US v. Medina-Castellanos

Filing 920100104

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4341 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CARLOS JAVIER MEDINA-CASTELLANOS, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:05-cr-00155-F-1) Submitted: December 1, 2009 Decided: January 4, 2010 Before KING and Circuit Judge. AGEE, Circuit Judges, and HAMILTON, Senior Affirmed and remanded by unpublished per curiam opinion. Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carlos Javier Medina-Castellanos appeals his convictions and sentence following two jury trials on charges of conspiring to commit interstate transportation of stolen property, in violation of 18 U.S.C. 371 (2006) ("Count One"), and two counts of committing violent crimes in aid of racketeering activity, in violation of 18 U.S.C. 1959(a)(3) (2006) ("Counts Three and Four"). At the conclusion of Medina-Castellanos' first jury trial, he was convicted on Counts One and Four. Count Four was based upon a May 2, 2004 home invasion robbery that Medina-Castellanos organized, and in which he participated, against first a fellow co-conspirator. concluded, he After was Medina-Castellanos' jury trial re-indicted for the conduct on which the first jury could not reach a verdict. with This indictment a also charged in Medinaaid of Castellanos committing violent crime racketeering activity, in violation of 18 U.S.C. 1959(a)(3) ("Count Two"). Count Two was based upon a February 15, 2004 home invasion robbery that Medina-Castellanos organized, and in which he participated, against a different co-conspirator. At the conclusion of his second jury trial, Medina-Castellanos was convicted on Count Two. At sentencing, Medina-Castellanos received an advisory guidelines range of 360 months to life imprisonment. 2 However, the statutory maximum for Counts Four and Two was 240 months and sixty months for Count One. Because the district court sentenced Medina-Castellanos to the statutory maximum sentence for each count and ordered that the sentences be served of 540 consecutively, Medina-Castellanos' aggregate sentence months' imprisonment fell within his advisory guidelines range. On appeal, Medina-Castellanos challenges the jury convictions, arguing that the district court erred in admitting a letter Medina-Castellanos had written and that the district court erred in allowed his former wife to testify against him. He further raises multiple claims related to his sentence. Finding no reversible error, we affirm. Medina-Castellanos first argues that the district court erred in admitting, during his first trial, a letter he wrote to his uncle. Medina-Castellanos claims that the letter was not adequately authenticated and that the letter was more prejudicial than probative. This court reviews decisions regarding authentication of evidence under Fed. R. Evid. 901 for abuse of discretion. 713 (4th Cir. 2002). United States v. Patterson, 277 F.3d 709, Medina-Castellanos' claim of prejudice under Fed. R. Evid. 403 is reviewed for plain error as it is raised for the first time on appeal. 507 U.S. 725, 732 (1993). United States v. Olano, Plain error requires a finding that: (1) there was error; (2) the error was "plain;" and (3) the 3 error affected Medina-Castellanos' substantial rights. the three elements to the notice are the met, error this only court "if or may Id. If its exercise discretion affect[s] the error seriously of fairness, integrity, public reputation judicial proceedings." the proceedings and Id. find We have reviewed the transcript of that the letter was properly authenticated and its admission was not unduly prejudicial. Medina-Castellanos next argues that the district court erred in admitting the testimony of his former wife. extent Medina-Castellanos claims his former wife's To the testimony violated the confidential marital communications privilege, his claim is reviewed for abuse of discretion. See United States v. To the extent testimony Singleton, 260 F.3d 1295, 1301 (11th Cir. 2001). that Medina-Castellanos claims his former wife's violated the adverse spousal testimony privilege, his claim is reviewed for plain error because he did not lodge an objection in the district court on this basis. The confidential marital communication privilege applies to "[i]nformation that is privately disclosed between husband and wife in the confidence of the marital relationship." United States v. Parker, 834 F.2d 408, 411 (4th Cir. 1987). Medina-Castellanos fails to point to any act to which his former wife testified that would fall within the confidential marital communications privilege. Therefore, 4 his claim fails. See United States v. Acker, 52 F.3d 509, 514-15 (4th Cir. 1995). Also, Medina-Castellanos' adverse spousal testimony claim fails because Medina-Castellanos and his former spouse who testified were divorced at the time of his trials. Porter, 986 F.2d 1014, 1018 (6th Cir. 1993). As challenges the to his sentence, court's Medina-Castellanos of his first advisory According See United States v. district calculation guidelines range with respect to Counts Four and Two. to Medina-Castellanos, the district court should have calculated his base offense level for Counts Four and Two using U.S. Sentencing Guidelines Manual ("USSG") 2A2.2, Aggravated In Assault, rather than USSG 2A3.1, Criminal Sexual Abuse. reviewing guidelines, findings for a district this court court's reviews and application the of the sentencing factual de novo. district court's clear error its legal conclusions United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir. 2009). The district court applied the correct guideline, USSG 2E1.3, to Counts Four and Two charging Medina-Castellanos with committing violent crimes in aid of racketeering activity. USSG 2E1.3; USSG App. A (Statutory Index). See According to USSG 2E1.3, the district court is to apply the higher of either a base offense level of 12 or "the offense level applicable to the underlying crime or racketeering activity." 5 USSG 2E1.3(a)(1), (2). Where, as here, more than one base offense level exists within a particular guideline, a district court is to use the relevant conduct criteria in USSG 1B1.3 to determine the applicable offense level. United States v. Smith, 232 F.3d 650, 651 (8th Cir. 2000); USSG 1B1.2, comment. (n.2). Medina-Castellanos' relevant conduct included the February 15, 2004 and May 2, 2004 robberies during which victims were sexually assaulted. Thus, the district court's determination that sexual assault is the underlying crime for purposes of USSG 2E1.3 is well-supported. See United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (upholding the district court's determination under USSG 2E1.3(a)(2) that the defendant's base offense level was 32 pursuant to USSG 2A1.5 because the defendant conspired to commit murder even though the defendant was acquitted of murder); see also United States v. Carrozza, 4 F.3d 70, 74 (1st Cir. 1993) (holding that, in determining base offense level in a RICO case, district court should not limit its relevant conduct to predicate acts charged against the defendant, but instead should consider all conduct reasonably foreseeable to the defendant in furtherance of the RICO enterprise). Accordingly, the district court did not err in determining the offense guideline for Counts Four and Two. Medina-Castellanos also challenges (1) the two-level USSG 3B1.1(c) enhancement he received for Counts Four and Two 6 based on his leadership or management role, (2) the two-level enhancement he received pursuant to USSG 2B1.1(b)(12)(B) for possession of a dangerous weapon for Count One, and (3) the twolevel USSG 3C1.1 enhancement he received for obstructing justice for Counts One and Four. 1 submitted in the appendices and We have reviewed the materials the parties' arguments and conclude that the district court did not err in applying the three challenged enhancements. 2 Finally, Medina-Castellanos claims that, because there were multiple counts that could not be grouped, the district court should have applied USSG 5G1.2 rather than USSG 3D1.4. Two of Medina-Castellanos' convictions were for violations of 18 U.S.C. 1959(a)(3), which are covered by USSG 2E1.3 and are specifically excluded from the grouping rules in USSG 3D1.2. Therefore, the district court properly treated the three counts as separate groups and applied USSG 3D1.4 in determining Medina-Castellanos' combined offense level. Medina-Castellanos' advisory guidelines range was calculated using the 2006 U.S. Sentencing Guidelines Manual. Section 2B1.1(b)(12)(B) was subsequently renumbered as USSG 2B1.1(b)(13)(B). See USSG 2B1.1(b)(13)(B) (2008). We have reviewed Medina-Castellanos' USSG 3C1.1 claim for plain error because Medina-Castellanos failed to object to it in the district court 2 1 7 Accordingly, we affirm Medina-Castellanos' convictions and sentence. However, we remand the case to the district court for correction of a clerical error in the criminal judgment. See Fed. R. Crim. P. 36. that Medina-Castellanos The judgment erroneously indicates pled guilty to the offenses of conviction. This error does not affect the validity of MedinaWe dispense with oral are adequately Castellanos' convictions or sentences. argument as the facts and legal contentions presented in the materials before the court and argument would not aid the decisional process. AFFIRMED AND REMANDED 8

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