United States v. Maldonado

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4549

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JOSE PEREZ MALDONADO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00125-WO-1)

Submitted: March 14, 2011 Decided: March 31, 2011

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bryan Gates, Jr., Winston-Salem, North Carolina, for Appellant.
John W. Stone, Jr., Acting United States Attorney, Terri-Lei
O’Malley, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jose Perez Maldonado appeals his 150-month sentence

imposed after pleading guilty to one count of distribution of

cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)

(2006), 18 U.S.C. § 2 (2006). We affirm.

Maldonado’s guilty plea arose out of his arrest after

he was captured trying to dispose of cocaine base in a sink

during the execution of a search warrant on the home of a co-

defendant. The presentence investigation report (“PSR”) issued

after the court accepted Maldonado’s guilty plea. The PSR

indicated that with an offense level of twenty-eight and a

criminal history category of III, Maldonado’s advisory

Guidelines range was 87 to 108 months. However, because

Maldonado was subject to a statutory mandatory minimum 120-month

sentence, his advisory Guidelines range became 120 months. See

21 U.S.C. § 841(b)(1)(A). Maldonado’s offense level reflected a

downward adjustment for acceptance of responsibility pursuant to

U.S. Sentencing Guidelines Manual § 3E1.1(a) (2009).

After pleading guilty, but before sentencing,

Maldonado filed a “Motion to Dismiss for Ineffective Assistance

of Counsel.” In the motion, Maldonado stated that his attorney

had not brought a translator to jailhouse visits, and he was

otherwise unable to communicate with his attorney. When

examined by the district court regarding these claims, Maldonado

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admitted that he could communicate with his attorney without a

translator, and that his attorney had brought a translator to at

least one of their meetings. Maldonado maintained, however,

that he never tried to dispose of cocaine base and that he

merely sold powder cocaine to another dealer. The court denied

Maldonado’s motion to dismiss the indictment, denied his motion

to withdraw his guilty plea, allowed Maldonado’s counsel to

withdraw, and appointed substitute counsel.

At sentencing, the district court heard testimony from

Detective Sergeant Tim Cameron, who allegedly encountered and

chased Maldonado and observed him attempting to dispose of

cocaine base, and from Maldonado himself. After hearing the

evidence, the court concluded that Maldonado had made false

representations to the court both regarding his “motion to

dismiss” and during his testimony at sentencing. Accordingly,

the court struck the two-level downward adjustment for

acceptance of responsibility and imposed a two-level enhancement

for obstructing justice. Maldonado’s revised offense level was

thirty-two, resulting in an advisory Guidelines range of 135 to

168 months. The court imposed a 150-month sentence. Maldonado

timely appealed.

On appeal, Maldonado argues that he should have

received the two-level adjustment for acceptance of

responsibility, and he should not have received a two-level

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enhancement for obstructing justice. He does not assign error

to his Fed R. Crim. P. 11 colloquy or to the district court’s

decision to deny his motion to the extent he sought dismissal of

his indictment or withdrawal of his guilty plea.

An appellate court reviews a sentence for

reasonableness under an abuse-of-discretion standard. Gall v.

United States, 552 U.S. 38, 51 (2007). This review requires

consideration of both the procedural and substantive

reasonableness of a sentence. Id. First, the court must assess

whether the district court properly calculated the Guidelines

range, considered the 18 U.S.C. § 3553(a) (2006) factors,

analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence. Id. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n

individualized explanation must accompany every sentence.”);

United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)

(same). An extensive explanation is not required as long as the

appellate court is satisfied “‘that [the district court] has

considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.’” United

States v. Engle, 592 F.3d 495, 500 (4th Cir) (quoting Rita v.

United States, 551 U.S. 338, 356 (2007)), cert. denied, 131 S.

Ct. 165 (2010).

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We review a district court’s decision to deny an

adjustment for acceptance of responsibility for clear error.

United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). We

“must give ‘great deference’ to the district court’s decision

because ‘[t]he sentencing judge is in a unique position to

evaluate a defendant’s acceptance of responsibility.’” Id.

(quoting USSG § 3E1.1 comment. (n.5)). “To earn the reduction,

a defendant must prove to the court by a preponderance of the

evidence ‘that he has clearly recognized and affirmatively

accepted personal responsibility for his criminal conduct.’”

Id. (quoting United States v. Nale, 101 F.3d 1000, 1005

(4th Cir. 1996)). False denials of relevant conduct can lead to

the loss of the adjustment for acceptance of responsibility.

USSG § 3E1.1 comment (n.1).

We have reviewed the record, and we conclude that the

district court did not err in striking the adjustment for

acceptance of responsibility. The court concluded that

Maldonado falsely denied relevant offense conduct and attempted

to mislead the court to escape the consequences of his guilty

plea. Accordingly, we decline to disturb the court’s judgment

in this regard.

We review for clear error a district court’s

determination that a defendant obstructed justice. United

States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). According

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to USSG § 3C1.1, a defendant’s base offense level is to be

increased two levels for obstruction of justice if –

the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction[.]

USSG § 3C1.1. The application notes for § 3C1.1 specifically

include perjury by the defendant and providing materially false

information to a judge or magistrate. USSG § 3C1.1 cmt. n.4(b),

(f). For purposes of § 3C1.1, the Supreme Court has defined

perjury as “false testimony concerning a material matter with

the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.” United

States v. Dunnigan, 507 U.S. 87, 94 (1993). Under Dunnigan, “it

is preferable for a district court to address each element of

the perjury in a separate and clear finding[,]” 507 U.S. at 95,

but it is sufficient if the district court makes a determination

“that encompasses all of the factual predicates for a finding of

perjury.” Id.

Once again, we have reviewed the record and decline to

disturb the district court’s judgment. The court made a

specific finding that Maldonado offered false testimony at

sentencing regarding his offense conduct. Because such a

finding is sufficient to warrant a USSG § 3C1.1 enhancement, we

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conclude the district court did not err in imposing the

enhancement.

Maldonado assigns no further error to his sentence,

and we accordingly affirm the district court’s judgment. We

dispense with oral argument because the facts and legal

conclusions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED