United States v. Balestier , 51 F. App'x 908 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4620
GILBERTO BALESTIER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-99-67)
Submitted: October 30, 2002
Decided: December 3, 2002
Before WILKINS, Circuit Judge, Frank J. MAGILL,
Senior Circuit Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation, and
Robert E. PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, George E.B.
Holding, First Assistant United States Attorney, Anne M. Hayes,
2 UNITED STATES v. BALESTIER
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gilberto Balestier appeals his conviction and sentence for possess-
ing a stolen vehicle within the territorial jurisdiction of the United
States. See 18 U.S.C.A. § 13(a) (West 2000) (assimilating N.C. Gen.
Stat. § 20-106 (2001)). We affirm.
I.
In July 1999, a man stole Richard Slade’s black 1997 Dodge Neon
from him at gunpoint outside a Rochester, New York bar. Inside the
vehicle were a set of golf clubs and other personal items belonging
to Slade.
The following month, Balestier and his girlfriend, Linnette Torres,
visited their friends Eliot and Virginia Rivera at the Riveras’ home on
the Camp Lejeune Marine Corps Base in North Carolina. Balestier
and Torres were driving the stolen vehicle.
Balestier and Torres admitted to Virginia Rivera (Rivera) that they
had stolen the vehicle, telling her that they had driven to a street near
a bar and waited for a customer to leave the bar. When a customer
exited the bar and approached his vehicle, Balestier accosted him and
demanded the vehicle at gunpoint. After stealing the vehicle, Balestier
and Torres drove to Torres’ mother’s house and removed some items
from the vehicle, including golf clubs.
Balestier and Torres were subsequently arrested and charged with
(1) conspiracy to transport a stolen vehicle in interstate commerce,
UNITED STATES v. BALESTIER 3
see 18 U.S.C.A. § 371 (West 2000); (2) transporting a stolen vehicle
in interstate commerce, see 18 U.S.C.A. § 2312 (West 2000); and (3)
possessing a stolen vehicle within the territorial jurisdiction of the
United States, see 18 U.S.C.A. § 13(a) (assimilating N.C. Gen. Stat.
§ 20-106). Following a jury trial, Balestier was convicted of the pos-
session charge and sentenced to 21 months imprisonment.
II.
At trial, Balestier testified that he had once been the victim of an
auto theft and that when recovered, the vehicle had broken windows
and a burned interior. The district court sustained the Government’s
objection to further testimony regarding the condition of the vehicle
on the ground that such testimony was irrelevant. See Fed. R. Evid.
402. Balestier challenges this ruling as an abuse of discretion. See
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999).
Evidence is relevant when it has "any tendency to make the exis-
tence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. Balestier argues that further testimony
regarding the damage to his vehicle would have supported his claim
that the undamaged condition of the Dodge Neon led him to believe
that it was not stolen. We reject this argument. The two competing
theories presented at trial were the Government’s claim that Balestier
stole the Dodge Neon, and Balestier’s claim that he rented it. If the
latter were true, Balestier would have no reason to believe that the
vehicle was stolen. Thus, further testimony about the condition of the
vehicle previously stolen from Balestier would have added nothing to
Balestier’s defense that he did not know the Dodge Neon was stolen.
The district court therefore did not abuse its discretion in excluding
this testimony.
III.
At sentencing, the district court imposed a two-level enhancement
for obstruction of justice based on its determination that Balestier
threatened Rivera. See U.S. Sentencing Guidelines Manual § 3C1.1
(2000); see also id. comment. (n.4(a)) (providing that enhancement
applies to "threatening, intimidating, or otherwise unlawfully influ-
4 UNITED STATES v. BALESTIER
encing a . . . witness"). Balestier challenges this ruling, arguing that
his actions toward Rivera did not constitute a threat. We review the
factual findings of the district court for clear error. See United States
v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000).
Rivera testified that after Balestier’s arrest, he asked her if she "was
going to say the truth." J.A. 86. Rivera responded, "[T]he truth?" Id.Balestier stated, "I didn’t do anything." Id. During this exchange,
Balestier brushed the back of his hand against Rivera’s face. Rivera
also testified that shortly after Balestier admitted to stealing the vehi-
cle, he had told her that if anyone did anything harmful to him, he
would "wait a little while to do a payback." Id. at 139.
Facts relevant to a sentencing determination need only be proven
by a preponderance of the evidence. See United States v. Lewis, 235
F.3d 215, 218 (4th Cir. 2000), cert. denied, 122 S. Ct. 39 (2001).
Here, the district court did not clearly err in finding that Balestier
threatened Rivera. Through his verbal statements, Balestier pressured
Rivera to testify in his favor, even though he previously admitted to
her that he stole the vehicle. See United States v. Riley, 991 F.2d 120,
125-26 (4th Cir. 1993) (affirming obstruction of justice enhancement
when defendant showed witness a copy of witness’ grand jury testi-
mony and told him, "[y]ou had better get it right" (internal quotation
marks omitted)). And, Balestier’s brushing of the back of his hand
against Rivera’s face while urging her to testify favorably appears to
have been an implicit threat, especially in light of his earlier statement
about "payback." Thus, we affirm the obstruction of justice enhance-
ment.
IV.
The district court also enhanced Balestier’s offense level by five
levels based upon its determination that the amount of loss exceeded
$10,000. See U.S.S.G. § 2B1.1(b)(1)(F). This finding was based on
the combined fair market value of the vehicle and its contents. Slade’s
insurance company reported that the market value of the vehicle was
$9,370, and the Government cited a printout produced in discovery
showing that the "Blue Book" value of the vehicle three to four
months after it was stolen was $9,910. Also, the presentence report
stated that the contents of the vehicle were valued at $1,250—a value
UNITED STATES v. BALESTIER 5
supported by Slade’s trial testimony. Balestier argues that the district
court committed clear error in calculating the amount of loss. Specifi-
cally, Balestier contends that the district court should have used the
loss claimed by the insurance company—$7,331.28—as the value of
the vehicle.
The amount of loss is normally the fair market value of the stolen
property. See U.S.S.G. § 2B1.1, comment. (n.2). Still, "the loss need
not be determined with precision," and the court "need only make a
reasonable estimate of the loss, given the available information." Id.
comment. (n.3). Here, the determination by the district court that the
amount of loss exceeded $10,000 was properly based on the com-
bined fair market value of the vehicle and its contents. The $7,331.28
figure cited by Balestier does not represent the market value of the
vehicle, but rather, the remaining loss to Slade’s insurance company
after it sold the vehicle at salvage and paid for a temporary rental
vehicle for Slade. Thus, the district court did not clearly err in finding
that the total loss exceeded $10,000.
V.
For the reasons set forth above, we affirm Balestier’s conviction
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