US v. Ivan Perez
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00414-WDQ-1. Copies to all parties and the district court/agency. [999348083].. [13-4332, 13-4333]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IVAN ALTAMIRANO PEREZ,
Defendant - Appellant.
No. 13-4333
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERTO MORALES PEREZ,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:11-cr-00414-WDQ-1; 1:11-cr-00414-WDQ-2)
Submitted:
March 31, 2014
Before MOTZ and
Circuit Judge.
GREGORY,
Decided:
Circuit
Judges,
and
May 1, 2014
DAVIS,
Senior
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No. 13-4332 affirmed; No. 13-4333
unpublished per curiam opinion.
vacated
and
remanded
by
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland; Richard B. Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN,
PA, Baltimore, Maryland, for Appellants.
Rod J. Rosenstein,
United States Attorney, Tamera L. Fine, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Roberto Morales Perez (“Roberto Morales”) pled guilty
pursuant to a written plea agreement to conspiracy to commit
identification
document
fraud,
in
violation
of
18
U.S.C.
§§ 1028(c)(1), (f) (2012) (count one), Social Security number
fraud,
in
violation
§ 408(a)(7)(C)
immigration
of
(2012)
18
(count
documents,
in
(2012) (count eleven).
Morales’
Guidelines
imprisonment,
§ 2
ten),
(2012)
and
42
fraud
and
misuse
and
violation
of
18
U.S.C.
U.S.C.
§§ 2,
of
1546
The district court calculated Roberto
range
enhancing
U.S. Sentencing
U.S.C.
at
seventy
his
Guidelines
to
offense
Manual
eighty-seven
level
six
(“USSG”)
levels
§ 2L2.1
months’
under
cmt.
n.5
(2012), and sentenced him to concurrent terms of seventy-two
months’ imprisonment on counts one and eleven and a concurrent
term
of
sixty
months’
imprisonment
on
count
ten.
Ivan
Altamirano Perez (“Ivan Altamirano”) pled guilty to conspiracy
to
commit
18 U.S.C.
identification
§§ 1028(c)(1),
transferring
false
document
(f)
fraud,
(count
identification
in
one),
violation
two
documents,
in
counts
violation
of
of
of
18 U.S.C. §§ 2, 1028(a)(2), (c)(1) (counts three and six), two
counts
of
18 U.S.C.
seven),
Social
§ 2
and
and
two
Security
42
U.S.C.
counts
of
number
fraud,
§ 408(a)(7)(C)
fraud
and
in
violation
(counts
misuse
of
four
of
and
immigration
documents, in violation of 18 U.S.C. §§ 2, 1546 (counts five and
3
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eight).
Filed: 05/01/2014
The
Guidelines
district
range
at
Pg: 4 of 9
court
calculated
seventy-eight
to
Ivan
Altamirano’s
ninety-seven
months’
imprisonment, enhancing his offense level four levels under USSG
§ 3B1.1(a)
for
his
aggravating
role,
and
sentenced
him
to
concurrent terms of ninety-seven months’ imprisonment on counts
one, three, five, six, and eight and concurrent terms of sixty
months’
imprisonment
Defendants
on
challenge
counts
the
four
and
application
seven.
of
the
On
appeal,
four-level
and
six-level enhancements.
We
sentences
review
for
Ivan
Altamirano’s
reasonableness
abuse-of-discretion standard.”
38,
41,
51
(2007).
and
Roberto
“under
a
Morales’
deferential
Gall v. United States, 552 U.S.
When
reviewing
a
sentence
for
reasonableness, we must ensure that the district court correctly
calculated the defendant’s Guidelines range.
Miscalculation
significant
of
the
procedural
Guidelines
error.
Id. at 49, 51.
range
Id.
at
51;
qualifies
United
as
a
States
v.
Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008) (“An error in the
calculation of the applicable Guidelines range, whether an error
of fact or of law, infects all that follows at the sentencing
proceeding,
district
including
court,
unreasonable.”).
court’s
the
and
In
application
ultimate
makes
assessing
of
the
a
a
sentence
sentence
challenge
Guidelines,
4
chosen
to
we
by
the
procedurally
the
district
review
legal
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conclusions
Filed: 05/01/2014
de
novo
and
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factual
findings
for
clear
error.
United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir.
2009).
Ivan Altamirano contends that the district court erred
in enhancing his offense level under USSG § 3B1.1(a), arguing
that
the
enhancement
was
told
special
statements
evidentiary
to
a
hearing
in
supported
the
only
agent
who
district
by
out-of-court
testified
court
the
that
and
at
the
Government did not meet its burden to show he qualified for the
enhancement.
A defendant qualifies for a four-level enhancement
to his offense level if he “was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.”
USSG § 3B1.1(a).
The district court’s
determination that a defendant was an organizer or leader is a
factual
matter
reviewed
for
clear
error.
United
States
v.
Thorson, 633 F.3d 312, 317 (4th Cir. 2011).
After review of the parties’ briefs and the record, we
find
no
reversible
procedural
error
in
the
district
court’s
application of the four-level enhancement to Ivan Altamirano.
A sentencing
court
information
before
provided
that
the
properly
it,
may
“consider
including
information
has
reliability to support its accuracy.’”
‘any
relevant
uncorroborated
hearsay,
sufficient
indicia
of
United States v. Powell,
650 F.3d 388, 392 (4th Cir. 2011) (quoting United States v.
5
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Wilkinson,
applying
Filed: 05/01/2014
590
the
F.3d
259,
four-level
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269
(4th
Cir.
enhancement
to
2010)).
Ivan
Here,
Altamirano,
in
the
district court relied on out-of-court statements of cooperating
individuals relayed to the special agent.
The court also relied
on statements in exhibits admitted into evidence, the accuracy
and
reliability
of
which
are
not
contested,
and
the
agent’s
testimony based on his investigatory involvement and personal
observations.
corroborate
These
the
latter
statements
two
of
categories
the
of
cooperating
evidence
individuals
identifying Ivan Altamirano as the leader of a fake document
manufacturing organization.
Further, the evidence, taken together, easily supports
the
finding
activity.
that
Ivan
Altamirano
was
a
leader
of
criminal
He was identified as a leader of a fake document
manufacturing organization by multiple cooperating individuals.
He
controlled
the
activities
of
the
organization’s
document
salesman and rotated responsibility for and the right to receive
proceeds from the sales of fake documents generated with the
organization’s two other leaders.
He had involvement in the
logistics of the organization, subletting and paying for the
room that served as the organization’s mill for manufacturing
the fake documents, and there is no dispute that more than five
individuals
were
involved
in
the
criminal
activity.
We therefore conclude that the district court did not reversibly
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err in enhancing Ivan Altamirano’s offense level four levels
under USSG § 3B1.1(a).
See United States v. Jones, 356 F.3d
529, 538 (4th Cir. 2004) (affirming application of four-level
enhancement
allocation
divided,
where
of
drugs
and
to
handled
transactions);
(4th Cir.
defendant
1997)
dealers,
the
United
recruited
determined
logistics
States
(affirming
dealers,
v.
and
how
controlled
profits
arrangements
Perkins,
application
108
of
were
for
512,
F.3d
the
518
enhancement
where
defendant “directed the activities of other members of the drug
ring
and
facilitated
the
criminal
enterprise
by
renting
apartments, acquiring pagers, hiring a lawyer for a codefendant,
and paying for the bond of another codefendant”).
Roberto
Morales
challenges
the
application
by
the
district court of the six-level upward departure to his offense
level
under
Guidelines
offenses
USSG
contains
based
§ 2L2.1(b)(2).
offenses
§ 2L2.1
on
the
cmt.
enhancements
number
The maximum
involving
§ 2L2.1(b)(2)(A)-(C).
n.5.
100
of
Section
for
2L2.1
involved.
enhancement
is
or
documents.
Application
Note
the
document-trafficking
documents
more
of
5
nine
to
levels,
the
USSG
for
USSG
Guideline
states: “If the offense involved substantially more than 100
documents, an upward departure may be warranted.”
cmt. n.5.
7
USSG § 2L2.1
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Roberto Morales stipulated in his plea agreement that
a
nine-level
enhancement
to
his
offense
level
was
warranted
under USSG § 2L2.1(b)(2)(C) because his offense involved “100 or
more” documents.
The district court applied a six-level upward
departure under USSG § 2L2.1 cmt. n.5 based on its determination
that the number of documents involved was 9900.
After review of
the record, however, we conclude that this determination was not
supported by the evidence of record.
The district court reduced
the number of fake permanent resident identification cards the
document manufacturing organization could produce based on the
available printing supplies (12,375) by what it determined to be
an
organization-wide
printing
“error
rate”
(2475) to arrive at the figure of 9900.
of
twenty
percent
Nothing in the record,
however, including hearsay adduced at the evidentiary hearing,
supports the district court’s determination regarding this error
rate.
We reject as unpersuasive the Government’s arguments
that
the
district
court’s
application
of
the
six-level
enhancement was supported by its evidence estimating the number
of documents for purposes of USSG § 2L2.1 cmt. n.5 at between
10,000
and
13,500.
We
further
conclude
court’s calculation error was not harmless.
v.
Savillon-Matute,
United States
v.
636
Mehta,
F.3d
594
119,
F.3d
8
123
277,
283
that
the
district
See United States
(4th
(4th
Cir.
Cir.
2011);
2010).
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The record does not support the conclusion that Roberto Morales
would have received the same sentences had the district court
not applied the six-level upward departure based on its clearly
erroneous calculation of 9900 documents.
Accordingly, in No. 13-4332, we affirm the district
court’s
judgment.
In
No.
13-4333,
we
vacate
the
district
court’s judgment and remand for resentencing. *
We dispense with
oral
contentions
argument
adequately
because
presented
in
the
the
facts
and
materials
legal
before
this
court
are
and
argument would not aid the decisional process.
No. 13-4332 AFFIRMED
No. 13-4333 VACATED AND REMANDED
*
By our disposition, we indicate no
appropriate sentence to be imposed on remand.
9
view
as
to
the
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