United States v. Islas , 279 F. App'x 169 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-30-2008
USA v. Islas
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3214
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3214
UNITED STATES OF AMERICA
v.
ERIK ISLAS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 01-cr-0217-2
(Honorable Clarence C. Newcomer)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 17, 2008
Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.
(Filed: May 30, 2008 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
Erik Islas appeals his criminal sentence. We will affirm.
On February 13, 2001, Islas was arrested while transporting approximately 370
pounds of marijuana, one of several deliveries in a conspiracy to transport marijuana from
Arizona to Philadelphia. A uniformed police officer in a marked car drove in front of
Islas and signaled him to pull over. Instead, Islas drove his vehicle into the police car
several times, and then struck a police car that had pulled in behind him. Islas then drove
into a business park, ran through a fence, and mired the vehicle in an embankment trying
to reach a major highway. Islas fled on foot, running across the highway in rush hour
traffic. After a struggle, Islas was placed under arrest.
Islas waived his Miranda rights and gave a written statement in which he admitted
to delivering the marijuana found in his vehicle as well as overseeing and making other
deliveries. Islas made multiple drug deliveries, recruited others to join the conspiracy,
and directed the repackaging and weighing of the drugs. At his suppression hearing Islas
entered into a plea agreement with the Government, pleading guilty to conspiracy to
distribute marijuana (21 U.S.C. § 846) and possession with intent to distribute more than
100 kilograms of marijuana (21 U.S.C. § 841(a)(1)). The Presentence Report calculated a
base offense level of 28 with a three-level enhancement under U.S.S.G. § 3B1.1(b) for
supervising criminal activity involving at least five participants, a two-level enhancement
under U.S.S.G. § 3C1.2 for reckless endangerment during flight, and a two-level
reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. The total offense
level was 31. With an offense level of 31 and a criminal history category of VI, the
recommended guideline range was 188 to 235 months. The District Court imposed a
sentence of 225 months’ incarceration.
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On appeal, Islas contends the District Court erroneously (1) refused his request to
present evidence at the sentencing hearing, (2) applied the wrong burden of proof for the
sentencing enhancements, (3) violated his right to have non-disparate sentencing
treatment in relation to his co-defendants, and (4) wrongly calculated his criminal history.
Turning to the first issue, we review for abuse of discretion. At the suppression
hearing, the Government’s witnesses included Islas’s co-conspirators. Defense counsel
cross-examined these witnesses and presented rebuttal witnesses. At sentencing, Islas
sought to re-cross his co-conspirators in order to prove the Government suborned perjury.
But the District Court ruled this evidence irrelevant to sentencing because guilt had
already been admitted. The District Court did not abuse its discretion and relied on a
sufficient factual basis to impose sentence.
Second, Islas contends the sentencing guideline enhancements must be proved
beyond a reasonable doubt. This is incorrect. We exercise plenary review. A
preponderance standard applies to all factual findings relevant to sentencing, including
those supporting the underlying enhancements. United States v. Grier, 475 F.3d 556, 568
(3d Cir. 2007) (en banc).
Third, Islas contends his sentence was grossly disparate from that of his co-
conspirators. 18 U.S.C. § 3553(a)(6) instructs a district court “to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct.” Islas received a greater sentence than his co-conspirators, but for valid
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reasons. Islas performed a supervisory role in the conspiracy, fled from apprehension,
and recklessly endangered others during his flight. Additionally, 18 U.S.C. § 3553(a)
does not bar sentence disparity among co-defendants as long as the factors considered are
consistent with the subsection. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).
The sentence imposed was reasonable.
Finally, Islas contends the District Court wrongly calculated his criminal history,
failing to consider information provided in a pro-se response to the Presentence Report.
In his pro-se response, Islas offered additional information surrounding his convictions
and prior plea agreements. But this information was not relevant to the criminal history
calculation. Two additional points were added to his criminal history because Islas had
been on parole when arrested. Records from the Arizona Department of Corrections
establish his parole terminated on January 17, 2001; Islas admitted to engaging in the
criminal activity prior to that termination. Islas also pointed to notations in the
Presentence Report of arrests that did not result in conviction. But these were not used in
calculating his criminal history. The District Court correctly calculated his criminal
history.
For the foregoing reasons, we will affirm the judgment of the District Court.
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