United States v. Daniel Lara ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL APARICIO LARA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:12-cr-00313-TDS-1)
Submitted: October 28, 2013 Decided: November 12, 2013
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Beth M. Farber, Harris O’Brien, New York, New York, for
Appellant. Ripley Rand, United States Attorney, Randall Galyon,
Assistant United States Attorney, Greensboro, North Carolina;
Mythili Raman, Acting Assistant Attorney General, Denis J.
McInerney, Acting Deputy Assistant Attorney General, James S.
Yoon, Hope S. Olds, Christina Giffin, Courtney B. Schaefer,
Christopher J. Smith, U.S. DEPARTMENT OF JUSTICE, Washington,
DC, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Aparicio Lara pled guilty to one count of
conspiracy to possess, produce, and transfer identification
documents, 18 U.S.C. § 1028(f), (b)(1) (2006) (Count One), and
one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1),
(c) (2006) (Count Thirty-Three). The probation officer
recommended, in pertinent part, a four-level enhancement under
U.S. Sentencing Guidelines Manual USSG § 3B1.1(a) (2012) on the
ground that Lara was a leader or organizer of a criminal
activity that involved five or more participants or was
otherwise extensive. The district court overruled Lara’s
objection to the four-level enhancement and ultimately sentenced
Lara within the Guidelines range to forty-two months on Count
One and a mandatory consecutive term of twenty-four months on
Count Thirty-Three.
On appeal, Lara’s sole challenge is to the four-level
leadership enhancement. We review sentences for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Miscalculation of the Guidelines range is a significant
procedural error. Id. A defendant qualifies for a four-level
adjustment if he “was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(a). The district court’s
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determination that a sentencing enhancement is warranted is a
factual determination reviewed for clear error. United States
v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011) (“Because the
district court’s findings as to whether Thorson was an organizer
or leader are factual in nature, we reverse only if the district
court’s findings are clearly erroneous.”); United States v.
Slade, 631 F.3d 185, 188 (4th Cir. 2011). Reversal for clear
error is warranted only where this court is left with the
“definite and firm conviction that a mistake has been
committed.” United States v. Harvey, 532 F.3d 326, 336-37
(4th Cir. 2008) (internal quotation marks omitted).
Factors distinguishing a leadership or organization
role from lesser roles include:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4; United States v. Cameron, 573 F.3d 179,
184 (4th Cir. 2009). The leadership enhancement “is appropriate
where the evidence demonstrates that the defendant controlled
the activities of other participants or exercised management
responsibility.” Slade, 631 F.3d at 190 (internal quotation
marks omitted). The facts establishing the enhancement must be
supported by a preponderance of the evidence. Harvey, 532 F.3d
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at 337. “Leadership over only one other participant is
sufficient as long as there is some control exercised.” United
States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
At sentencing, the district court made the following
findings. Lara recruited at least one accomplice to assist him
in obtaining fraudulent identity documents for his customers.
Lara sold identity documents to his customers, directed his
recruit to drive his customers to and from Missouri to obtain
the documents, and paid his recruit about $200, while charging
his customers $1700 to $2000 for the identity documents. The
district court further found Lara also directed others in the
conspiracy. Lara told the Puerto Rican conspirators where to
send the documents, providing them specific addresses, and then
directed others as to how to handle the documents.
Having reviewed the record, specifically the testimony
presented at sentencing and the presentence report, 1 and the
parties’ arguments, we conclude that the district court’s
1
Although Lara objected to the probation officer’s
conclusion in the presentence report that he was a leader, Lara
lodged no objections to the facts stated in the report, leaving
the district court “free to adopt the findings of the
[presentence report] without more specific inquiry or
explanation.” United States v. Love, 134 F.3d 595, 606 (4th
Cir. 1998) (internal quotation marks omitted); see also Fed. R.
Crim. P. 32(i)(3) (permitting district court to accept any
undisputed portion of the presentence report as a finding of
fact).
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determination that Lara was a leader or organizer in “brokering
the sale and delivery and arrangement” of fraudulent
identification documents to various customers in the United
States is adequately supported. 2
Accordingly, we affirm Lara’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
2
Because we find no procedural error in the district
court’s imposition of the enhancement, we need not address the
Government’s argument that any procedural error was harmless.
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