United States v. Barry Murel , 502 F. App'x 291 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY MUREL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:10-cr-00013-JFM-1)
Submitted: October 16, 2012 Decided: December 28, 2012
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, John W. Sippel, Jr., Peter M. Nothstein, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial, Barry Murel (Murel) was convicted
on two counts of possession with the intent to distribute
controlled substances, 21 U.S.C. § 841(a)(1), and one count of
possession of a firearm and ammunition by a convicted felon, 18
U.S.C. § 922(g)(1). The district court sentenced him to a total
of 192 months’ imprisonment. On appeal, Murel challenges his
convictions and sentence. For the following reasons, we affirm.
I.
A controlled purchase of cocaine base on June 10, 2009,
from Murel by a confidential informant in front of Murel’s
residence resulted in Murel’s arrest three days later on June
13, 2009. A search of Murel’s person incident to his arrest
resulted in the recovery of, inter alia, two plastic bags
containing cocaine base and three plastic bags containing
heroin. Based upon the June 10 controlled purchase, a search
warrant was issued for Murel’s residence on June 12, 2009.
Execution of such search warrant the next day resulted in law
enforcement officers recovering a firearm and ammunition from
Murel’s bedroom.
One of Murel’s two instant offenses for possession with the
intent to distribute a controlled substance stemmed from the
seizure of cocaine base from his person during the search
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incident to his arrest on June 13, 2009. Murel’s other
possession-with-the-intent-to-distribute offense stemmed from
the seizure of heroin from Murel’s person during the same search
incident to his arrest. Murel’s instant offense for possession
of a firearm and ammunition by a convicted felon stemmed from
the recovery of the firearm and ammunition from Murel’s bedroom.
Notably, the controlled purchase by the confidential informant
on June 10, 2009, did not serve as the basis of any of Murel’s
three instant offenses. Moreover, the government did not offer
evidence of such controlled purchase during Murel’s trial.
II.
Murel seeks reversal of all three of his convictions based
upon his argument that the district court erred by denying his
pretrial motion to require the government to disclose the
identity of the confidential informant who conducted the
controlled purchase on June 10, 2009. Murel’s argument is
without merit.
A district court’s decision to deny a defendant’s motion
for disclosure of the identity of a confidential informant is
reviewed for abuse of discretion. United States v. Gray, 47
F.3d 1359, 1363-64 (4th Cir. 1995). Of relevance to the present
appeal, the qualified privilege of the government to withhold
the identity of persons who furnish information of illegal
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activity to law enforcement officers must give way “[w]here the
disclosure of an informer’s identity . . . is relevant and
helpful to the defense of an accused . . . .” Roviaro v. United
States, 353 U.S. 53, 60-61 (1957). See also United States v.
Smith, 780 F.2d 1102, 1107 (4th Cir. 1985) (public’s interest in
encouraging persons to come forward with information that can
aid effective law enforcement and interest in maintaining the
safety and security of such persons must be balanced against
defendant’s right to present his defense). The defendant bears
the burden of establishing an actual basis for entitlement to
disclosure of the identity of a confidential informant. United
States v. D’Anjou, 16 F.3d 604, 609-10 (4th Cir. 1994).
Below, Murel offered the district court no explanation as
to how disclosure of the identity of the confidential informant
would be relevant to any defense he sought to present at trial.
Instead, Murel merely speculated in a conclusory manner that
such confidential informant “could potentially provide relevant
and helpful testimony for the defense concerning what occurred
and what the CI observed, if anything, at [his residence] in
connection with the alleged controlled buy on Jun[e] 10, 2009.”
(J.A. 148-49) (Murel’s Motion to Compel Disclosure of
Confidential Informant Information).
After reviewing Murel’s arguments, the record, and the
relevant legal authorities, we conclude Murel failed to carry
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his burden of establishing an actual basis for disclosure of the
identity of the confidential informant who conducted the
controlled purchase from Murel on June 10, 2009. Accordingly,
the district court did not abuse its discretion in denying
Murel’s motion to compel disclosure of such confidential
informant’s identity. Of significant importance to our
conclusion is the fact that although the confidential informant
participated in the controlled purchase which resulted in
Murel’s arrest and issuance of the search warrant for his
residence, Murel’s participation in the controlled purchase is
not the subject of his instant offenses. Smith, 780 F.2d at
1108 (in determining whether defendant carried his burden of
establishing entitlement to disclosure of identity of
confidential informant, “[o]ne of the most important factors to
be considered is the materiality of the evidence to the
defendant’s particular defense”). Rather, Murel was charged
with three criminal offenses stemming from evidence recovered
three days after the controlled purchase at issue. In sum,
Murel has offered nothing more than rank speculation as to how
disclosure of the identity of the confidential informant would
have been relevant to his defense; therefore, he has failed to
carry his burden on this issue. See id. (disclosure of
confidential informant’s identity only required after court has
determined such informant’s “testimony is highly relevant”).
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III.
Murel next challenges the district court’s conclusion that
he qualified for an enhanced sentence under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Under the ACCA, a
defendant is subject to a mandatory minimum of fifteen years’
imprisonment if his instant offense is a violation of § 922(g)
and he has at least three previous convictions “for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another . . . .” Id. § 924(e)(1).
The government bears the burden of proving a defendant has three
predicate convictions under the ACCA by a preponderance of the
evidence. United States v. Harcum, 587 F.3d 219, 222 (4th Cir.
2009). Here, the district court determined the government
carried its burden of proving that Murel had three predicate
convictions under the ACCA. We review this determination de
novo. United States v. Brandon, 247 F.3d 186, 188 (4th Cir.
2001).
Murel concedes that his 2003 Maryland state court
conviction for possession with the intent to distribute heroin
is a serious drug offense as defined by the ACCA and, therefore,
qualifies as a predicate conviction. He also concedes that his
1980 Maryland state court conviction for attempted robbery is a
violent felony as defined by the ACCA. He argues, however, that
such conviction cannot serve as a predicate conviction under the
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ACCA because it occurred outside of the ten-year time limit set
forth in § 4A1.2(e)(2) of the United States Sentencing
Guidelines (USSG or Guidelines). Pursuant to USSG
§ 4A1.2(e)(2), when computing a defendant’s prior criminal
history, a conviction which occurred more than ten years before
the instant offense is not counted. The fallacy in Murel’s
argument is that the ACCA does not contain the temporal
restriction on prior convictions set forth in USSG
§ 4A1.2(e)(2). United States v. Presley, 52 F.3d 64, 69-70 (4th
Cir. 1995) (no temporal restrictions on prior convictions for
purposes of qualifying as a predicate conviction under ACCA).
See also USSG § 4B1.4 comment.(n.1) (time periods for counting
prior sentences under USSG § 4A1.2 not applicable to whether
defendant is subject to enhanced sentence under § 924(e)).
Therefore, Murel’s 1980 conviction for attempted robbery was not
time barred and counts as a second predicate conviction under
the ACCA.
This brings us to Murel’s 1998 Maryland state court
conviction for resisting arrest. Resisting arrest is
categorically a violent felony for ACCA purposes. United States
v. Jenkins, 631 F.3d 680, 682-85 (4th Cir. 2011); United States
v. Wardrick, 350 F.3d 446, 455 (4th Cir. 2003). Murel did not
argue otherwise below; rather he only argued that his resisting
arrest conviction could not be counted for ACCA purposes because
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it was timed out. Notably, Murel does not make any mention of
his resisting arrest conviction on appeal. Because we have
already rejected Murel’s timed-out argument and Murel’s
resisting arrest conviction is categorically a violent felony
for ACCA purposes, it serves as his third predicate conviction.
Accordingly, the district court did not err in determining that
Murel qualified for an enhanced sentence under the ACCA.
IV.
Murel contends the district court failed to explain the
extent to which the 18 U.S.C. § 3553(a) factors supported its
sentencing him to a 192–month term of imprisonment, and
therefore, imposed a procedurally unreasonable sentence.
Murel’s contention is without merit. Our review of the
record discloses the district court met its obligations of
procedural reasonableness with respect to the § 3553(a) factors
by placing on the record an individualized assessment of the
§ 3553(a) factors based on the particular facts of Murel’s case
and explaining the extent to which the § 3553(a) factors
supported its chosen sentence below his advisory range under the
Guidelines in a manner sufficient to permit us to conduct
meaningful appellate review. See United States v. Carter, 564
F.3d 325, 329–30 (4th Cir. 2009) (district court need not
robotically tick through every § 3553(a) factor; conversely,
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talismanic recitation of every § 3553(a) factor without
application to defendant being sentenced does not demonstrate
reasoned decision-making or provide adequate basis for appellate
review; rather, district court must place on record
individualized assessment based on particular facts of case at
hand; such assessment need not be elaborate or lengthy, but must
provide rationale tailored to particular case at hand and
adequate to permit meaningful appellate review).
V.
Having concluded Murel’s sentence is procedurally
reasonable, we now consider Murel’s challenge to its substantive
reasonableness. We review the substantive reasonableness of
Murel’s sentence for abuse of discretion, examining the totality
of the circumstances, including the extent of the district
court’s downward variance to 192 months’ imprisonment from his
advisory range of 235 to 293 months’ imprisonment under the
Guidelines. See United States v. Morace, 594 F.3d 340, 345–46
(4th Cir. 2010) (in reviewing sentence for substantive
reasonableness, appellate court must take into account totality
of the circumstances, including extent of any variance from
defendant’s advisory range under the Guidelines). We have
reviewed the record and conclude that the district court
considered the parties’ arguments and adequately explained its
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chosen sentence pursuant to the § 3553(a) factors, particularly
the need to protect the community from Murel and the need to
deter him from the conduct which resulted in his instant
convictions. Murel has failed to demonstrate an abuse of
discretion. Accordingly, we uphold Murel’s sentence as
substantively reasonable.
VI.
For the reasons stated herein, we affirm Murel’s
convictions and sentence. 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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