UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 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
8