United States v. Obed Chirinos

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OBED ISSAC CHIRINOS, a/k/a Billy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:10-cr-00298-D-2)
Submitted: August 22, 2012 Decided: October 4, 2012
Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND, PA,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Joshua L. Rogers, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This criminal appeal stems from the armed robbery of a
convenience store in Newton Grove, North Carolina, by Obed
Chirinos (Defendant) and three coconspirators. 1 Defendant
appeals the district court’s sentence of 264 months’
imprisonment imposed after he pled guilty to one count of
conspiracy to interfere with commerce by robbery (Count 1), in
violation of 18 U.S.C. § 1951; one count of aiding and abetting
the interference with commerce by robbery (Count 2), in
violation of 18 U.S.C. §§ 2, 1951; and one count of aiding and
abetting the using and carrying of a firearm during and in
relation to a crime of violence (Count 3), in violation of 18
U.S.C. §§ 2, 924(c). Defendant challenges his sentence on
numerous grounds. Finding no merit to such challenges, we
affirm.
I
A
On or about November 30, 2009, at the direction of
Defendant and Carlos Diaz (Diaz), Elvin Murillo (Murillo) drove
Defendant, Diaz, and a sixteen year-old juvenile identified in
1
The three coconspirators are not parties in the present
appeal.
2
the record as FV to a convenience store named Warren’s Grocery
and Gas in Newton Grove, North Carolina. Murillo remained in
the vehicle. Defendant, who was armed with a .45 caliber
pistol, entered the store first. Diaz, who was armed with a
sawed-off shotgun, and FV, who was unarmed, followed.
Upon entering the store, Defendant and Diaz brandished
their firearms and yelled, “‘Give me your money.’” (J.A. 346).
When the owners of the store, who were behind the counter, told
the three coconspirators that the money had already been taken
to the bank, Defendant pointed his firearm at them. In
response, one of the two owners began throwing various items at
the coconspirators from behind the counter, including a box
containing a .22 caliber pistol. The pistol fell out of the box
when it hit the floor. FV picked up the pistol. One of the
owners then activated the store’s alarm, at which time the
coconspirators fled to the getaway car with FV taking the .22
caliber pistol.
B
Defendant pled guilty to Counts 1, 2, and 3 on March
21, 2011. 2 On the same day, the district court set Defendant’s
2
Approximately five months earlier, Murillo pled “guilty to
Conspiracy to Interfere With Commerce by Robbery and Using and
Carrying Firearms During and in Relation to a Crime of Violence
(Continued)
3
sentencing hearing for July 5, 2011. On April 26, 2011,
Defendant received the first draft of his presentence
investigation report prepared by the probation officer assigned
to his case. On that same day, Defendant was notified that he
had to communicate any objections thereto by May 11, 2011. On
May 11, 2011, Defendant moved to extend the deadline to
communicate his objections. The next day, the district court
granted Defendant’s motion and extended the deadline until June
1, 2011.
On June 1, 2011, Defendant communicated his
objections, and, on June 21, 2011, the final version of the
presentence report (the PSR) was filed. Six days later, on June
27, 2011, Defendant moved to continue his sentencing hearing for
at least sixty days, asserting his need for additional time to
apply for writs of habeas corpus ad testificandum, to subpoena
witnesses, and to avail himself of Spanish-to-English
translation services with respect to certain documents he
desired to offer in support of his PSR objections. The district
and Aiding and Abetting.” (J.A. 346) (Defendant’s presentence
report). Approximately one and one-half months after Defendant
entered his guilty plea in this case, Diaz pled guilty to one
count of aiding and abetting the using and carrying of a firearm
during and in relation to a crime of violence. FV was not
indicted.
4
court granted this motion the next day, continuing Defendant’s
sentencing hearing until September 6, 2011.
Defendant waited a month after the time the district
court granted Defendant his requested continuance to file
applications for writs of habeas corpus ad testificandum with
respect to Diaz and Murillo, who were both in federal custody.
The district court issued the requested writs on August 30,
2011. The next day, Defendant moved to continue his sentencing
hearing for a second time. This time, Defendant sought to
continue his sentencing hearing from September 6, 2011 “to a
session of court that convenes at least 21 days later in order
to provide the United States Marshals Service sufficient time to
execute the writs of habeas corpus ad testificandum” the
district court issued with respect to Diaz and Murillo. (J.A.
87). According to Defendant’s written motion, he sought to have
Diaz and Murillo “testify at his sentencing hearing as fact
witnesses whose testimonies relate to [his] factual objections
to the [PSR].” (J.A. 86).
At the beginning of Defendant’s sentencing hearing on
September 6, 2011, the district court heard oral argument from
both sides regarding Defendant’s pending motion to continue the
hearing for an additional twenty-one days. Notably, Diaz and FV
were available to testify at the September 6 hearing. This left
Defendant with the argument that the district court should
5
further continue his sentencing hearing so that he could have
the opportunity to call Murillo to the stand. Specifically,
Defendant told the district court that he had the right to cross
examine Murillo about Murillo’s statements regarding Defendant’s
role in the offense upon which the PSR relies in recommending
that Defendant receive a 2 level enhancement in his total
offense level under § 3B1.1(c) of the United States Sentencing
Guidelines, United States Sentencing Commission, Guidelines
Manual (USSG), for his leadership role in the robbery.
After hearing from the government, the district court
denied the motion. The district court had already noted that
under Fourth Circuit precedent, the Confrontation Clause does
not apply at sentencing, and therefore, Defendant did not have a
right to cross examine Murillo about statements he made
regarding Defendant’s role in the offense. See United States v.
Powell, 650 F.3d 388, 393 (4th Cir.) (Confrontation Clause does
not apply at sentencing), cert. denied, 132 S. Ct. 350 (2011).
Moreover, the district court reasoned:
Mr. Diaz is here prepared to testify, the minor is
here prepared to testify. The defense counsel has the
statements, and I’ll let him introduce them, of
Murillo and others. . . .
And I do think that there comes a time when a case
needs to move forward. And I do think that there is
certainly ample evidence that the defense can present
in connection with these issues that are raised as
objections and likewise for the Government and the
6
Court will carefully listen to and consider all of
these during the course of the sentencing here.
(J.A. 103-04).
Diaz, FV, and Defendant each testified during the
sentencing hearing. Thereafter, the district court heard oral
argument on both sides. With respect to Count 1 and Count 2,
the district court calculated Defendant’s total offense level
under the Sentencing Guidelines at 27 and his criminal history
category at I, resulting in an advisory guideline range of 70 to
87 months’ imprisonment. Of relevance to the present appeal, in
arriving at the total offense level of 27, the district court
increased Defendant’s base level of 20: (1) by 1 level, under
USSG § 2B1.1(b)(6), based upon its finding that a firearm was
taken during and from the scene of the robbery; (2) by 2 levels,
under USSG § 3B1.1(c), based upon its finding that Defendant was
an organizer of and leader in the robbery; and (3) by 2 levels,
under USSG § 3C1.1, for obstruction of justice based upon its
findings that: (a) Defendant threatened to kill FV if he
cooperated with authorities; (b) Defendant threatened to have
fellow prison inmates physically harm Diaz if he cooperated with
authorities, including testifying at Defendant’s sentencing
hearing; and (c) Defendant perjured himself while testifying on
his own behalf during the sentencing hearing. Moreover, the
district court refused to reduce Defendant’s offense level by 3
7
levels, under USSG § 3E1.1, for acceptance of responsibility as
recommended in the PSR. The district court also noted that the
§ 924(c) offense, Count 3, carried a ten year minimum term of
imprisonment to run consecutive to any other term of
imprisonment. Having fully considered all of the 18 U.S.C.
§ 3553(a) factors, the district court believed that the advisory
guideline range was too low to “account for the serious nature
of the crime, the obstruction of justice, the multitude of forms
of it, the repeated perjury.” (J.A. 282). Ultimately, the
district court sentenced Defendant to 264 months’ imprisonment
(120 months’ imprisonment attributable to Count 3) and five
years of supervised release.
II
We review Defendant’s sentence for reasonableness,
applying the abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). Our review requires
consideration of both the procedural and substantive
reasonableness of his sentence. Id.III
Defendant raises six challenges to the procedural
reasonableness of his sentence. The first pertains to the
district court’s denial of his second motion to continue his
8
sentencing hearing. The next four pertain to the district
court’s calculation of his advisory guideline range. The sixth
challenge pertains to the adequacy of the district court’s
explanation regarding the applicability of 18 U.S.C. § 3553(a)’s
sentencing factors. We address each challenge in turn.
A
Defendant first challenges his sentence on the ground
that the district court abused its discretion by denying his
second motion for a continuance of his sentencing hearing in
order that he may procure the presence of Murillo to testify
during the hearing. Defendant’s challenge is without merit.
We review a district court’s denial of a defendant’s
motion for a continuance of his sentencing hearing for an abuse
of discretion. United States v. Speed, 53 F.3d 643, 644 (4th
Cir. 1995). “Because a district court has broad discretion in
scheduling the sentencing proceeding, absent a showing both that
the denial was arbitrary and that it substantially impaired the
defendant’s opportunity to secure a fair sentence, we will not
vacate a sentence because a continuance was denied.” Id. at
644-45 (internal quotation marks and alteration marks omitted).
Here, the record reflects that the district court’s
denial of Defendant’s second motion to continue his sentencing
hearing was not arbitrary, but rather thoughtful and considered.
9
First, the district court correctly acknowledged that, contrary
to Defendant’s argument, the Confrontation Clause does not apply
at sentencing, and therefore, Defendant did not have a right to
cross examine Murillo about statements he made to law
enforcement regarding Defendant’s role in the offense. Powell,
650 F.3d at 393. Second, the district court was rightly
cognizant of the fact that it had already granted Defendant a
substantial continuance of his sentencing hearing and Defendant
had nonetheless delayed in applying for a writ of habeas corpus
ad testificandum with respect to Murillo until one month
thereafter. Third and finally, the district court acknowledged
that both Diaz and FV were present at the September 6 sentencing
hearing and ready to testify as desired by Defendant. In sum,
Defendant has not shown the required arbitrariness on the part
of the district court.
Defendant has equally failed to show that the district
court’s refusal to continue his sentencing hearing for a second
time in order to secure Murillo’s testimony at the hearing
substantially impaired Defendant’s opportunity to secure a fair
sentence. Although the PSR’s account of Defendant’s offense
conduct came directly from law enforcement debriefings of
Murillo, Defendant never identified for the district court the
specific testimony he sought to extract from Murillo on the
witness stand in support of any of his objections to the PSR.
10
Likewise, Defendant has failed to do so on appeal. We also note
that two of Defendant’s three coconspirators were present and
ready to testify at his sentencing hearing as desired by
Defendant.
In sum, Defendant has failed to show the district
court abused its discretion in denying his second motion for a
continuance of his sentencing hearing.
B
Defendant contends the district court procedurally
erred by increasing his offense level by 1 level under USSG
§ 2B3.1(b)(6) for his participation in a robbery in which a
firearm was taken, because, according to Defendant, the taking
of a firearm during the robbery by one of his coconspirators was
not reasonably foreseeable to him. We hold the district court
did not procedurally err in this regard. Based upon the
undisputed evidence in the record, Defendant reasonably foresaw
that the convenience store owner would have a gun and that it
would be stolen during the course of the robbery by one of his
coconspirators.
C
Defendant contends the district court procedurally
erred by increasing his offense level by 2 levels under USSG
11
§ 3B1.1(c) for being an organizer of and leader in the robbery.
Defendant’s contention is without merit.
Under USSG § 3B1.1(c), a defendant’s offense level
should be increased by 2 levels if he was an “organizer, leader,
manager, or supervisor” of at least one other person in any
criminal activity that did not involve five or more participants
and was not otherwise extensive, USSG § 3B1.1(c). United States
v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003); United States v.
Sayles, 296 F.3d 219, 226 (4th Cir. 2002). We review a district
court’s finding regarding a defendant’s role in the offense for
purposes of applying a USSG § 3B1.1(c) enhancement for clear
error. Here, the record contains ample evidence to support, by
a preponderance of the evidence, the district court’s finding
that Defendant “fit the bill” of an organizer and leader within
the framework of USSG § 3B1.1(c). (J.A. 260). Accordingly, we
uphold this enhancement.
D
Defendant contends the district court procedurally
erred by increasing his offense level by 2 levels under USSG
§ 3C1.1 for obstruction of justice. The obstruction of justice
enhancement applies:
If (1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
12
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense
. . . .
USSG § 3C1.1. Defendant argues the enhancement does not apply
because, assuming arguendo that he willingly gave false
testimony during his sentencing hearing, the district court
failed to make specific findings that the subject of such
testimony concerned matters material to his sentencing.
We hold the district court properly applied the
obstruction of justice enhancement. First, Defendant does not
take issue with the district court’s factual findings that
Defendant obstructed justice by threatening to kill FV if he
cooperated with authorities and by threatening to have fellow
prison inmates physically harm Diaz if he testified against him
at his sentencing hearing. These two findings alone support
application of the obstruction of justice enhancement.
Alternatively, the record establishes that although
the district court did not specifically find that Defendant’s
willfully false testimony on numerous subjects was material to
his sentencing, the district court provided sufficient
explanation to permit us to conclude that such testimony was
material to his sentencing. See United States v. Quinn, 359
F.3d 666, 681 (4th Cir. 2004) (affirming obstruction of justice
enhancement for perjury even though district court did not
13
specifically find defendant’s false testimony was material, but
did provide sufficient explanation to permit appellate court to
conclude it was). For example, when discussing its rationale
for applying the obstruction of justice enhancement, the
district court stated: “He lied again when he said he never
threatened anyone in this case. I think [he] absolutely did do
that and he’s a perjurer.” (J.A. 264).
E
Defendant contends the district court procedurally
erred by failing to lower his offense level by 3 levels for
acceptance of responsibility under USSG § 3E1.1. Defendant’s
contention is without merit.
An enhancement for obstruction of justice “ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct,” outside of “extraordinary cases in which
adjustments” for both obstruction of justice and acceptance of
responsibility may be applicable. USSG § 3E1.1, comment. (n.4).
Here, Defendant’s conduct underlying his enhancement for
obstruction of justice confirms that he has not accepted
responsibility for his criminal conduct and this is not an
extraordinary case in which both an enhancement for obstruction
of justice and acceptance of responsibility should apply.
14
F
Defendant 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 264-month term of
imprisonment, and therefore, imposed a procedurally unreasonable
sentence. Defendant’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
Defendant’s case and explaining the extent to which the
§ 3553(a) factors supported its chosen sentence above 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, 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).
15
IV
Having concluded Defendant’s sentence is procedurally
reasonable, we now review for abuse of discretion its
substantive reasonableness, examining the totality of the
circumstances, including the extent of the district court’s
upward variance from Defendant’s advisory range 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 guideline range). We have reviewed the
record and conclude that the district court considered the
parties’ arguments and fully explained its decision pursuant to
the § 3553(a) factors, particularly Defendant’s extraordinary
behavior in threatening to murder a cooperating juvenile
witness, his repeated perjury during the sentencing hearing, the
substantial need for deterrence, and the need to protect the
public from Defendant. Defendant has failed to demonstrate an
abuse of discretion. Accordingly, we uphold Defendant’s
sentence as substantively reasonable.
V
For the reasons stated herein, we affirm Defendant’s
sentence. We dispense with oral argument because the facts and
16
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
17