UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4450
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL CLAUDIO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:09-cr-00057-FL-1)
Submitted: August 24, 2011 Decided: September 26, 2011
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deborrah Lynn Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Claudio (hereinafter “the Appellant”) appeals his
conviction and 105-month sentence for one count of possession of
a firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006). He raises five claims of error on
appeal: (1) that the district court erred in denying his motion
to reconsider the grant of the Government’s motion to quash
production of Maria Claudio’s Alien File (“A-File”); (2) that
the district court erred in denying the Appellant’s motion to
exclude evidence that he raped, assaulted, and intimidated his
wife with a handgun; (3) that the court erred in imposing a two-
level enhancement to his offense level; (4) that the court erred
in upwardly departing from his advisory Guidelines range; and
(5) that he received constitutionally ineffective assistance of
counsel. We affirm.
I. Production of Maria Claudio’s A-File
In ex parte proceedings, the Appellant sought his ex-
wife’s A-File, maintained by the Department of Homeland Security
(“DHS”). While the district court ordered production, the court
indicated that production might be delayed and that the court
would need to review the materials in camera. Nevertheless, the
Appellant did not request a continuance.
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By the time Maria Claudio was to testify, DHS had not
yet produced the A-File. The court concluded, however, that
cross-examining Maria Claudio based on the materials the
Appellant believed to be in the A-File would not be appropriate
because the evidence was cumulative and would confuse the jury.
To the extent that this claim on appeal is a challenge
to the court’s inability to cause the production of the A-File
before trial, the claim is waived. See David v. City of Los
Angeles, 307 F.3d 1143, 1147 (9th Cir. 2002) (waiver of right to
cross-examine when plaintiff elected to continue the hearing and
not ask for a continuance when police officer did not appear).
To the extent that the Appellant claims error in the
court’s evidentiary ruling regarding the scope of cross-
examination, we do not agree. We review the district court’s
limitations on the defendant’s cross-examination of government
witnesses for abuse of discretion. United States v. Smith, 451
F.3d 209, 220 (4th Cir. 2006). Here, the information that the
Appellant sought to use on cross-examination was related to
Maria Claudio’s immigration status and her prior Violence
Against Women Act (“VAWA”) petitions. The gravamen of the
Appellant’s claim was that Maria Claudio was biased, planted
evidence, and falsely claimed to have been abused in order to
secure citizenship. The Appellant, however, was able to cross-
examine Maria Claudio on all of these points, and we therefore
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conclude that the court did not abuse its discretion in limiting
the scope of the Appellant’s cross to prevent cumulative and
confusing evidence from coming before the jury.
II. Denial of Motion to Exclude Certain Evidence
Next, the Appellant contends that the district court
should have excluded evidence that the Appellant assaulted and
raped Maria Claudio the day before she called police and
firearms were discovered in their home, and evidence that the
Appellant frequently intimidated Maria Claudio by pointing a 9-
millimeter handgun at her and cocking it in the days before
police discovered guns in the home. We review a district
court’s evidentiary rulings for abuse of discretion. United
States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009).
Federal Rule of Evidence 403 provides that “relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.” The damage that
probative evidence can inflict on a defendant’s case is no basis
for excluding the evidence, however; only when that evidence
results in unfair prejudice, such as an appeal to the jury’s
emotion, and that prejudice “substantially outweighs the
probative value of the evidence,” must it be excluded. United
States v. Basham, 561 F.3d 302, 327 (4th Cir.), cert denied, 130
S. Ct. 3353 (2010). Where the jury is given a limiting
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instruction, any fear that the jury will improperly use the
evidence subsides.
Here, we conclude that this claim lacks merit. The
challenged evidence was highly relevant to the offense charged,
namely, possession of a firearm. Moreover, the evidence
provided context to the jury regarding the reason why Maria
Claudio called police, and helped to rebut the defense’s theory
that Maria Claudio planted incriminating evidence. Moreover,
the district court gave the jury a curative instruction.
III. Obstruction Enhancement
The Appellant, whose base offense level was twenty
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A)
(2009), received a four-level enhancement pursuant to USSG
§ 2K2.1(b)(1)(B) for possessing between eight and twenty-four
firearms, and a two-level obstruction of justice enhancement
pursuant to USSG § 3C1.1 for allegedly perjuring himself during
state court proceedings related to his unlawful possession of a
firearm. Appellant objects to the obstruction enhancement.
According 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
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instant offense of conviction, and . . . the obstructive conduct
related to (i) the defendant’s offense of conviction; or (ii) a
closely related offense[.]” USSG § 3C1.1. The application
notes for § 3C1.1 specifically include the commission of perjury
by a defendant as grounds for the enhancement. USSG § 3C1.1
cmt. n.4(b).
Here, the district court had ample evidence before it
that the Appellant perjured himself in a related state court
proceeding. The Appellant testified in that proceeding that he
did not know there were guns in his home and that the guns all
belonged to his brother. These statements flatly contradict
testimony adduced at trial on the Appellant’s federal charge
that the district court credited. The perjury in state court
was related to this case because it took place while the federal
investigation was ongoing and was related to the same offense
conduct. Thus, we conclude that the enhancement was
appropriate.
IV. Upward Departure
The Appellant next claims error in the district
court’s conclusion that the Appellant’s criminal history
category of III significantly underrepresented the seriousness
of his criminal history and its decision to upwardly depart to a
Guidelines range derived from a criminal history category of IV.
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When the district court imposes a departure sentence, we
consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007).
Under USSG § 4A1.3(a)(1), the district court may
upwardly depart from the Guidelines range if the court
determines that “the defendant’s criminal history category
substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the
defendant will commit other crimes[.]”
The district court did not err by departing upwardly.
The court noted that state rape and kidnapping charges were
still pending against the Appellant at the time of sentencing,
and thus were not properly accounted for in the presentence
investigation report. Moreover, the court indicated that the
Appellant has been prone to violence, that he frequently
intimidated his wife by cocking a handgun behind her head, and
noted that testimony indicated that he had shot one of his
children with pellets. The court also noted the Appellant’s
prior convictions for extortion, resisting a public officer,
assault on a female, and discharging a weapon into an occupied
property. Under these circumstances, it was well within the
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court’s discretion to conclude that a criminal history category
of III significantly underrepresented the seriousness of the
Appellant’s criminal history.
V. Ineffective Assistance of Counsel
The Appellant finally claims that he received
ineffective assistance of counsel at trial because his attorney
failed to investigate or present evidence that he suffers from
mental health problems and a brain deformity.
Claims of ineffective assistance of counsel are
generally not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir. 2008). To allow for adequate
development of the record, ineffective assistance claims should
be pursued in a motion filed pursuant to 28 U.S.C.A. § 2255
(West Supp. 2011). United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010). Because the record before the court does
not conclusively establish ineffective assistance of counsel, we
decline to entertain this claim on direct appeal.
We therefore affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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