US v. Fernando Rivas, No. 13-4745 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4745 UNITED STATES OF AMERICA, Plaintiff Appellee, v. FERNANDO RIVAS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:11-cr-02290-PMD-1) Submitted: May 30, 2014 Decided: June 3, 2014 Before WILKINSON, KING, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. William Nettles, United States Attorney, M. Rhett DeHart, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fernando Rivas appeals his convictions and 180-month sentence imposed after he pled guilty to producing child pornography, in violation of 18 U.S.C. § 2251(a) (2012), and transporting child pornography, § 2252A(a)(1) (2012). in violation of 18 U.S.C. On appeal, Rivas argues that the district court erred in denying his motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that his sentence is procedurally and substantively unreasonable. We affirm. Rivas argues that he was entitled to a Franks hearing because three paragraphs of the search warrant affidavit contained false or misleading information and that, if those paragraphs had been omitted, the affidavit insufficient to find probable cause. would have been A defendant challenging the validity of a search warrant is entitled to a Franks hearing if he makes a preliminary showing that: (1) the warrant affidavit contain[s] a deliberate falsehood or statement made with reckless disregard allegedly false sufficient to for statement, support a the truth the warrant finding of and (2) without affidavit probable cause. is the not United States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (quoting Franks, 438 U.S. at 155-56); see United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (defining substantial preliminary 2 showing). A defendant bears a heavy burden to establish the need for a Franks hearing. 554, 558 (4th Cir. United States v. Jeffus, 22 F.3d 1994). We review de novo the legal determinations underlying a district court s denial of a Franks hearing and review its factual findings for clear error. United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). Here, Rivas falls short of making the substantial preliminary showing that the challenged statements were false or that the mislead affiant the included magistrate the statements judge. Fisher, 711 F.3d at 468. See with Franks, the 438 intent U.S. to 155-56; Furthermore, even assuming that Rivas made the necessary showing, we agree with the district court that the alleged false or misleading statements essential to the probable cause determination. F.3d at 468. were not See Fisher, 711 Therefore, we conclude that the district court did not err in denying Rivas request for a Franks hearing. Next, procedurally sentence Rivas and contends that the Guidelines sentence substantively unreasonable. applying abuse-of-discretion standard. significant his reasonableness, for 38, 41 (2007). that We a is both review a deferential Gall v. United States, 552 U.S. In so doing, we first examine the sentence for procedural district range, error court . . . did ensuring, not fail[] 3 among improperly to consider other things, calculat[e] the [18 the U.S.C.] § 3553(a) explain [(2012)] the factors, chosen . . sentence. . or Id. fail[] at to 51. adequately Next, when considering the substantive reasonableness of the sentence, we take into account the totality of the circumstances. Id.; see United States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013) (discussing appellate presumption of reasonableness). Rivas first challenges the district court s decision to apply a two-level enhancement because the offense involved sexual contact. See U.S. Sentencing Guidelines Manual ( USSG ) § 2G2.1(b)(2)(A) & cmt. n.2 (2012); see also 18 U.S.C. § 2246(3) (2012) (defining sexual contact). We assume, without deciding, that the district court erred in applying this enhancement but conclude that any such procedural error is harmless. A procedural sentencing error is harmless where this court has (1) knowledge that the district court would have reached the same result even if it had decided the [G]uidelines issue the other way, and (2) a determination that the sentence would be reasonable even if the [G]uidelines issue had been decided in the defendant s favor. F.3d 119, 123 (4th United States v. Savillon-Matute, 636 Cir. 2011) (internal quotation marks omitted); see United States v. McManus, 734 F.3d 315, 318 (4th Cir. 2013) (stating that procedural [s]entencing error is harmless if the resulting sentence is not longer than that to 4 which the defendant would otherwise be subject ) (internal quotation marks and brackets omitted). Here, Rivas was sentenced to 180 months imprisonment, the statutory mandatory minimum sentence set forth in 18 U.S.C. § 2251(e) (2012). Thus, even if the district court had sustained Rivas objection to the two-level enhancement, we can conclude with confidence imposed the same Moreover, Rivas that the mandatory substantial downward 180-month variance sentence. sentence in applying the Rivas is Accordingly, we conclude that any error on the part court account have arguments. district into would because the took minimum court reasonable of it district mitigating § 2G2.1(b)(2)(A) enhancement is harmless. Next, Rivas contends that the district court erred by imposing a two-level enhancement pursuant to USSG § 2G2.1(b)(3) and a five-level enhancement pursuant to USSG § 2G2.2(b)(3)(B) based on Rivas distribution of child pornography because there was no evidence pornography. * presented that he ever distributed child Distribution is defined as any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of * Rivas does not challenge any other aspect of the enhancement in USSG § 2G2.2(b)(3)(B). See McManus, 734 F.3d at 319 (discussing proof required to trigger enhancement). 5 material involving the sexual exploitation of a minor. § 2G2.1 cmt. n.1; USSG § 2G2.2 cmt. n.1. at the plea hearing that he had USSG Because Rivas admitted possessed, transported, and produced child pornography, the district court did not err in imposing the distribution enhancements. Further, Rivas argues that his sentence is procedurally unreasonable because the court failed to properly consider the 18 U.S.C. § 3553(a) factors. belied by the record. had considered sentence and the Rivas contention is The district court clearly stated that it § 3553(a) specifically factors mentioned when the imposing seriousness Rivas of the offense, the need to promote respect for the law, the need to provide just punishment, sentencing disparities. and the need to avoid unwarranted We therefore conclude that the district court did not commit procedural error in this regard. Finally, Rivas contends that his sentence is substantively unreasonable because the district court did not give sufficient weight to his arguments for a lower sentence. However, after considering Rivas arguments about his childhood, his lack offense, of criminal the district well-below-Guidelines Therefore, we history, sentence conclude that and the court of reasonable. 6 determined 180 Rivas seriousness months sentence of the that a was appropriate. is substantively Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 7

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