United States v. Silva

United States Court of Appeals
For the First Circuit

No. 07-2320

UNITED STATES,

Appellee,

v.

MAXIMANO SILVA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Stahl, and Lipez,
Circuit Judges.

Jay Markell for appellant.
Maximano Silva on brief pro se.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.

January 23, 2009
 STAHL, Circuit Judge. Defendant-Appellant Maximano Silva

appeals both his conviction and sentence for conspiracy to obtain

and obtaining controlled substances by fraud, health care fraud,

identity theft, and aggravated identity theft. He argues, inter

alia, that his conviction rested on evidence illegally obtained and

that the district court improperly calculated his sentence.

Finding no error, we affirm.

I. Facts and Procedural Background

The conduct underlying the charges occurred during two

separate time periods, in 2000 and in 2004-2005. On May 31, 2000,

police officers searched Silva's home pursuant to a warrant and

discovered blank and forged prescription forms, pharmacy bags,

receipts and pill bottles for various narcotics, pieces of

identification in the names of person other than Silva, and other

items that linked Silva to identity theft and drug fraud

activities. The subsequent police investigation determined that

Silva forged prescriptions for narcotics and provided his wife and

a friend with fake identification to facilitate the filling of the

fraudulent prescriptions.

Silva's 2004-2005 participation with his wife and his

father in a "doctor shopping" conspiracy provided the basis for the

remaining charges.1 The scheme resulted in at least five doctors

1
The gap in the conduct underlying the charges is explained
by Silva's incarceration in 2001. On August 23, 1999, Silva was
convicted of obtaining controlled substances through false

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in different Massachusetts towns prescribing pain medications for

Silva's father at the same time. Silva also forged several

prescriptions for narcotics in the doctors' names, and Silva's

father or wife filled the prescriptions at various pharmacies in

Massachusetts.

On October 27, 2005, the grand jury returned a 24-count

indictment charging Silva with the following crimes: conspiracy to

obtain and obtaining controlled substances by fraud, in violation

of 21 U.S.C. §§ 843(a)(3) and 846; health care fraud, in violation

of 18 U.S.C. § 1347; identity theft in connection with obtaining

controlled substances by fraud, in violation of 18 U.S.C. §

1028(a)(7); and aggravated identity theft in connection with making

false statements, in violation of 18 U.S.C. § 1028A.

Silva filed a motion to suppress evidence seized in the

May 31, 2000, search, asserting that the warrant was not based on

probable cause. During two days of evidentiary hearings, Detective

Charles Devlin ("Devlin") and Silva's brother Norman testified.

Devlin's search warrant affidavit listed multiple sources of

information that linked Silva to identity theft activities,

pretenses and sentenced to probation. Silva subsequently violated
his parole and was incarcerated on January 19, 2001. Therefore,
the charges are based on Silva's conduct before his incarceration
in 2001 and after his release, which apparently occurred some time
in 2002.

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including statements made by Norman.2 On May 9, 2000, Norman

complained to Devlin at the Hudson police station that Silva had

accrued traffic tickets and medical bills in Norman's name. Norman

explained that he had entered Silva's bedroom and seen a speeding

ticket in his name, as well as a driver's license and phone bill of

someone in Marlborough.3 Devlin asked Norman to bring the items to

the station. Devlin later testified that he assumed Norman had

taken the items upon first discovering them and did not realize

Norman twice reentered Silva's bedroom. On May 9, Norman reentered

Silva's room, returned to the station, and provided Devlin with a

copy of the speeding ticket and medical bills. Devlin inquired

about the driver's license and cell phone bill and upon learning

that they were still at the family home, asked Norman to bring the

documents so that the police could get a search warrant. Norman

2
The information on which Devlin also relied included the
following: a statement by John D'Angelo ("D'Angelo") that his
wallet was stolen in November 1999 and he received a cell phone
bill in March 2000 indicating that an account had been opened in
his name and a phone mailed to Silva's address; Devlin's statement
that he called the phone number associated with D'Angelo's name on
March 7, 2000, and a voice like Silva's answered the phone;
Devlin's investigation of a shoplifting incident allegedly
involving Silva's cousin, Elcid Silva, which established that Silva
himself shoplifted and assaulted a store security officer but
falsely identified himself as Elcid; and Devlin's investigation of
two traffic tickets, which established that Silva falsely
identified himself as Norman when stopped by police on two
occasions.
3
Norman also told Devlin that Silva had disconnected his cell
phone the same day he had received a call he suspected was from the
police.

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retrieved D'Angelo's driver's license and cell phone bill and on

May 10, brought the items to the station.

On February 26, 2007, the court denied Silva's motion to

suppress in a memorandum opinion. United States v. Silva, 502 F.

Supp. 2d 143 (D. Mass. 2007). The court held Norman's first and

second searches of Silva's bedroom (which yielded the traffic

ticket in Norman's name) were private, noting Norman acted on his

own initiative and for his own interests. The court found that the

third search (yielding D'Angelo's driver's license and cell phone

bill) was a government search violating the Fourth Amendment.

Nonetheless, the district court found the search was valid under

the independent source doctrine.

The nine-day jury trial began on March 19, 2007. Silva

primarily argued that his sister and her husband, Paul Danforth

("Danforth"), who were arrested for passing forged prescriptions,

committed the crimes. At trial, Silva introduced a July 2005

letter written by Danforth from jail to his wife that allegedly

showed that the evidence seized in the May 2000 search belonged to

the Danforths.4 Because the parties initially believed Danforth

would be unavailable to testify, Silva conceded the letter was

4
The letter, in pertinent part, read as follows: "Liz, I
pretty much worry about every thing that they got in your mother's
house in 2000. I hope they don't find out it was us. Hopefuly
[sic] Christine will not fold. I hope you explained everything to
her. Don't let your mother or Max see this letter, it can Fuck us
Bad."

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hearsay and sought to admit it as a statement against penal

interest. When it became clear Danforth would testify, Silva

instead requested admission of the letter as a prior inconsistent

statement pursuant to Rule 613(b). At trial, Danforth denied

ownership of the evidence seized from Silva's bedroom. Danforth

admitted to writing part of the letter but denied writing the

portion relevant here. The court instructed the jury to consider

the letter only as evidence of Danforth's credibility; Silva did

not object. After a handwriting expert's testimony, the court

ruled the letter was admissible but could only be considered for

whether it was consistent with Danforth's testimony; again, Silva

did not object.

On March 29, 2007, the jury convicted Silva on all but

two counts. The court sentenced Silva to 81 months in prison and

36 months of supervised release. This appeal followed.

II. Motion to Suppress

Silva claims the evidence obtained in the May 31, 2000,

search should have been suppressed, arguing the authorizing warrant

lacked probable cause absent evidence obtained in earlier, illegal

searches. To support this claim, Silva asserts that his brother

Norman acted as a government agent when Norman found and provided

the police with various items. The district court rejected Silva's

claim, finding the search warrant valid under the independent

source doctrine.

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 We review the district court's legal conclusions in a

denial of a motion to suppress de novo and its factual findings for

clear error. United States v. Momoh, 427 F.3d 137, 140 (1st Cir.

2005) (citations omitted). "We will uphold a denial of a motion to

suppress if any reasonable view of the evidence supports it." Id.

(quoting United States v. Kornegay, 410 F.3d 89, 93 (1st Cir. 2005)

(internal quotation marks and citation omitted)). We review a

finding that a cleansed affidavit was sufficient under the de novo

review provisions set forth in Ornelas v. United States, 517 U.S.

690 (1996), with deference to the inferences drawn from facts found

by the lower court and law enforcement officers. United States v.

Dessesaure, 429 F.3d 359, 367 (1st Cir. 2005) (citing United States

v. Smith, 423 F.3d 25, 31 n.4 (1st Cir. 2005)).

Silva first argues Norman's second search of his bedroom

violated the Fourth Amendment, contending that Devlin "instigated

and counseled [it]." The Fourth Amendment's protection against

unreasonable searches and seizures applies only to government

action and not "to a search or seizure, even an unreasonable one,

effected by a private individual not acting as an agent of the

Government." United States v. Jacobson, 466 U.S. 109, 113 (1984)

(quoting Walter v. United States, 447 U.S. 649, 662 (1980)

(Blackmun, J., dissenting)). This circuit has identified the

following three factors as potentially relevant in deciding whether

a private party acts as a government agent: "the extent of the

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government's role in instigating or participating in the search,

its intent and the degree of control it exercises over the search

and the private party, and the extent to which the private party

aims primarily to help the government or to serve its own

interests." United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.

1997). We will not find state action simply because the government

has a stake in the outcome of a search. Compare id. (finding phone

company's interest in preventing defrauding of customers to be

primary purpose for search, even though it was "probably true that

there would have been no search" had government not informed

company of fraud) with United States v. Corngold, 367 F.2d 1, 5-6

(9th Cir. 1966) (finding "joint endeavor" subject to Fourth

Amendment where private party's purpose was solely to assist

federal agents, and agents helped open boxes and inspect contents).

See also United States v. Walther, 652 F.2d 788, 792 (9th Cir.

1981) (observing that presence of officers alone, without active

role in encouraging or assisting private search, does not implicate

Fourth Amendment, "especially where the private party has had a

legitimate independent motivation for conducting the search").

In the present case, the district court correctly

determined Norman did not act as a government agent in the second

search. Although Devlin encouraged Norman to bring items to the

police station, he did not participate in the search and exercised

no control over the manner in which it was conducted. Indeed,

-8-
Devlin did not tell Norman to search Silva's bedroom again because

he believed Norman already possessed the items. Moreover, Norman's

second search was motivated by his desire to clear his name; he

returned to the station with only those items that were relevant to

his concerns and that would exonerate him. Although Silva makes

multiple arguments about inferences the lower court could have

drawn from the evidence,5 he has failed to shown the court's

conclusions were clearly erroneous.

Silva also contends that the search warrant for the May

31, 2000, search was tainted by the evidence obtained in Norman's

third search of Silva's bedroom which the district court found

illegal.6 The court conducted an independent source inquiry and

held there was sufficient information to establish probable cause

for the issuance of the warrant. When conducting an independent

source inquiry, a court should first determine whether the police

officer would have sought the warrant even without the evidence

obtained from the illegal search and second, whether the warrant

contains sufficient information to establish probable cause after

5
For example, Silva argues it would have been easier and more
efficient for Norman to have cleared the traffic ticket in court
than to have continued dealing with the police and that Devlin's
previous knowledge of Silva's criminal history (and Norman's lack
thereof) revealed his intention to use Norman as an agent.
6
The Government concedes Norman acted as a government agent
in the third search of Silva's bedroom.

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setting aside the tainted information. Murray v. United States,

487 U.S. 533, 542 (1988); Dessesaure, 429 F.3d at 369.

Even after excising D'Angelo's license and cell phone

bill, ample evidence remained, see supra note 2, such that a

reasonable officer would seek a warrant considering the totality of

the circumstances, see Dessesaure, 429 F.3d at 369, satisfying the

first prong of Murray. With respect to the second, probable cause

prong of Murray, Devlin received D'Angelo's report and believed

that Silva answered his call to the cell phone number associated

with D'Angelo's name. After Norman's initial visit, Devlin

investigated the traffic stops and obtained corroborating evidence

from two police officers. Viewed objectively, this evidence,

independent of any information gained from Norman's illegal search,

provided probable cause to support Devlin's decision to seek a

warrant.7

III. Evidentiary Ruling

Silva next asserts that the district court incorrectly

held that Danforth's letter, see supra note 4, was admissible only

for impeachment purposes as an inconsistent statement. Even if we

7
We concur with the Government that Silva was not entitled to
a Franks hearing because the search warrant did not contain any
deliberately or recklessly false misstatements or omissions
material to a finding of probable cause. See Franks v. Delaware,
438 U.S. 154, 165 (1978).

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were to entertain Silva's claim,8 we review only for plain error.

United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995)

(citations omitted); see also Olano, 507 U.S. at 733-34

(distinguishing waiver from forfeiture and discussing plain error

review). Thus, Silva must show "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001) (citations

omitted).

The district court did not err in ruling that the letter

was hearsay, Fed. R. Evid. 801(c), admissible only for impeachment

purposes as a prior inconsistent statement, Fed. R. Evid. 613(b).

Silva insists the limited admissibility of Danforth's letter

violated a constitutional right to present exculpatory evidence.

But our facts differ from Crane v. Kentucky, 476 U.S. 683, 686-87

(1986), a case on which Silva heavily relies, where the Court

8
The Government suggests Silva waived this claim, and we tend
to agree. As we previously noted, Silva did not object when the
court, over the Government's objection, instructed the jury to
consider the letter only as evidence of Danforth's credibility
after Silva questioned Danforth about it. Silva again did not
object when the court later ruled that the letter was admissible
but could be considered only for its consistency with Danforth's
testimony. Moreover, Silva himself offered the letter as a prior
inconsistent statement pursuant to Rule 613(b) to impeach
Danforth's in-court testimony. See United States v. Mitchell, 85
F.3d 800, 807 (1st Cir. 1996) ("A party waives a right when it
makes an 'intentional relinquishment or abandonment' of it.")
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

-11-
reversed a conviction after the trial judge refused to admit any

evidence regarding the voluntariness of a confession after denying

a pre-trial motion to suppress. See also Holmes v. South Carolina,

547 U.S. 319, 331 (2006) (involving the complete exclusion of

evidence regarding a third party's guilt). Here, Danforth took the

stand and was subject to Silva's examination, including questions

regarding the letter he penned.9 Silva was able to present his

defense throughout the trial; he called a handwriting expert and

five police officers who testified about Danforth's fraudulent

activities, and his lawyer, in closing arguments, strenuously

argued that Danforth's testimony and the letter indicated that

Silva was not guilty of the conduct in 2000. Because the court

correctly applied the evidentiary rules and as Silva was not

deprived of any constitutional right, the district court did not

plainly err in limiting the admissibility of Danforth's letter.

See, e.g., Evans v. Verdini, 466 F.3d 141, 148-49 (1st Cir. 2006)

(upholding exclusion of hearsay statement for both substantive and

impeachment purposes against Sixth Amendment challenge).

IV. Jury Instructions

Silva's objection to the district court's instruction

regarding speculation also is unavailing. On the eighth day of

9
Indeed, the trial transcript reveals that the court
overruled various Government objections during the examination of
Danforth and permitted use of a visual presenter so that the jury
could view a copy of the letter while Danforth testified.

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trial, the jury asked the court, "Can suspicion, with lack of

evidence, regarding or toward any person other than the accused in

the case be used to formulate reasonable doubt?" The court

proposed an instruction which contained the following statement:

"The verdict must be based on the evidence and the reasonable

inferences to be drawn from the evidence. However, you should

never speculate." Silva initially agreed with the instruction but

later objected, arguing that the jury should be allowed to

speculate that someone else committed the crime.

While we would review de novo a claim that an instruction

embodied an error of law, United States v. Deppe, 509 F.3d 54, 58

(1st Cir. 2007); United States v. Nascimento, 491 F.3d 25, 33-34

(1st Cir. 2007), we review for abuse of discretion " whether the

instructions adequately explained the law or whether they tended to

confuse or mislead the jury on the controlling issues." United

States v. Ranney, 298 F.3d 74, 79 (1st Cir. 2002) (quoting United

States v. DeLuca, 137 F.3d 24, 37 (1st Cir. 1998)). To evaluate

whether a reasonable likelihood exists that the jury understood the

appropriate burden of proof, DeLuca, 137 F.3d at 37, this Circuit

examines the instruction not in isolation but as part of the charge

"taken as a whole," Victor v. Nebraska, 511 U.S. 1, 5 (1994)

(quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

We find that the lower court's instruction was correct as

a matter of law. The court was not wrong to stress that the jury

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should not speculate but instead should rely on the evidence

presented. See id. at 13 (finding instruction correct where court

cautioned the jury against influence by factors beyond the evidence

such as conjecture, sympathy, passion, or prejudice). Moreover,

the court explained the phrase "beyond a reasonable doubt" at least

twenty-five times during its charge, compare to Ranney, 298 F.3d at

80 (finding no likelihood of confusion where the court referenced

"beyond a reasonable doubt" some twenty-three times), creating more

than a reasonable likelihood that the jury understood the

instruction.

V. Sentencing

In addition to the objections regarding the pretrial and

trial proceedings, Silva appeals his sentence, contending the

district court (1) applied the wrong Base Offense Level ("BOL") to

his 2000 conduct, (2) used the wrong Guidelines manual, and (3)

found facts at sentencing not charged in the indictment or found by

the jury. We deal with these claims summarily.

Silva first argues that his BOL should have been six, not

seven.10 Because Silva did not previously object to this

calculation, we review for plain error. United States v. Reiner,

500 F.3d 10, 16 (1st Cir. 2007) (citation omitted). We find no

10
See U.S.S.G. § 2B1.1(a) (providing that the base offense
level is "(1) 7 if (A) the defendant was convicted of an offense
referenced to this guideline; and (B) that offense of conviction
has a statutory maximum term of imprisonment of 20 years or more;
or (2) 6, otherwise").

-14-
error in the district court's computation. Silva was convicted of

two counts of identity theft under 18 U.S.C. § 1028(a)(7), in

connection with obtaining controlled substances by fraud, 21 U.S.C.

§ 843(a)(3). These convictions subject Silva to imprisonment for

not more than 20 years. See 18 U.S.C. § 1028(b)(3)(A); 18 U.S.C.

§ 929(a)(2). Thus, under the plain language of U.S.S.G. §

2B1.1(a)(1), see supra note 10, Silva's convictions warranted a BOL

of seven.

Silva next raises an ex post facto challenge to the

district court's employment of the 2006 Federal Sentencing

Guidelines rather than the 1999 Guidelines.11 In his sentencing

memorandum, he stated that "the predicament defendant finds himself

in does not, strictly speaking, raise [an] ex post facto [issue]"

(emphasis added). Additionally, at the sentencing hearing, Silva

stated, "I'm not arguing that there's some kind of ex post facto

problem here that the court should sentence him under those [the

1999] Guidelines." These affirmations lead us to concur with the

Government that Silva waived his ex post facto claim. See Olano,

507 U.S. at 733.

11
Silva also claims that his conviction for aggravated
identity theft, 18 U.S.C. § 1028A ("§ 1028A"), creates an ex post
facto violation because the statute was not effective until July
15, 2004. However, Silva's conduct on November 29, 2004, and
January 2, 2005, provided the basis for this conviction, and
therefore, his argument is meritless.

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 And even under a plain error review, United States v.

Cruz-Rodriguez, 541 F.3d 19, 31-32 (1st Cir. 2008), Silva's

argument fails. Generally, "[t]he court shall use the Guidelines

Manual in effect on the date that the defendant is sentenced."

U.S.S.G. § 1B1.11(a). However, if the use of that guideline

results in a higher sentence than the guideline in existence at the

time of the conduct, it raises ex post facto concerns. United

States v. Hartunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990)

(employing guidelines in effect at time of offense). We look to

the date of the last charged offense and the then-existing

guidelines to determine whether an ex post facto issue exists.

United States v. Cruzado-Laureano, 404 F.3d 470, 488 (1st Cir.

2005); U.S.S.G. § 1B1.11 cmt. 2 ("[T]he last date of the offense of

conviction is the controlling date for ex post facto purposes.").

Thus, the correct comparison is between the 2006 Guidelines, which

the district court employed, and the 2004 Guidelines, in effect on

the date that Silva's last offense of conviction was completed.

The 1999 guidelines are inapplicable. See Cruzado-Laureano, 404

F.3d at 488 ("[I]t will not be necessary to compare more than two

manuals to determine the applicable guideline range -- the manual

in effect at the time the last offense of conviction was completed

and the manual in effect at the time of sentencing."). Our

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analysis of the 2004 and 2006 Guidelines reveals no relevant

differences that would affect Silva's sentence.12

Finally, citing Apprendi v. New Jersey, 530 U.S. 466

(2000), Silva asserts the jury should have found beyond a

reasonable doubt the amount of loss attributable to him because the

lower court's loss calculation resulted in a six-level enhancement

to his BOL for the 2000 conduct. But in his sentencing memoranda

and at the sentencing hearing, Silva admitted that the street value

of the drugs was $35,520. Indeed, in his brief to this Court,

Silva recognizes "[t]he defendant and the government agreed that

the loss was estimated to be between [$]30,000 and $70,000, and

felt they did not need a hearing to establish the loss." We

therefore find that Silva affirmatively waived this claim.

Further, Silva was sentenced to 81 months, at the low end

of the guideline range and well below the statutory maximum of

twenty years, rendering Apprendi inapplicable. See U.S. v.

Randall, 287 F.3d 27, 28-29 (1st Cir. 2002) ("Apprendi does not

apply to guideline findings . . . that increase the defendant's

sentence, but do not elevate the sentence to a point beyond the

lowest applicable statutory maximum that is subject to factfinding

by a jury according to a reasonable doubt standard.") (internal

quotations and citation omitted).

12
The 2006 Guidelines add the offense of damaging a veteran's
memorial and provide a definition for firearm.

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 VI. Silva's Pro Se Arguments

Silva raises three additional claims in his pro se brief

-- his trial counsel was ineffective in counseling Silva to sign

statute of limitation waivers; a stipulation of the parties and the

jury instruction related to that stipulation contained errors; and

Silva received inadequate notice regarding his co-defendant's plea

colloquy.

First, Silva argues that the seventeen counts stemming

from his 2000 conduct are untimely and that his trial counsel was

constitutionally ineffective by failing to assert a statute of

limitations defense and by counseling Silva to sign statute of

limitations waivers. Silva never objected to the timeliness of the

indictment or quality of his representation before, during, or

after his trial. Therefore, this Court reviews for plain error.

United States v. Jimenez, 512 F.3d 1, 3 (1st Cir. 2007).

It is a highly unusual case when we decide questions of

inefficient assistance of counsel on direct appeal as there are

often factual issues that need to be determined in the first

instance. See United States v. Muriel-Cruz, 412 F.3d 9, 12 (1st

Cir. 2005) ("Absent extraordinary circumstances . . . we consult

only the record extant at the time the district court rendered its

decision.") (citation omitted). Where an attorney "fails to raise

an important, obvious defense without any imaginable strategic or

tactical reason for the omission, his performance falls below the

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standard of proficient representation that the Constitution

demands." Prou v. United States, 199 F.3d 37, 48 (1st Cir. 1999)

(citations omitted). It is impossible for us to make such a

finding here, lacking evidence about the waivers,13 the

conversations between Silva and his attorney, and the attorney's

reasoning for advising Silva to sign the waivers. Silva explains

that the waivers were signed during negotiations that occurred

concurrent to a grand jury investigation, suggesting there may have

been a tactical reason for the attorney to encourage them. In any

event, if Silva wishes to raise these claims, he must do so on

collateral review. See United States v. Mala, 7 F.3d 1058, 1063

(1st Cir. 1993) (appellant generally cannot raise fact-specific

claims of ineffective assistance on direct review of criminal

conviction).

Next, Silva asserts that a stipulation of the parties

contained an error and that the district court later improperly

instructed the jury on materiality. At trial, the parties

stipulated that "[a] forged prescription contains a material

misstatement for purposes of 18 U.S.C. § 1001 [("§ 1001")], whether

it is in the form of a false date, false address or forged doctor's

13
The waiver signed by Silva on May 13, 2005, which he
references, and any waivers signed during the pre-indictment period
were not contained in the district court record.

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signature." Silva has waived his objection to the stipulation14

because "a stipulation as to facts also functions as a waiver of

legal defenses to the establishment of the particular element to

which the parties have stipulated" and therefore is not reviewable

on appeal. United States v. Meade, 175 F.3d 215, 223 (1st Cir.

1999). Meanwhile, because Silva did not object to the court's

materiality instruction, we review for plain error. United States

v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). The court instructed

the jury on the essential elements of a § 1001 violation, see

United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006), and

previously had instructed the jury on "material," "material

misrepresentation," and "material fact" in instructions for other

crimes. We find no error, and certainly not plain error, in these

proceedings.

Third, and finally, Silva takes issue with the district

court's alleged failure to give advance warning of its intent to

rely on evidence contained in Silva's co-defendant wife's plea

colloquy to apply a two-level leadership rule adjustment pursuant

14
Silva argues a forged prescription containing a forged
doctor's signature cannot form the predicate for a conviction under
§ 1028A because a doctor's name is excluded as a "means of
identification." § 1028A criminalizes the knowing transfer,
possession, or use of "a means of identification of another
person." Id. at § 1028A(a)(1). For the purposes of § 1028A, 18
U.S.C. § 1028(d)(7)(A) defines a "means of identification” as “any
name or number that may be used, alone or in conjunction with any
other information, to identify a specific individual, including any
. . . name." Thus, in addition to being waived, Silva's contention
runs afoul of the plain language of the statute.

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to U.S.S.G. § 3B1.1(c). The Government referred to the colloquy in

its sentencing memorandum and attached the transcript. At

sentencing, the court announced its intention to rely on the

colloquy for imposing the role enhancement but first offered Silva

the opportunity to continue the hearing to call his wife as a

witness; Silva declined. Regardless of our standard of review,15

no due process violation occurred. Silva was alerted to the

Government's use of his wife's testimony in its sentencing

memorandum, and the district court offered him the time and

opportunity to cross-examine her.

VII. Conclusion

For the foregoing reasons, we affirm Silva's conviction

and sentence in all respects.

15
Silva claims he preserved this issue by objecting at the
sentencing hearing while the Government argues his failure to
continue the case and call his wife constitutes a forfeiture.

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