United States v. Donaldson-Pinilla

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4561

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEFFETH DONALDSON-PINILLA,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:03-cr-00744-SB)

Submitted: December 3, 2007 Decided: September 9, 2008

Before TRAXLER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Robert Hayden Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Following a jury trial, Jeffeth Donaldson-Pinilla was

convicted of conspiracy to import five kilograms or more of cocaine

into the United States, in violation of 21 U.S.C. ' 963 (2000),

importation or aiding and abetting others in the importation of 500

grams or more of cocaine into the United States, in violation of 21

U.S.C. '' 952(a), 960(a)(1) & (b)(2) (2000) and 18 U.S.C. ' 2

(2000), conspiracy to possess with intent to distribute and to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C. ' 846 (2000), and attempting to possess with intent to

distribute 500 grams or more of cocaine, in violation of 21

U.S.C.A. ' 841 (West 1999 & Supp. 2007). The district court

imposed a 320-month variance sentence, four months below the

advisory guideline range. Donaldson-Pinilla timely appealed.

Donaldson-Pinilla=s attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967),

questioning whether the district court erred in denying his motion

to suppress the statement he made before being administered the

Miranda* warnings, permitting the Government to introduce evidence

of Donaldson-Pinilla=s prior bad acts, attempts to hide evidence and

create an alibi, and his illegal alien status, and denying his

motion for a judgment of acquittal. Counsel also questions whether

the downward variance sentence was reasonable. Counsel states,

*
Miranda v. Arizona, 384 U.S. 436 (1966).

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however, that he has found no meritorious grounds for appeal.

Donaldson-Pinilla was advised of his right to file a pro se

supplemental brief, but he did not file one. For the reasons that

follow, we affirm Donaldson-Pinilla=s convictions and sentence.

Turning first to the denial of the motion to suppress,

Donaldson-Pinilla was stopped on the Port of Charleston,

specifically the Wando Welch terminal in Mt. Pleasant, South

Carolina, while police were conducting surveillance of drug

trafficking activity. Because he was slow in responding to the

officer=s commands to exit the vehicle and repeatedly tried to reach

back into the vehicle, the officer placed him on the ground and

handcuffed him for the officer=s safety. In response to the

officer=s questions, Donaldson-Pinilla identified himself by an

alias and stated that he was on the port with Ben Parker, an

individual believed by the investigators to be involved in drug

trafficking.

Donaldson-Pinilla sought to suppress this statement on

the ground that the officer failed to administer the Miranda

warnings before questioning him. Miranda warnings are required

when an individual is subjected to custodial interrogation. United

States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir. 1995). However,

Adrawing weapons, handcuffing a suspect, placing a suspect in a

patrol car for questioning, or using or threatening to use force

does not necessarily elevate a lawful stop into a custodial arrest

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for Miranda purposes.@ Id. at 1109-10 (citations omitted).

Although he does not dispute that there was reasonable suspicion to

conduct a brief investigatory stop, see Terry v. Ohio, 392 U.S. 1,

30 (1968) (permitting brief, investigatory stop when officer has

Areasonable, articulable suspicion that criminal activity is

afoot@), Donaldson-Pinilla argues that the restrictions placed on

him transformed his detention from a Terry stop to a full custodial

arrest. We find that these restrictions lasted only long enough to

verify the officer=s suspicions that Donaldson-Pinilla was engaged

in illegal activity and therefore did not elevate the Terry stop

into an arrest. Consequently, the Miranda warnings were not

required. Accordingly, the district court did not err by denying

Donaldson-Pinilla=s motion to suppress.

Next, Donaldson-Pinilla contends that the district court

erred by admitting evidence of his prior bad acts, as well as his

efforts to hide evidence and create an alibi for his presence on

the port. We find that the evidence of his prior bad acts was

admissible under Rule 404(b) of the Federal Rules of Evidence. See

United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004)

(discussing standard for admissibility of Rule 404(b) evidence).

In addition, we conclude that evidence that Donaldson-Pinilla tried

to obstruct justice by attempting to hide evidence and create an

alibi defense was admissible as intrinsic evidence of the crimes

charged. United States v. Higgs, 353 F.3d 281, 311 (4th Cir.

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2003); United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996).

Moreover, assuming arguendo that the district court erred by

admitting evidence of Donaldson-Pinilla=s illegal alien status, we

find any error harmless because, in light of the overwhelming

evidence against Donaldson-Pinilla, the jury was not substantially

swayed by the fact that he was in the country illegally. See

United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994) (discussing

standard for determining whether nonconstitutional error was

harmless).

Counsel also questions whether the district court erred

by denying Donaldson-Pinilla=s motions for a judgment of acquittal.

Where, as here, the motions were based on claims of insufficient

evidence, A[t]he verdict of a jury must be sustained if there is

substantial evidence, taking the view most favorable to the

Government, to support it.@ Glasser v. United States, 315 U.S. 60,

80 (1942); United States v. Smith, 451 F.3d 209, 216 (4th Cir.),

cert. denied, 127 S. Ct. 187 (2006). We have reviewed the record

and find that substantial evidence supported Donaldson-Pinilla=s

convictions on each count.

Finally, Donaldson-Pinilla challenges the reasonableness

of his sentence. After United States v. Booker, 543 U.S. 220

(2005), district courts are no longer bound by the range prescribed

by the sentencing guidelines. When sentencing a defendant, a

district court must: (1) properly calculate the guideline range;

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(2) determine whether a sentence within that range serves the

factors set out in ' 3553(a); (3) implement mandatory statutory

limitations; and (4) explain its reasons for selecting a sentence.

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The

Guidelines are Athe starting point and the initial benchmark.@ Gall

v. United States, 128 S. Ct. 586, 596 (2007). Next, the court

should give the parties the opportunity to argue for whatever

sentence they deem appropriate. The court is then instructed to

consider the ' 3553(a) factors in light of the defendant=s request

to impose a specific sentence. Id. Appellate courts review

sentences imposed by district courts for reasonableness, applying

an abuse of discretion standard. Gall, 128 S. Ct. at 597-98;

Pauley, 511 F.3d at 473-74.

Having thoroughly reviewed Donaldson-Pinilla=s sentence,

we find that the district court properly calculated his guideline

range and acted reasonably in imposing the downward variance

sentence. In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

Accordingly, we affirm Donaldson-Pinilla=s convictions and sentence.

This court requires that counsel inform Donaldson-

Pinilla, in writing, of the right to petition the Supreme Court of

the United States for further review. If Donaldson-Pinilla

requests that a petition be filed, but counsel believes that such a

petition would be frivolous, then counsel may move in this court

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for leave to withdraw from representation. Counsel=s motion must

state that a copy thereof was served on Donaldson-Pinilla. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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