UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4549
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
2
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
3
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).
4
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
5
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
6
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
7