US v. Danilo Quesada-Guerrero

Filing 920090218


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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4174 UNITED STATES OF AMERICA, Plaintiff ­Appellee, v. DANILO QUESADA-GUERRERO, Defendant ­ Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00043-NCT-1) Submitted: February 6, 2009 Decided: February 18, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Charles L. White, Greensboro, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Randall S. Galyon, Assistant United States Attorney, Greensboro, North Carolina, for Appellant. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Danilo Quesada-Guerrero pled guilty to conspiracy to distribute cocaine hydrochloride, 21 U.S.C. § 846 (2006) (Count 1), and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008) (Count 3). He received a sentence of life imprisonment for the conspiracy conviction and a consecutive five-year sentence for the § 924(c) conviction. arguing that the Quesada-Guerrero appeals the sentence, court erred in failing to make district adequate findings to support its enhancement for obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1 (2007), based on perjury, and erred in denying him an adjustment for acceptance of responsibility, USSG § 3E1.1. We affirm. In the spring of 2006, Quesada-Guerrero and several co-conspirators were under surveillance for suspected drug trafficking, during which time they were observed removing bags from a tractor trailer with a California license plate that was parked later at a trailer the park in Greensboro, trailer at it North the was Carolina, When on and the the refueling trailer tractor park. stopped tractor left Greensboro, interstate highway and searched, but no contraband was found. After he was released, the driver of the tractor trailer called Quesada-Guerrero three times in quick succession. 2 Later that morning, Quesada-Guerrero and others under surveillance were observed driving from various addresses they frequented to Quesada-Guerrero's residence, taking evasive measures as they did so. Quesada-Guerrero then drove away with When a Greensboro Quesada-Guerrero two men in his Nissan Titan pickup truck. police unit attempted to stop the truck, refused to stop and fled at high speed, eventually crashing the truck into a tree. 1 A police officer, Corporal Gill, chased Carrying a Quesada-Guerrero on foot through a residential area. handgun, Quesada-Guerrero approached Jeanne Thilo, who was in her driveway packing her van for a trip, and tried to carjack the vehicle. Thilo pushed him away and Quesada-Guerrero again fled, with Corporal Gill ordering him to stop. Quesada-Guerrero turned toward Gill and pointed his gun at Gill, who took cover. When other police officers arrived, Quesada-Guerrero was located hiding under a boat behind a neighboring house. A loaded .38 caliber revolver was on the ground near him and he had a loaded .25 caliber pistol in his pocket. One of the passengers in the The other, truck, Amado Sosa-Dominguez, was also apprehended. Arley Lovaina, escaped. 1 Beside the crashed truck, police found two semi-automatic assault rifles. Inside the truck, they found packages containing a total of 7.762 kilograms of powder cocaine, bags containing an additional 214.03 grams of powder cocaine, 1.8 grams of cocaine base, $13,020 in cash, and a digital scale. 3 According to information contained in the presentence report, Quesada-Guerrero waived his Miranda 2 rights and acknowledged that the driver of the tractor trailer called him when the trailer was stopped and searched. He said the trailer was carrying money in payment for thirty kilograms of cocaine, which had not been discovered, and that the trailer initially brought 100 kilograms of cocaine to Greensboro which had been stored at the trailer park, but was no longer there. However, in written objections to the presentence report, Quesada-Guerrero challenged the recommended adjustments. He denied making the statement about money hidden in the tractor trailer, Corporal attempting Gill. At the carjacking, and pointing Gill, and a gun at sentencing, Thilo, Detective Williams, who took Quesada-Guerrero's post-arrest statement, all testified about his conduct. In his own testimony Quesada- Guerrero repeated his denials. Finding that Quesada-Guerrero's testimony raised the possibility that he had given knowingly false testimony concerning calling material into matters, his and thereby of obstructed justice, question acceptance responsibility, the district court continued the sentencing for several days to allow the parties time to prepare to address these issues. 2 When sentencing recommenced, the court determined Miranda v. Arizona, 384 U.S. 436 (1966). 4 that Quesada-Guerrero had given perjured testimony. The court added an adjustment for obstruction of justice, and denied him an adjustment for acceptance of responsibility. decision increased the advisory guideline The court's to life range imprisonment. 3553(a) (2006) The court decided that none of the 18 U.S.C. § factors would support a sentence below the guideline range. The court imposed a life sentence for Count 1, followed by a consecutive five-year sentence for Count 3. On appeal, Quesada-Guerrero first argues that the adjustment for obstruction of justice was made without adequate findings. § 3C1.1 The district court's factual findings supporting the of justice enhancement are reviewed for obstruction clear error. Cir. 2004). United States v. Kiulin, 360 F.3d 456, 460 (4th The adjustment applies when the district court determines that a defendant committed perjury. USSG § 3C1.1 comment. (n.4(b)); see also United States v. Dunnigan, 507 U.S. 87, 94 (1993). The court must find that the defendant gave false testimony under oath "concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." Id.; United When the States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995). sentencing court finds that a defendant has committed perjury, it is preferable for the court to address all the elements of perjury separately and clearly, but a finding that "encompasses 5 all of the factual predicates for a finding of perjury" is sufficient. Dunnigan, 507 U.S. at 95. contends that the district court's Quesada-Guerrero findings were inadequate because it found only that he testified falsely, but did not find that his false testimony was material or intended to deceive. In fact, the district court identified the issue at the first sentencing hearing as whether QuesadaGuerrero matters testified by denying falsely the and knowingly and concerning material by conduct statements described Williams, Thilo and Gill. Dunnigan did not require the court to repeat its conclusion that the false testimony was material and willfully deceptive at the second hearing. Quesada-Guerrero also claims that the district court failed to identify in what way his testimony was false, and wrongly believed that Thilo testified that Quesada-Guerrero had put a gun into her side. 3 district court did not However, we are satisfied that the clearly err in accepting Thilo's testimony that Quesada-Guerrero had attempted to take her van at gunpoint and rejecting Quesada-Guerrero's blanket denial. With respect to the denial of acceptance of responsibility, a defendant generally is not eligible for the Thilo testified, "I felt something on the side of me," turned and "saw a person standing next to the van and he had a gun . . . ." 3 6 acceptance of responsibility adjustment under USSG § 3E1.1 when he receives an upward adjustment for obstruction of justice under USSG § 3C1.1. See USSG § 3E1.1, comment. (n.4); United The States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001). defendant has the burden of showing that his circumstances are extraordinary. Id. Quesada-Guerrero contends that it was error to require him to show that his case was extraordinary when the district valid. court's Because finding the of obstruction court of justice not err was in not its district did determination of obstruction of justice, this claim is without merit. We therefore affirm the sentence. oral argument because in the the facts and legal before We dispense with contentions the court are and adequately presented materials argument would not aid the decisional process. AFFIRMED 7

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