United States v. Mora , 275 F. App'x 193 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4985
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE JESUS MORA, a/k/a Jose Jesus Nuesslein, a/k/a Joe Mora,
a/k/a Jose Jesus Neusslein,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cr-00062-RAJ)
Submitted: April 4, 2008 Decided: April 25, 2008
Before MICHAEL and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin M. Mason, MASON, MASON, WALKER & HEDRICK, P.C., Newport
News, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Stephen W. Haynie, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Following a jury trial, Jose Jesus Mora was convicted of
three counts of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000), and one
count of possession of a stolen firearm, in violation of 18 U.S.C.
§§ 922(j) and 924(a)(2) (2000). The district court sentenced him
to a total of 84 months’ imprisonment, which was above the advisory
sentencing guideline range. Mora appeals, challenging the denial
of his motion for judgment of acquittal on two counts of the
§ 922(g)(1) offense, the imposition of an obstruction of justice
enhancement, the reasonableness of his sentence, and the imposition
of non-mandatory conditions of supervised release. Finding no
reversible error, we affirm.
I.
We review de novo a district court’s decision to deny a
Rule 29 motion for judgment of acquittal. United States v. Smith,
451 F.3d 209, 216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006).
Where, as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). In evaluating the sufficiency of the evidence, this
court “do[es] not review the credibility of the witnesses and
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assume[s] the jury resolved all contradictions in the testimony in
favor of the government.” United States v. Sun, 278 F.3d 302, 313
(4th Cir. 2002). The court “must consider circumstantial as well
as direct evidence, and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982).
In order to convict Mora under § 922(g)(1), the
Government had to establish that (1) Mora had been previously
convicted of a felony, (2) Mora knowingly possessed the firearm,
and (3) the possession was in or affecting interstate or foreign
commerce. See United States v. Gilbert, 430 F.3d 215, 218 (4th
Cir. 2005). Mora stipulated to the first and third elements at
trial. Viewing the evidence in the light most favorable to the
Government and allowing the Government the benefit of all
reasonable inferences therefrom, the evidence showed that Mora
traded a stolen Beretta shotgun to a friend in exchange for a Glock
17 pistol with the serial number AHM397US. On two separate
subsequent occasions, witnesses saw Mora wearing a Glock 17 pistol
in a holster on his hip. We conclude that jurors could reasonably
convict Mora of the charged offense — possession of the Glock 17
pistol with the serial number AHM397US — on this evidence.
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II.
Mora also challenges the district court’s enhancement of
his sentencing guidelines offense level for obstruction of justice,
pursuant to § 3C1.1 of the U.S. Sentencing Guidelines Manual
(“USSG”). Mora contends that his Sixth Amendment rights were
violated because the facts supporting the sentence enhancement were
not proven beyond a reasonable doubt to the jury. However,
pursuant to the remedial portion of United States v. Booker, 543
U.S. 220 (2005), district courts will continue to make decisions
about sentencing factors on the preponderance of the evidence,
taking into account that the resulting Guidelines range is advisory
only. See United States v. Morris, 429 F.3d 65, 71-72 (4th Cir.
2005).
As to the district court’s obstruction of justice
determination, this court reviews findings of fact for clear error
and questions of law de novo. United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Pursuant to § 3C1.1, a two-level enhancement for obstruction of
justice may be imposed if the defendant:
willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing
of the instant offense of conviction, and the obstructive
conduct related to the defendant’s offense of conviction
. . . .
The evidence shows that after Mora had been arrested on the charged
offenses, he engaged in several telephone communications with his
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wife regarding the existence of an air pistol that was “nearly
identical” to the Glock 17 the witnesses claimed Mora possessed.*
Mora asked his wife to look at an internet site that sold the air
pistol and to ask the friend who had given him the Glock 17 if he
was correct that the real Glock 17 and the air pistol were
indistinguishable. Mora asked his wife to purchase the air pistol
because it was “perfectly legal for a convicted felon to have one”
and it would be “exhibit one in [his] defense.” Mora discussed at
length his desire to put “as much doubt in the jury’s mind as
possible” as to whether he committed the charged offenses. Based
on this evidence, we find the district court’s factual findings
were not clearly erroneous and they adequately supported a two-
point enhancement for obstruction of justice.
III.
Mora also challenges the reasonableness of his sentence,
including the district court’s determination that Mora’s Guidelines
criminal history category did not adequately represent his criminal
history or the likelihood that he would commit future offenses.
Following United States v. Booker, 543 U.S. 220 (2005),
a district court must engage in a multi-step process at sentencing.
First, it must calculate the appropriate advisory Guidelines range.
*
Mora stipulated that the telephone conversations had been
lawfully recorded.
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It must then consider the resulting range in conjunction with the
factors set forth in 18 U.S.C. § 3553(a) (2000) and determine an
appropriate sentence. United States v. Davenport, 445 F.3d 366,
370 (4th Cir. 2006).
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). The appellate court must first ensure
that the district court committed no procedural error, such as
“failing to calculate (or improperly calculating) the Guideline
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guideline range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence. Id.“Substantive reasonableness review entails taking into account the
totality of the circumstances, including the extent of any variance
from the Guidelines range.” Pauley, 511 F.3d at 473. While the
court may presume a sentence within the Guidelines range to be
reasonable, it may not presume a sentence outside the range to be
unreasonable. Id. Moreover, it must give due deference to the
district court’s decision that the § 3553(a) factors justify
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imposing a sentence above the Guidelines range and to its
determination regarding the extent of any departure. Even if the
reviewing court would have reached a different sentencing result on
its own, this fact alone is insufficient to justify reversal of the
district court. Id. at 474.
Here, the district court followed the necessary
procedural steps in sentencing Mora, properly calculating the
Guidelines range and considering that recommendation in conjunction
with the § 3553(a) factors. In so doing, it granted the
Government’s motion for an upward departure based on
underrepresentation of Mora’s lengthy and diverse criminal history
and the likelihood that Mora would commit future offenses.
However, instead of readjusting Mora’s Guidelines range by a
particular amount, the district court decided to take those facts
into consideration with the § 3553(a) factors in determining its
sentence. In light of the facts of this case, and the district
court’s meaningful articulation of its consideration of the
§ 3553(a) factors and its bases for departing from the recommended
Guideline range, we find the district court’s decision to depart,
and the extent of the departure, reasonable.
IV.
Lastly, Mora challenges the district court’s imposition
of certain special conditions of supervised release. Because Mora
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failed to object to the conditions of supervised release in the
district court, this court reviews them for plain error. See
United States v. Alvarez, 478 F.3d 864, 866 (8th Cir. 2007). To
meet the plain error standard: (1) there must be an error; (2) the
error must be plain; and (3) the error must affect substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). If
the three elements of this standard are met, this court may still
exercise its discretion to notice the error only “if the error
“seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 736. Under this standard, we
find Mora has not met his burden of proving the district court
committed plain error in imposing his special conditions of
supervised release.
V.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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