United States v. Donaldson-Pinilla

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4561
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFETH DONALDSON-PINILLA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:03-cr-00744-SB)
Submitted: December 3, 2007 Decided: September 9, 2008
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Robert Hayden Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Jeffeth Donaldson-Pinilla was
convicted of conspiracy to import five kilograms or more of cocaine
into the United States, in violation of 21 U.S.C. ' 963 (2000),
importation or aiding and abetting others in the importation of 500
grams or more of cocaine into the United States, in violation of 21
U.S.C. '' 952(a), 960(a)(1) & (b)(2) (2000) and 18 U.S.C. ' 2
(2000), conspiracy to possess with intent to distribute and to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. ' 846 (2000), and attempting to possess with intent to
distribute 500 grams or more of cocaine, in violation of 21
U.S.C.A. ' 841 (West 1999 & Supp. 2007). The district court
imposed a 320-month variance sentence, four months below the
advisory guideline range. Donaldson-Pinilla timely appealed.
Donaldson-Pinilla=s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court erred in denying his motion
to suppress the statement he made before being administered the
Miranda* warnings, permitting the Government to introduce evidence
of Donaldson-Pinilla=s prior bad acts, attempts to hide evidence and
create an alibi, and his illegal alien status, and denying his
motion for a judgment of acquittal. Counsel also questions whether
the downward variance sentence was reasonable. Counsel states,
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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however, that he has found no meritorious grounds for appeal.
Donaldson-Pinilla was advised of his right to file a pro se
supplemental brief, but he did not file one. For the reasons that
follow, we affirm Donaldson-Pinilla=s convictions and sentence.
Turning first to the denial of the motion to suppress,
Donaldson-Pinilla was stopped on the Port of Charleston,
specifically the Wando Welch terminal in Mt. Pleasant, South
Carolina, while police were conducting surveillance of drug
trafficking activity. Because he was slow in responding to the
officer=s commands to exit the vehicle and repeatedly tried to reach
back into the vehicle, the officer placed him on the ground and
handcuffed him for the officer=s safety. In response to the
officer=s questions, Donaldson-Pinilla identified himself by an
alias and stated that he was on the port with Ben Parker, an
individual believed by the investigators to be involved in drug
trafficking.
Donaldson-Pinilla sought to suppress this statement on
the ground that the officer failed to administer the Miranda
warnings before questioning him. Miranda warnings are required
when an individual is subjected to custodial interrogation. United
States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir. 1995). However,
Adrawing weapons, handcuffing a suspect, placing a suspect in a
patrol car for questioning, or using or threatening to use force
does not necessarily elevate a lawful stop into a custodial arrest
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for Miranda purposes.@ Id. at 1109-10 (citations omitted).
Although he does not dispute that there was reasonable suspicion to
conduct a brief investigatory stop, see Terry v. Ohio, 392 U.S. 1,
30 (1968) (permitting brief, investigatory stop when officer has
Areasonable, articulable suspicion that criminal activity is
afoot@), Donaldson-Pinilla argues that the restrictions placed on
him transformed his detention from a Terry stop to a full custodial
arrest. We find that these restrictions lasted only long enough to
verify the officer=s suspicions that Donaldson-Pinilla was engaged
in illegal activity and therefore did not elevate the Terry stop
into an arrest. Consequently, the Miranda warnings were not
required. Accordingly, the district court did not err by denying
Donaldson-Pinilla=s motion to suppress.
Next, Donaldson-Pinilla contends that the district court
erred by admitting evidence of his prior bad acts, as well as his
efforts to hide evidence and create an alibi for his presence on
the port. We find that the evidence of his prior bad acts was
admissible under Rule 404(b) of the Federal Rules of Evidence. See
United States v. Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004)
(discussing standard for admissibility of Rule 404(b) evidence).
In addition, we conclude that evidence that Donaldson-Pinilla tried
to obstruct justice by attempting to hide evidence and create an
alibi defense was admissible as intrinsic evidence of the crimes
charged. United States v. Higgs, 353 F.3d 281, 311 (4th Cir.
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2003); United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996).
Moreover, assuming arguendo that the district court erred by
admitting evidence of Donaldson-Pinilla=s illegal alien status, we
find any error harmless because, in light of the overwhelming
evidence against Donaldson-Pinilla, the jury was not substantially
swayed by the fact that he was in the country illegally. See
United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994) (discussing
standard for determining whether nonconstitutional error was
harmless).
Counsel also questions whether the district court erred
by denying Donaldson-Pinilla=s motions for a judgment of acquittal.
Where, as here, the motions were based on claims of insufficient
evidence, A[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); United States v. Smith, 451 F.3d 209, 216 (4th Cir.),
cert. denied, 127 S. Ct. 187 (2006). We have reviewed the record
and find that substantial evidence supported Donaldson-Pinilla=s
convictions on each count.
Finally, Donaldson-Pinilla challenges the reasonableness
of his sentence. After United States v. Booker, 543 U.S. 220(2005), district courts are no longer bound by the range prescribed
by the sentencing guidelines. When sentencing a defendant, a
district court must: (1) properly calculate the guideline range;
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(2) determine whether a sentence within that range serves the
factors set out in ' 3553(a); (3) implement mandatory statutory
limitations; and (4) explain its reasons for selecting a sentence.
United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). The
Guidelines are Athe starting point and the initial benchmark.@ Gall
v. United States, 128 S. Ct. 586, 596 (2007). Next, the court
should give the parties the opportunity to argue for whatever
sentence they deem appropriate. The court is then instructed to
consider the ' 3553(a) factors in light of the defendant=s request
to impose a specific sentence. Id. Appellate courts review
sentences imposed by district courts for reasonableness, applying
an abuse of discretion standard. Gall, 128 S. Ct. at 597-98;
Pauley, 511 F.3d at 473-74.
Having thoroughly reviewed Donaldson-Pinilla=s sentence,
we find that the district court properly calculated his guideline
range and acted reasonably in imposing the downward variance
sentence. In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we affirm Donaldson-Pinilla=s convictions and sentence.
This court requires that counsel inform Donaldson-
Pinilla, in writing, of the right to petition the Supreme Court of
the United States for further review. If Donaldson-Pinilla
requests that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move in this court
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for leave to withdraw from representation. Counsel=s motion must
state that a copy thereof was served on Donaldson-Pinilla. 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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