US v. Mario Arias
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO E. ARIAS, Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:06-cr-00187-RWT-1)
March 12, 2009
March 30, 2009
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Jonathan C. Su, James M. Trusty, Assistant United States Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Mario E. Arias pled guilty pursuant to a written plea agreement to possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k) (2006). After
hearing testimony regarding Arias's affiliation with the MS-13 gang, the district court imposed a variance sentence of fiftyfive months' imprisonment. On appeal, Arias Finding no error, we affirm. initially contends that his Sixth
Amendment right of confrontation, as detailed in Crawford v. Washington, 541 U.S. 36 (2004), was violated when the district court considered the statements of individuals who did not
testify at the sentencing hearing. district court erred in
Arias also contends that the the hearsay evidence at
sentencing because of its unreliability. challenges the testimony of Shawn Morrow,
Specifically, Arias an agent with the
Bureau of Alcohol, Tobacco, Firearms, and Explosives. testimony was, in part, based on information
confidential informants and another law enforcement officer. In Confrontation testimonial examination. circuit following court Crawford, Clause the Supreme the are Court held at that trial to the of
Id. at 50-51. that has
However, as conceded by Arias, no the 543 effect U.S. 220 of Crawford has
considered v. Booker, 2
See, e.g., United States v. Bras, 483 F.3d 103, 109
(D.C. Cir. 2007) (determining Crawford did not alter general rule that hearsay evidence admitted at sentencing and does not
adopting rule); see also United States v. Brown, 430 F.3d 942, 943-44 (8th Cir. 2005) (noting courts have held that Crawford did not alter general rule of admissibility of hearsay evidence at sentencing). Further, contrary to Arias's argument, reliance on "No
hearsay evidence at sentencing is specifically authorized.
limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661 (2006); see also U.S. Sentencing Guidelines Manual ("USSG") § 1B1.4 (2006). Moreover, the traditional rules See any
of evidence are not applicable to sentencing proceedings. Fed. R. Evid. 1101(d)(3). Thus, a court may consider
related and reliable evidence before it, including hearsay, in establishing relevant conduct. F.2d 380, 381 (4th Cir. 1991). At sentencing, Morrow testified that Arias was a United States v. Bowman, 926
member and occasional leader in the Langley Park Salvatrucha 3
("LPS") clique of MS-13.
Morrow detailed orders given by Arias
in his leadership capacity, including pat-downs of members for wires, disciplinary beatings, missions to test gang loyalty, and "green lighting" a suspected informant for death. This
testimony generally was corroborated by Arias who admitted that he was involved with the LPS clique of MS-13 from 2004 until the time of his arrest in 2006. Arias also confirmed that he was a
leader in the clique and therefore able to issue orders such as "green lights." who and Moreover, did not the details provided by the were
informants, consistent evidence.
Audio recordings also were obtained by informants who Accordingly, we conclude
on occasion wore wires to meetings.
that the hearsay evidence was reliable and therefore properly considered by the district court at sentencing. Next, Arias contends that the district court erred in applying reviewing an the we enhancement district review for obstruction application of fact of of justice. the When
Sentencing error and
questions of law de novo. 456 (4th Cir. 2006). increase in offense
United States v. Green, 436 F.3d 449,
The Guidelines provide for a two-level level when a defendant "willfully
obstruct[s] or impede[s], or attempt[s] to obstruct or impede, the administration of justice with respect to the investigation, 4
USSG § 3C1.1 (2006).
Covered conduct includes
committing perjury and providing materially false statements to law enforcement officers that significantly impede the
investigation of the offense.
Id. at comment. (n.4(b), (g)).
The district court determined that an enhancement for obstruction testified of at justice the was warranted hearing because that Arias falsely
officers had not administered oral Miranda warnings prior to questioning impeded the him. Additionally, by the court found lying that to Arias
regarding the existence of a firearm in his residence.
argues, as he did in the district court, that the enhancement should not have been applied as any inaccuracy in his testimony at the suppression hearing was the result of confusion or faulty memory firearm and in that his his failure did to disclose not the presence impede of a
officers' investigation. "Application of [§ 3C1.1] is appropriate if the
sentencing court finds that the defendant when testifying under oath (1) gave false testimony; (2) concerning a material matter; (3) with the willful intent to deceive (rather than as a result
Miranda v. Arizona, 384 U.S. 436 (1966).
of confusion, mistake, or faulty memory)."
United States v.
Quinn, 359 F.3d 666, 681 (4th Cir. 2004) (internal quotation marks and citation omitted). It is evident from the materials
in the joint appendix that Arias unequivocally testified that he was not provided oral Miranda warnings prior to questioning by law enforcement. As determined by the district court, this
testimony was false and intended to deceive.
The testimony was
unquestionably material since a finding that the officers failed to administer Miranda warnings could have resulted in the
suppression of the firearm at issue.
Thus, the district court Because we
properly applied a two-level increase under § 3C1.1.
have concluded that Arias's perjury at the suppression hearing supports the enhancement, we need not address Arias's contention that his statements to law enforcement officers did not
significantly impede the investigation. Finally, unreasonable. Guidelines Arias contends that the his sentence is
appropriate must consider
advisory it in
conjunction with the factors set forth in 18 U.S.C. § 3553(a) (2006). Gall v. United States, 128 S. Ct. 586, 596 (2007). "If
[the district court] decides that an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to
support the degree of the variance." 6
Id. at 597.
review of a district court's imposition of a sentence, "whether inside, just outside, or significantly outside the Guidelines range," is for abuse of discretion. Id. at 591.
The district court followed the necessary procedural steps in sentencing Arias, appropriately treating the Sentencing Guidelines as advisory, properly calculating and considering the applicable Guidelines range, and weighing the relevant § 3553(a) factors. While the court acknowledged Arias's post-arrest
attempt to rehabilitate himself, it nevertheless was concerned with Arias's status in the MS-13 gang, his initial failure to disassociate himself from the gang after his arrest, and the nature of the offense of conviction. The court concluded that
"[t]he MS-13 gang specifically, the LPS clique is a serious matter, one that must be deterred and one that must be addressed with the goal of protecting the public from further crimes of the defendant and those who participate in this organization." For these reasons, the district court determined that a sentence within the applicable Guidelines range "would be
woefully inadequate" and sentenced Arias to a variance sentence of fifty-five months. The court noted that it had chosen a
sentence five months below the statutory maximum, see 18 U.S.C. § 924(a)(1)(B) recognition of (2006) (prescribing five-year maximum), in
considering the court's application of the relevant § 3553(a) 7
factors to the facts in this case and affording "due deference" thereto, Gall, 128 S. Ct. at 597, we conclude that the district court's imposition of a variance sentence did not constitute an abuse of discretion. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are and adequately argument presented not in aid the the materials decisional
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