Cruz-Quintanilla v. State

Oscar Cruz-Quintanilla v. State of Maryland, No. 44, September Term, 2016. Opinion by
Barbera, C.J.

CRIMINAL LAW — SENTENCING DETERMINATION — EVIDENCE — Trial
court did not abuse its discretion by permitting testimony at the sentencing hearing
regarding defendant’s gang membership, where, unlike in Dawson v. Delaware, 503 U.S.
159 (1992), the evidence established that all MS-13 members are aware of, and required to
participate in, the criminal acts of violence of the gang.
Circuit Court for Prince George’s County
Case No. CT131649B
Argued: February 3, 2017

IN THE COURT OF APPEALS
OF MARYLAND

No. 44

September Term, 2016

OSCAR CRUZ-QUINTANILLA

v.

STATE OF MARYLAND

Barbera, C.J.,
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.

Opinion by Barbera, C.J.

Filed: July 31, 2017
 We consider in this case whether evidence of a convicted defendant’s membership

in a gang is admissible at sentencing, where the gang membership is unrelated to the

underlying criminal conviction but the evidence establishes that all gang members are

aware of, and required to participate in, the criminal acts of violence of the gang. For the

reasons that follow, we answer that question in the affirmative.

I

The trial, sentencing, and appeal

Petitioner Oscar Cruz-Quintanilla was indicted in the Circuit Court for Prince

George’s County on numerous charges in connection with the robbery of the home of

Adolfo Sical-Rosales and his wife, Rosa Murillo-Aguilar, on July 26, 2013. Following a

jury trial, he was convicted of reckless endangerment; wearing, carrying, or transporting a

handgun; and conspiracy to commit robbery with a dangerous weapon. For purposes of

this opinion, there is no need to summarize all of what occurred at trial. Relevant to this

appeal is what occurred at sentencing.

At sentencing, the State sought to introduce for the first time evidence that Cruz-

Quintanilla was a member of the gang known as MS-13. Over defense counsel’s

objections, the court permitted Sergeant George Norris of the Prince George’s County

Police Department to testify regarding Cruz-Quintanilla’s MS-13 membership.

Sergeant Norris testified that various tattoos on Cruz-Quintanilla’s body, shown in

photographs admitted into evidence, indicate that he is a member of MS-13. According to

police records of the Sergeant’s encounters with MS-13 members and Cruz-Quintanilla

specifically, Cruz-Quintanilla has been a documented MS-13 member since at least 2004.
Sergeant Norris further testified that “[o]ne of the common mottos” for MS-13 is “mata,

m-a-t-a, vola, v-o-l-a, controla, c-o-n-t-r-o-l-a, which is kill, rape, and control.” Any MS-

13 member would “have to know that MS-13 engages in violence because the mere

initiation of MS-13 involves violence. It involves you getting beaten by your own MS-13

member friends.” Sergeant Norris stated that “there are several actions that you have to

take prior to being jumped in [i.e., initiated], which is putting in work for the gang or

committing crimes for the gang to show that you are loyal to the gang and show that they

can trust you, that you’re going to support the gang.” Sergeant Norris added that one cannot

be a member of MS-13 and decline to participate in violence. Any MS-13 member who

declines to participate in the gang’s criminal acts of violence is subject to discipline by

other gang members.

The State argued for the imposition of a total sentence of 26 years. The State based

its recommendation on the evidence of Cruz-Quintanilla’s MS-13 gang membership since

2004, the nature of the crimes of which he was convicted, and his prior record.1 The court,

noting that it had considered “[a]ll of the evidence” in the case, sentenced Cruz-Quintanilla

to terms of three years of imprisonment on the weapon and reckless endangerment

convictions, to be served concurrently. For the conspiracy to commit armed robbery

conviction, the court sentenced Cruz-Quintanilla to 20 years of imprisonment, with all but

1
The State noted that Cruz-Quintanilla’s prior record included a probation before
judgment in 2006, a conviction for burglary in the fourth degree and harassment in 2006,
and a “guilty” for driving without a commercial driver’s license in 2011.

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nine years suspended, to run consecutive to the two other sentences. Upon Cruz-

Quintanilla’s release, he must serve a period of probation of five years.2

On appeal, Cruz-Quintanilla asserted, among other arguments, that the circuit court

erred in admitting evidence of his gang membership at sentencing. The Court of Special

Appeals affirmed the judgment of the circuit court. Cruz-Quintanilla v. State, 228 Md.

App. 64, 71-72 (2016). Emphasizing “‘that a sentencing court is vested with virtually

boundless discretion’ in imposing a sentence,” the intermediate appellate court concluded

that “it was properly within the discretion of the sentencing court to consider evidence

regarding the nature and activities of MS-13 as it pertained to the court’s consideration of

[Cruz-Quintanilla’s] character.” Id. at 68, 70 (citation omitted). The Court of Special

Appeals recognized that, although in some instances admission of evidence regarding

beliefs or memberships protected by the First Amendment is prohibited during sentencing,

“that evidence may be admissible in appropriate cases in which evidence of criminal or

violent conduct of the gang is introduced.” Id. at 69 (citing Dawson v. Delaware, 503 U.S.

159, 165-66 (1992)). Because Sergeant Norris’s testimony established that Cruz-

Quintanilla endorsed not only the beliefs of MS-13, but also its criminal activities, that

evidence was properly admitted. Id.

We granted Cruz-Quintanilla’s petition for writ of certiorari to answer “[w]hether

trial courts may admit gang membership evidence in a sentencing hearing when the gang

2
The court included among the probation conditions that Cruz-Quintanilla “not be
involved in any gang activity or be a member of any gang.” He does not contest that
condition on appeal.
3
membership is unrelated to the convictions and the defendant is not connected to any

criminal offenses on behalf of the gang.” Cruz-Quintanilla v. State, 450 Md. 101 (2016).

As noted at the outset of this opinion, the answer to that question is “yes.”

II

Discussion

A trial judge’s discretion during sentencing proceedings

This Court has long adhered to the general principle that the “sentencing judge is

vested with virtually boundless discretion” in devising an appropriate sentence. Smith v.

State, 308 Md. 162, 166 (1986) (citation omitted); see also Abdul-Maleek v. State, 426 Md.

59, 71 (2012); Jones v. State, 414 Md. 686, 693 (2010); Jennings v. State, 339 Md. 675,

683 (1995). The sentencing judge is afforded such discretion “to best accomplish the

objectives of sentencing—punishment, deterrence and rehabilitation.” Smith, 308 Md. at

166. To achieve those objectives, the sentencing judge is not constrained simply to “the

narrow issue of guilt.” Id. at 167 (citation omitted). Rather, “[h]ighly relevant—if not

essential—to [the judge’s] selection of an appropriate sentence is the possession of the

fullest information possible concerning the defendant’s life and characteristics.” Id.

(citation omitted). So it is that, in exercising that discretion, the sentencing judge may take

into account the defendant’s “reputation, prior offenses, health, habits, mental and moral

propensities, and social background.” Jackson v. State, 364 Md. 192, 199 (2001) (citation

omitted). “The consideration of a wide variety of information about a specific defendant

permits the sentencing judge to individualize the sentence to fit ‘the offender and not

merely the crime.’” Smith, 308 Md. at 167 (quoting Williams v. New York, 337 U.S. 241,

4
247 (1949)). Given the broad discretion accorded the sentencing judge, “generally, this

Court reviews for abuse of discretion a trial court’s decision as to a defendant’s sentence.”

Sharp v. State, 446 Md. 669, 685 (2016).

The sentencing judge’s discretion, although broad, is not without its limits. A given

sentence is subject to review on any of three potential grounds: “(1) whether the sentence

constitutes cruel and unusual punishment or violates other constitutional requirements; (2)

whether the sentencing judge was motivated by ill-will, prejudice or other impermissible

considerations; and (3) whether the sentence is within statutory limits.” Jackson, 364 Md.

at 200 (internal emphasis omitted) (quoting Gary v. State, 341 Md. 513, 516 (1996)). Cruz-

Quintanilla’s challenge to his sentence is based on the first of these grounds, as he argues

that the sentence violates the First Amendment to the United States Constitution because

it is based in part on the gang-related evidence.

Sentencing and the Constitution

The First Amendment to the Constitution, applicable to the states through the

Fourteenth Amendment, Schneider v. State, 308 U.S. 147, 160 (1939), provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government for a redress of grievances.”

Freedom of association is implicitly guaranteed by the First Amendment. Roberts v. U.S.

Jaycees, 468 U.S. 609, 618 (1984). The Supreme Court explained:

Our decisions have referred to constitutionally protected “freedom of
association” in two distinct senses. In one line of decisions, the Court has
concluded that choices to enter into and maintain certain intimate human

5
 relationships must be secured against undue intrusion by the State because
of the role of such relationships in safeguarding the individual freedom that
is central to our constitutional scheme. In this respect, freedom of association
receives protection as a fundamental element of personal liberty. In another
set of decisions, the Court has recognized a right to associate for the purpose
of engaging in those activities protected by the First Amendment—speech,
assembly, petition for the redress of grievances, and the exercise of religion.
The Constitution guarantees freedom of association of this kind as an
indispensable means of preserving other individual liberties.

Id. at 617-18.

“[T]he nature and degree of constitutional protection afforded freedom of

association may vary depending on the extent to which one or the other aspect of the

constitutionally protected liberty is at stake in a given case.” Id. at 618. Indeed, despite

First Amendment protection afforded to beliefs, memberships, and other affiliations, such

protection is by no means absolute. For instance, “freedom of association may be restricted

if reasonably necessary to accomplish the essential needs of the state and public order.”

Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974).

Pertinent to our discussion here, the Supreme Court has addressed the bounds of

First Amendment protections at the sentencing phase of a criminal prosecution. In Barclay

v. Florida, 463 U.S. 939, 949 (1983) (plurality opinion), the plurality concluded that the

“United States Constitution does not prohibit a trial judge from taking into account the

elements of racial hatred in this murder” during sentencing, where the defendant’s “desire

to start a race war [was] relevant to several statutory aggravating factors.” See also

Wisconsin v. Mitchell, 508 U.S. 476, 479 (1993) (considering the constitutionality of a state

statute enhancing the maximum penalty for an offense if the defendant intentionally selects

a victim based on the victim’s race).

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 The Supreme Court also addressed First Amendment sentencing implications in

Dawson, 503 U.S. at 159, a decision that plays a central role in both parties’ arguments in

the present case. The sentencing evidence at issue in Dawson, much like the evidence in

this case, addressed the defendant’s membership in an organized gang. Also like the

evidence offered at sentencing in the present case, the gang-related evidence offered by the

prosecution at sentencing did not relate to the crime of which Dawson was convicted. But,

as we shall see, the similarities in Dawson and the case before us essentially end there.

Dawson and its progeny

Dawson was charged and convicted of first degree murder and related crimes

committed during his escape from prison, and the State sought the death penalty. Id. at

160-61. Before the sentencing proceeding, the parties agreed to a stipulation pertaining to

Dawson’s membership in the Aryan Brotherhood. The stipulation was limited to the

following:

The Aryan Brotherhood refers to a white racist prison gang that began in the
1960’s in California in response to other gangs of racial minorities. Separate
gangs calling themselves the Aryan Brotherhood now exist in many state
prisons including Delaware.

Id. at 162. The stipulation was read to the jury together with evidence of Dawson’s tattoo

of the words “Aryan Brotherhood” on his hand and evidence that Dawson used the name

“Abaddon,” and had a tattoo of the name “Abaddon” on his stomach. Id. at 161-62.

Abaddon means “one of Satan’s disciples.” Id. at 161. Although Dawson agreed to the

admission of the stipulation into evidence, he continued to assert that the admission

violated the First and Fourteenth Amendments to the Constitution. Id. at 162. The jury

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elected to have Dawson sentenced to death. Id. at 163. The Supreme Court of Delaware

affirmed the convictions and the death sentence. That court held that the evidence related

to the Aryan Brotherhood did not violate Dawson’s constitutional rights because the

stipulation pertained to Dawson’s character, and not his race, religion, or political

affiliation. Id.

The United States Supreme Court granted certiorari and reversed the judgment of

the state supreme court. Id. Dawson argued before the Supreme Court that the Constitution

prohibits during sentencing the admission of evidence concerning any beliefs or activities

protected under the First Amendment. Id. at 164. The Court noted at the outset of its

discussion that “the Constitution does not erect a per se barrier to the admission of evidence

concerning one’s beliefs and associations at sentencing simply because those beliefs and

associations are protected by the First Amendment.” Id. at 165. This pronouncement was

consistent with the Court’s decision, eight years earlier, in United States v. Abel, 469 U.S.

45 (1984). The Dawson Court noted in its holding in Abel that the Government could

impeach a witness for the defense with evidence that the witness and the defendant were

members of the Aryan Brotherhood and that the members were required to lie on behalf of

one another. Dawson, 503 U.S. at 164. The Court added: “Though Abel did not involve

a . . . sentencing proceeding, its logic is perfectly applicable to such a proceeding.”

Dawson, 503 U.S. at 165.

The Supreme Court ultimately determined that the stipulation should not have been

admitted in Dawson’s case because “the prosecution did not prove that the Aryan

Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts,”

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and therefore the “narrowness of the stipulation left the Aryan Brotherhood evidence

totally without relevance to Dawson’s sentencing proceeding.” Id. at 165-66. Instead, the

stipulation focused solely on Dawson’s abstract beliefs. Id. Important to the present case,

the Dawson Court observed:

Before the penalty hearing, the prosecution claimed that its expert witness
would show that the Aryan Brotherhood is a white racist prison gang that is
associated with drugs and violent escape attempts at prisons, and that
advocates the murder of fellow inmates. If credible and otherwise admissible
evidence to that effect had been presented, we would have a much different
case.

Id. at 165 (emphasis added). “Because Delaware failed to do more” than offer the bare

stipulation that Dawson was a member of the Aryan Brotherhood, the Court concluded that

the stipulation, standing alone, was not properly admitted as relevant character evidence.

Id. at 167. However, the Dawson Court did not limit its opinion to that holding.

Particularly instructive here, the Supreme Court also offered guidance for future

cases, where more than the bare stipulation offered in Dawson’s case is presented:

In many cases, for example, associational evidence might serve a legitimate
purpose in showing that a defendant represents a future danger to society. A
defendant’s membership in an organization that endorses the killing of any
identifiable group, for example, might be relevant to a jury’s inquiry into
whether the defendant will be dangerous in the future.

Id. at 166 (emphasis added). The thrust of the Court’s commentary in Dawson is clear—

evidence of a defendant’s membership or association in an organized gang is relevant and

admissible during sentencing if the State establishes that the gang’s purposes and objectives

are criminal in nature.

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 Were there any doubt as to the scope of the holding in Dawson, the cases decided

since that opinion reaffirm that a sentencing court may consider a defendant’s gang

membership as relevant to the imposition of a proper sentence, so long as the evidence

presented goes beyond the abstract beliefs of the gang. United States v. Hernandez-

Villanueva, 473 F.3d 118 (4th Cir. 2007), provides one example.

The defendant, Hernandez-Villanueva, was convicted of unauthorized reentry into

the United States. Id. at 123. During sentencing, the prosecution requested a sentence

higher than that called for in the Sentencing Guidelines, citing Hernandez-Villanueva’s

MS-13 membership. Id. at 120. Sergeant Norris (the expert who testified in the case at

bar) testified that, based on several factors, Hernandez-Villanueva remained a member of

the gang as of the time of sentencing. Id. Sergeant Norris also testified about the history

and practices of MS-13. He explained in part that:

Some of the money paid in dues is remitted to MS-13; other money is used
by the local gang for a variety of legal and illegal activities. In a nutshell,
like most other street gangs, the basic purpose of MS-13 and each of its local
gangs is “to control the streets, to be the number one gang.” This purpose is
achieved “through intimidation, fear, and violence.”

Id.

The trial judge sentenced Hernandez-Villanueva to eighteen months imprisonment,

exceeding the sentencing guidelines’ recommended sentence of zero to six months. Id.

The United States Court of Appeals for the Fourth Circuit upheld the sentence, concluding

that the evidence regarding the MS-13 membership called for a higher sentence than in the

guidelines, due in part to the violent nature of the gang. Id. at 123. The Fourth Circuit

distinguished Sergeant Norris’s testimony from the stipulation in Dawson and

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“conclude[d] that all of th[o]se considerations support[ed] the decision of the court to

impose a sentence above the advisory sentencing range and that any associational rights

enjoyed by Villanueva were not violated.” Hernandez-Villanueva, 473 F.3d at 123.

Other post-Dawson cases are to like effect. See, e.g., Mitchell, 508 U.S. at 485-86,

490 (holding that a Wisconsin statute authorizing an enhanced sentence when a defendant

intentionally selects a victim based on the victim’s race does not violate free speech rights

by purporting to punish the defendant’s biased beliefs); Schneider v. McDaniel, 674 F.3d

1144, 1150 (9th Cir. 2012) (concluding that evidence of a defendant’s membership in the

Aryan Brotherhood was properly admitted during sentencing and stating that, “[i]n

Dawson, the Supreme Court expressly recognized that the case would be different if the

evidence proved something more than Dawson’s abstract beliefs”); Kapadia v. Tally, 229

F.3d 641, 648 (7th Cir. 2000) (“Nothing in the Constitution prevents the sentencing court

from factoring a defendant’s statements [regarding his beliefs] into sentencing when those

statements are relevant to the crime or to legitimate sentencing considerations.”) (emphasis

added); People v. Coleman, 633 N.E.2d 654, 673 (Ill. 1994) (“[U]nlike in Dawson, the

evidence of defendant’s gang affiliation was properly admitted here to show his behavior,

violations, and discipline in prison. The information was not admitted for the sole purpose

of showing defendant’s abstract beliefs.”); State v. Cooks, 720 So.2d 637, 650 (La. 1998)

(“[T]he prosecution in the instant case escaped the trap illustrated in Dawson by

introducing strong evidence to establish a relevant link between the defendant’s character,

his sentencing, and evidence of his gang involvement.” (internal emphasis omitted)).

III

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 The present case

Cruz-Quintanilla contends, as he did before the Court of Special Appeals, that the

First Amendment prohibits the circuit court from fashioning a sentence that at least in part

was based on evidence of his membership in MS-13. Relying in large part upon Dawson,

he argues that mere membership in a criminal gang is insufficient; there must be evidence

of the defendant’s personal connection to the criminal gang activity.

The State counters that “Dawson expressly sanctions the evidence presented in this

case.” The State emphasizes that the admissibility at sentencing of a defendant’s gang

membership does not turn on whether the government presents direct evidence of the

defendant’s past, present, or future commission of criminal acts on behalf of the gang.

Rather, the State asserts, the proper inquiry is whether the evidence presented establishes

the criminal nature of the gang.

The parties do not dispute that Cruz-Quintanilla’s membership in MS-13 is subject

to First Amendment protection. But, such protection is not absolute and does not render

inadmissible any and all evidence relating to the gang. See Dawson, 503 U.S. at 165. As

we shall explain, unlike the stipulation in Dawson, the evidence presented in this case

provided sufficient and pertinent detail to render the evidence admissible during the

sentencing hearing.

Cruz-Quintanilla leads with the contention that, because there is no direct evidence

that he has performed or will perform criminal acts on behalf of the gang, his membership

is not relevant to his character or his potential to be a future danger. We disagree. The

evidence offered by the State at sentencing establishes that all MS-13 members must

12
commit a crime as part of “jumping-in”; they must engage in violent and criminal acts

thereafter; and, if they do not, they are subject to punishment. The Dawson Court made

clear that such evidence is admissible, even without direct evidence that the defendant

engaged in such activity. See Dawson, 503 U.S. at 166 (observing that evidence of the

Aryan Brotherhood’s commission of any unlawful or violent acts, or even endorsement of

such acts—as opposed to evidence of Dawson’s individual criminal acts on behalf of the

gang—would have been sufficient to be admitted during sentencing).

In furtherance of his argument that the evidence presented at sentencing did not

demonstrate his personal connection to gang-related criminal activity, Cruz-Quintanilla

asks us to adopt the three-part test from the United States Court of Appeals for the District

of Columbia Circuit in United States v. Lemon, 723 F.2d 922 (D.C. Cir. 1983). That test,

Cruz-Quintanilla asserts, requires that the evidence establish (1) the defendant’s gang

membership; (2) that the gang has illegal goals; and (3) a direct link between the defendant

and the gang’s illegal activity. See id. at 941-42. We reject the argument, for two reasons.

First, Lemon preceded by almost nine years the Supreme Court’s decision in

Dawson, and the Dawson Court did not discuss Lemon or even impliedly endorse the D.C.

Circuit’s analysis of the First Amendment issue presented there. Second, Lemon is far

different from the case at bar. Lemon involved a defendant who, according to the

prosecution, was a member of the Black Hebrews—a religious organization with alleged

criminal goals. See id. at 925, 940. The D.C. Circuit assumed, for purposes of its analysis,

Lemon’s assertion that the group engaged in “legitimate” religious activities. Id. at 936-

38. Based on the assumption that the Black Hebrews “embraces both illegal and legal

13
aims,” the federal appeals court determined that “there must be sufficiently reliable

evidence of the defendant’s connection to illegal activity within the Black Hebrews to

insure that he is not being given a harsher sentence for mere association with the group and

its legitimate aims and activities.” Id. at 939-40 (emphasis added).

Unlike in Lemon and fully in keeping with the principles set forth by the Supreme

Court in Dawson, the only evidence offered at Cruz-Quintanilla’s sentencing hearing

established that MS-13’s objectives, well known to its members, are to “kill, rape, and

control”; to become a member, one must commit a crime; and all members of the gang

know that they are expected to “participate in violence” or be subject to discipline by other

gang members. Because MS-13 has not been shown to be a religious or political

organization with both illegal and legal aims, the evidence of the criminal nature of the

gang alone was sufficient for sentencing purposes. Cruz-Quintanilla is not being punished

for mere association with a group and its legitimate aims and activities.

In short, unlike in Dawson, the testimony in the present case went beyond any

abstract beliefs and established that all MS-13 gang members engage in “unlawful or

violent acts, or . . . endorse[] such acts.” See Dawson, 503 U.S. at 166. We therefore agree

with the Court of Special Appeals that, “the evidence regarding MS-13 was not limited to

the constitutionally protected beliefs of the gang” and “[i]t would be reasonable to infer

from the evidence that as a documented member of MS-13, [Cruz-Quintanilla] endorses

not just MS-13’s beliefs, but also its criminal activities.” Cruz-Quintanilla, 228 Md. App.

at 69. The sentencing court did not err or abuse its discretion in admitting that evidence

and considering it in fashioning an appropriate sentence.

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 JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED;
COSTS TO BE PAID BY
PETITIONER.

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