US v. Selvin Najera, No. 14-4083 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4083 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SELVIN DARIO NAJERA, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District Judge. (7:12-cr-00066-GEC-2) Submitted: October 28, 2014 Before NIEMEYER Circuit Judge. and MOTZ, Decided: Circuit Judges, November 14, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion. Terry N. Grimes, TERRY N. GRIMES, ESQ., P.C., Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew Bassford, Laura Day Rottenborn, Assistant United States Attorneys, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Selvin Dario Najera was convicted, after a jury trial, of conspiracy to distribute methamphetamine. sentenced him to 235 months’ The district court imprisonment. He now appeals, asserting that the district court erred by denying his motion for a bill of particulars and by allowing the testimony of his daughter, which he contends contained inadmissible hearsay. He also challenges his sentence, arguing that the court erred in determining the weight of the drugs attributable to him, enhancing his sentence based on a finding that he obstructed justice, and denying him the safety valve sentencing reduction, 18 U.S.C. § 3553(f) (2012). Concluding that the district court did not err, we affirm Najera’s conviction and sentence. Najera that the moved United for States a be bill of particulars, directed to requesting specify when the conspiracy is alleged to have begun and on what dates he was alleged to have distributed methamphetamine. this information present any was alibi necessary defense. to prepare Because the He asserted that a defense Government and to provided Najera with full discovery and because Najera failed to show that he suffered any unfair surprise, United States v. Jackson, 757 F.2d 1486, 1491 (4th Cir. 1985), we conclude that the district court did not abuse its discretion in determining that this was a discovery issue and denying the motion for a bill of 2 particulars. See United States v. MacDougall, 790 F.2d 1135, 1153 (4th Cir. 1986). Najera challenges the testimony of his daughter as to their relationship, contending that it was unfairly prejudicial. We find no abuse of discretion by the district court in admitting this evidence as relevant and determining that it was not unfairly prejudicial. See United States v. Kelly, 510 F.3d 433, 436-38 (4th Cir. 2007); United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (providing standard). the district court’s determination that We also uphold Najera’s daughter’s testimony concerning her discovery that he was involved in the drug trade was admissible as a coconspirator statement. See United States v. Portsmouth Paving Corp., 694 F.2d 312, 320 (4th Cir. 1982) existence (requiring and a preponderance participation in of the conspiracy evidence in of order for coconspirator statement exception to hearsay rule to apply). Najera next contends that the district court erred in determining that, for sentencing purposes, he was responsible for more than methamphetamine. in its Najera. five, but less than fifteen kilograms of We find no clear error by the district court calculation of the amount of drugs attributable to See United States v. General, 278 F.3d 389, 393 (4th Cir. 2002); United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). 3 Najera also challenges the two-level enhancement to his sentence after the district court found that he obstructed justice by committing perjury in his testimony. We have reviewed the trial testimony and the findings by the district court and find no clear error in the determination that Najera obstructed justice by presenting perjured testimony. See United States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005) (providing standard); United States v. Dunnigan, 507 U.S. 87, 95-96 (1993) (upholding obstruction of justice enhancement for perjury). Lastly, Najera asserts that the district court erred by denying him the sentence reduction under the safety valve provision of 18 U.S.C. § 3553(f). Because the district court did not clearly err in finding that Najera committed perjury and failed to accept responsibility for his criminal conduct, the safety valve reduction was appropriately denied. See United States v. Ivester, 75 F.3d 182, 184 (4th Cir. 1996). Accordingly, 235-month sentence. facts and materials legal before we affirm Najera’s conviction and his We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED 4