United States v. Arias

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4271

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 fifty-

five months’ imprisonment. Finding no error, we affirm.

On appeal, Arias 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. Arias also contends that the

district court erred in considering the hearsay evidence at

sentencing because of its unreliability. Specifically, Arias

challenges the testimony of Shawn Morrow, an agent with the

Bureau of Alcohol, Tobacco, Firearms, and Explosives. Morrow’s

testimony was, in part, based on information obtained from

confidential informants and another law enforcement officer.

In Crawford, the Supreme Court held that the

Confrontation Clause prohibits the admission at trial of

testimonial statements that are not subject to cross-

examination. Id. at 50-51. However, as conceded by Arias, no

circuit court that has considered the effect of Crawford

following United States v. Booker, 543 U.S. 220 (2005), has

2
concluded that the rule announced in Crawford applies at

sentencing. 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 does not

violate defendant’s confrontation rights and 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

hearsay evidence at sentencing is specifically authorized. “No

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

of evidence are not applicable to sentencing proceedings. See

Fed. R. Evid. 1101(d)(3). Thus, a court may consider any

related and reliable evidence before it, including hearsay, in

establishing relevant conduct. United States v. Bowman, 926

F.2d 380, 381 (4th Cir. 1991).

At sentencing, Morrow testified that Arias was a

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.” Moreover, the details provided by the

informants, who did not know each other’s identity, were

consistent and corroborated with surveillance and physical

evidence. Audio recordings also were obtained by informants who

on occasion wore wires to meetings. Accordingly, we conclude

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 an enhancement for obstruction of justice. When

reviewing the district court’s application of the Sentencing

Guidelines, we review findings of fact for clear error and

questions of law de novo. United States v. Green, 436 F.3d 449,

456 (4th Cir. 2006). The Guidelines provide for a two-level

increase in offense 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, or sentencing of the instant offense of

conviction.” 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 of justice was warranted because Arias falsely

testified at the suppression hearing that law enforcement

officers had not administered oral Miranda ∗ warnings prior to

questioning him. Additionally, the court found that Arias

impeded the investigation by initially lying to officers

regarding the existence of a firearm in his residence. Arias

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 and that his failure to disclose the presence of a

firearm in his residence did not significantly impede 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

properly applied a two-level increase under § 3C1.1. Because we

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, Arias contends that his sentence is

unreasonable. After calculating the appropriate advisory

Guidelines range, the district court must consider 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.” Id. at 597. Appellate

6
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) (2006) (prescribing five-year maximum), in

recognition of 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. 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