at 51; qualifies United as a States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008) ( An error in the calculation of the applicable Guidelines range, whether an error of fact or of law, infects all that follows at the sentencing proceeding, district including court, unreasonable. ). court s the and In application ultimate makes assessing of the a a sentence sentence challenge Guidelines, 4 chosen to we by the procedurally the district review legal conclusions de novo and factual findings for clear error. United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009). Ivan Altamirano contends that the district court erred in enhancing his offense level under USSG § 3B1.1(a), arguing that the enhancement was told special statements evidentiary to a hearing in supported the only agent who district by out-of-court testified court the that and at the Government did not meet its burden to show he qualified for the enhancement. A defendant qualifies for a four-level enhancement to his offense level if he was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. USSG § 3B1.1(a). The district court s determination that a defendant was an organizer or leader is a factual matter reviewed for clear error. United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011). After review of the parties briefs and the record, we find no reversible procedural error in the district court s application of the four-level enhancement to Ivan Altamirano. A sentencing court information before provided that the properly it, may consider including information has reliability to support its accuracy. any relevant uncorroborated hearsay, sufficient indicia of United States v. Powell, 650 F.3d 388, 392 (4th Cir. 2011) (quoting United States v. 5 Wilkinson, applying 590 the F.3d 259, four-level 269 (4th Cir. enhancement to 2010)). Ivan Here, Altamirano, in the district court relied on out-of-court statements of cooperating individuals relayed to the special agent. The court also relied on statements in exhibits admitted into evidence, the accuracy and reliability of which are not contested, and the agent s testimony based on his investigatory involvement and personal observations. corroborate These the latter statements two of categories the of cooperating evidence individuals identifying Ivan Altamirano as the leader of a fake document manufacturing organization. Further, the evidence, taken together, easily supports the finding activity. that Ivan Altamirano was a leader of criminal He was identified as a leader of a fake document manufacturing organization by multiple cooperating individuals. He controlled the activities of the organization s document salesman and rotated responsibility for and the right to receive proceeds from the sales of fake documents generated with the organization s two other leaders. He had involvement in the logistics of the organization, subletting and paying for the room that served as the organization s mill for manufacturing the fake documents, and there is no dispute that more than five individuals were involved in the criminal activity. We therefore conclude that the district court did not reversibly 6 err in enhancing Ivan Altamirano s offense level four levels under USSG § 3B1.1(a). See United States v. Jones, 356 F.3d 529, 538 (4th Cir. 2004) (affirming application of four-level enhancement allocation divided, where of drugs and to handled transactions); (4th Cir. defendant 1997) dealers, the United recruited determined logistics States (affirming dealers, v. and how controlled profits arrangements Perkins, application 108 of were for 512, F.3d the 518 enhancement where defendant directed the activities of other members of the drug ring and facilitated the criminal enterprise by renting apartments, acquiring pagers, hiring a lawyer for a codefendant, and paying for the bond of another codefendant ). Roberto Morales challenges the application by the district court of the six-level upward departure to his offense level under Guidelines offenses USSG contains based § 2L2.1(b)(2). offenses § 2L2.1 on the cmt. enhancements number The maximum involving § 2L2.1(b)(2)(A)-(C). n.5. 100 of Section for 2L2.1 involved. enhancement is or documents. Application Note the document-trafficking documents more of 5 nine to levels, the USSG for USSG Guideline states: If the offense involved substantially more than 100 documents, an upward departure may be warranted. cmt. n.5. 7 USSG § 2L2.1 Roberto Morales stipulated in his plea agreement that a nine-level enhancement to his offense level was warranted under USSG § 2L2.1(b)(2)(C) because his offense involved 100 or more documents. The district court applied a six-level upward departure under USSG § 2L2.1 cmt. n.5 based on its determination that the number of documents involved was 9900. After review of the record, however, we conclude that this determination was not supported by the evidence of record. The district court reduced the number of fake permanent resident identification cards the document manufacturing organization could produce based on the available printing supplies (12,375) by what it determined to be an organization-wide printing error rate (2475) to arrive at the figure of 9900. of twenty percent Nothing in the record, however, including hearsay adduced at the evidentiary hearing, supports the district court s determination regarding this error rate. We reject as unpersuasive the Government s arguments that the district court s application of the six-level enhancement was supported by its evidence estimating the number of documents for purposes of USSG § 2L2.1 cmt. n.5 at between 10,000 and 13,500. We further conclude court s calculation error was not harmless. v. Savillon-Matute, United States v. 636 Mehta, F.3d 594 119, F.3d 8 123 277, 283 that the district See United States (4th (4th Cir. Cir. 2011); 2010). The record does not support the conclusion that Roberto Morales would have received the same sentences had the district court not applied the six-level upward departure based on its clearly erroneous calculation of 9900 documents. Accordingly, in No. 13-4332, we affirm the district court s judgment. In No. 13-4333, we vacate the district court s judgment and remand for resentencing. * We dispense with oral legal contentions are before this and argument adequately because presented in the the facts and materials court argument would not aid the decisional process. No. 13-4332 AFFIRMED No. 13-4333 VACATED AND REMANDED * By our disposition, we indicate no appropriate sentence to be imposed on remand. 9 view as to the

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