US v. Mario Arias

Filing 920090330

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4271 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO E. ARIAS, Defendant - Appellant.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) Submitted: March 12, 2009 Decided: 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 considering 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 Morrow's from obtained 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 prohibits that admission not statements subject cross- 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 United States (2005), concluded sentencing. that the rule announced in Crawford applies at 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 violate defendant's confrontation rights collecting cases 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. know each other's identity, and corroborated with surveillance physical 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 court's findings Sentencing error and Guidelines, for clear 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 prosecution, conviction." or sentencing of the instant offense of 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 suppression law enforcement officers had not administered oral Miranda warnings prior to questioning impeded the him. Additionally, by the court found lying that to Arias investigation initially officers 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 residence significantly the 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). 5 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 After the calculating district appropriate must consider advisory it in range, court 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. Appellate 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 Arias's rehabilitative efforts. After 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 would process. AFFIRMED 8

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