Leslie Werth v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4181
LESLIE WERTH, a/k/a Les Werth,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 11-4444
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER TIMBERS, a/k/a Alibi,
Defendant - Appellant.
No. 11-4445
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK JASON FIEL, a/k/a Jason,
Defendant - Appellant.
No. 11-4446
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACK ROSGA, a/k/a Milwaukee Jack,
Defendant - Appellant.
No. 11-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARRY RHYNE MCCALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cr-00170-HEH-23, 3:10-cr-00170-HEH-21, 3:10-cr-
00170-HEH-6, 3:10-cr-00170-HEH-1, 3:10-cr-00170-HEH-15)
Submitted: June 15, 2012 Decided: August 2, 2012
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
2
J. Brian Donnelly, J. BRIAN DONNELLY, PC, Virginia Beach,
Virginia, for Appellant Mark Jason Fiel; William J. Dinkin,
STONE, CARDWELL & DINKIN, PLC, Richmond, Virginia, for Appellant
Jack Rosga; Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield,
Virginia, for Appellant Leslie Werth; Ali J. Amirshahi,
Richmond, Virginia, for Appellant Christopher Timbers; Charles
D. Lewis, LAW OFFICE OF CHARLES D. LEWIS, Richmond, Virginia,
for Appellant Harry Rhyne McCall. Neil H. MacBride, United
States Attorney, Alexandria, Virginia, Peter S. Duffey,
Assistant United States Attorney, Richard D. Cooke, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
In 2010, over twenty members of the Outlaws motorcycle
gang (“Outlaws”) were indicted for conspiracy to violate the
Racketeer Influenced and Corrupt Organizations Act (“RICO”) and
several other offenses. Five of the Outlaws members who were
convicted appeal their convictions and sentences on various
grounds. Finding no error, we affirm.
I.
A.
The Outlaws is a “one-percenter” motorcycle gang,
meaning that its members are part of the one percent of
motorcyclists who decline to abide by societal rules and laws.
Central to the organization is the culture of violence that it
fosters. As relayed through trial testimony, frequent
territorial disputes, particularly with the Outlaws’ main rival,
the Hell’s Angels, involved the use of force or threatened force
as the Outlaws sought to expand and maintain its territories for
the sake of notoriety and financial gain. Within the
organization, violence and the threat of violence were also used
to maintain compliance with internal rules.
The organization has a multi-level, well-organized
chain of command. All Outlaws members belong to a specific
chapter, the chapters are grouped into several color-coded
4
regions, and the regions all fall under the authority of the
national president. Each chapter has a clubhouse, within which
weekly chapter meetings, called “church,” take place. Higher
level meetings between regional bosses or the national
leadership of the organization also occur on a consistent basis.
Appellant Jake Rosga was a member of the Gold Region (Milwaukee,
Wisconsin, chapter) and, at all times relevant, served as the
national president of the organization. The other appellants—
Leslie Werth, Christopher Timbers, Harry Rhyne McCall, and Mark
Jason Fiel—were all members of chapters within the Copper
Region, which covers North Carolina, South Carolina, and
Virginia. Werth was the president of the Copper Region.
In September 2008, Special Agents Jeffrey Grabman and
Daniel Ozbolt of the Bureau of Alcohol, Tobacco and Firearms
(“ATF”) began infiltrating the Outlaws in the Richmond, Virginia
area. The agents posed as members of a separate motorcycle club
called the Mongols. At that time, the Outlaws did not have a
chapter in Richmond, so conversations between the Outlaws and
the undercover agents focused initially on the Outlaws
developing a relationship with the Mongols as a support club in
the area. 1 The Hell’s Angels were beginning to develop a
1
Support clubs are smaller motorcycle gangs that assist the
Outlaws in their efforts to dominate a particular territory.
This support comes in the form of providing intelligence on
(Continued)
5
foothold in Richmond, so the Outlaws were eager to build a
network in the area by establishing support clubs, with hopes of
ultimately recruiting members from the support clubs and moving
into the area themselves.
By late October, Outlaws members expressed interest in
the undercover agents joining the Outlaws and starting a chapter
in the Richmond area. The agents were voted into the club in
January 2009 as prospective members and ultimately started an
Outlaws chapter in Petersburg, Virginia. By May 2009, the
undercover agents had set up a clubhouse in the Petersburg area.
Unbeknownst to the other Outlaws members, the undercover agents
had wired the clubhouse for video and audio recording. During
their time undercover, the agents participated in numerous
Outlaws activities in a number of different states.
B.
Search warrants for multiple Outlaws clubhouses were
executed on June 15, 2010, yielding, among other things,
firearms and illegal drugs. Many Outlaws members were
subsequently arrested and charged with various offenses. During
rival gangs in the area, buying Outlaws gear to raise money, and
serving as a pool of potential new Outlaws members.
6
the subsequent trials, 2 the government, with the aid of testimony
from the undercover agents and recordings from the Petersburg
clubhouse, presented extensive evidence about the Outlaws’
activities, which included murder, attempted murder, robbery,
assault, extortion, arson, witness intimidation, narcotics
violations, illegal gambling, and weapons violations. Each of
the defendants in this consolidated appeal was convicted of
conspiracy to violate RICO (“Count 1”), see 18 U.S.C. § 1962(d);
and conspiracy to commit violence in aid of racketeering (“Count
2”), see 18 U.S.C. § 1959(a)(6). Timbers and McCall were also
convicted of violence in aid of racketeering (“Count 3”), see 18
U.S.C. §§ 1959 and 2. McCall was additionally convicted of
possession of a firearm in furtherance of a crime of violence
(“Count 4”), see 18 U.S.C. §§ 924(c) and 2.
II.
We first address related claims made by multiple
defendants concerning the disclosure of evidence and the scope
of cross-examination. Pursuant to its obligations under Brady
2
The Outlaws members charged in the superceding indictment
who did not plead guilty were tried in two separate trials. Of
the five defendants in this case, only Werth was tried and
convicted in the first trial. Rosga was also tried in the first
trial, but after the jury could not reach a verdict on the
counts against him, the government retried Rosga with the second
group of defendants.
7
v. Maryland, 373 U.S. 83 (1963), and its progeny, the government
disclosed certain information to the defense about the
undercover ATF agents. Specifically, the government disclosed
that Grabman had been suspended by ATF in 1991 when his training
officer lied about the circumstances surrounding a speeding
incident and Grabman falsely corroborated the story. The
government also disclosed that Ozbolt, during the course of his
investigation into the instant matter, received a DUI citation,
a reckless driving citation, and a speeding ticket.
Rosga and Fiel filed a motion seeking disclosure of
supporting documents and other evidence related to these
incidents. The government thereafter filed motions seeking to
preclude the defense from cross-examining the agents about the
incidents at trial and objecting to the document request. As to
the document request, the government explained that the
documents relating to Agent Grabman had long ago been purged by
ATF as part of its standard procedures and were no longer
available. With regard to Agent Ozbolt, the government
submitted the supporting documents to the court for in camera
review, arguing that the documents contained no impeachment
material that had not already been disclosed. The district
court ordered the government to disclose documents relating to
Agent Ozbolt’s apparent failure to advise his superiors about
one of the citations, but the court otherwise agreed with the
8
government and held that the remaining documents did not contain
“exculpatory, relevant, or admissible” information. J.A. 2050.
The district court also granted the government’s motion to limit
the cross-examination of the agents about these incidents.
Rosga, Timbers, and McCall challenge these rulings on
appeal. 3 We review a district court’s decision concerning the
disclosure of documents reviewed in camera for clear
error, see United States v. Trevino, 89 F.3d 187, 193 (4th Cir.
1996), and a district court’s limitations on a defendant’s
cross-examination of government witnesses for abuse of
discretion, see United States v. Smith, 451 F.3d 209, 220 (4th
Cir. 2006).
A.
Turning first to the disclosure of documents, the
district court did not clearly err in denying the defense motion
for disclosure of documents related to Grabman. The government
represented that all such documents relating to the 1991
incident had been purged according to ATF protocol. The defense
does not contend otherwise, nor does the defense argue that the
3
Despite the fact that Fiel raised these issues below, he
failed to raise them on appeal and has therefore waived them.
See United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir.
2008).
9
documents were available to the government from another source.
Because the documents were no longer available, the defense
cannot prove “that the evidence was suppressed by the
government.” United States v. Moussaoui, 591 F.3d 263, 285 (4th
Cir. 2010) (internal quotation marks and alterations
omitted); see also United States v. Capers, 61 F.3d 1100, 1103
(4th Cir. 1995) (explaining that government’s duty to disclose
does not extend to information not in its possession).
The district court likewise did not clearly err in
denying the defense motion for disclosure of documents related
to Ozbolt. The district court held that the documents provided
no impeaching information beyond that already disclosed by the
government. Despite having access to these documents during the
pendency of this appeal, the defendants have not identified any
impeaching facts in the documents that had not already been
disclosed. The defendants have thus failed to establish that
the government suppressed favorable evidence.
The defendants seem to contend that under Brady and
its progeny, the government was somehow obligated to conduct its
own investigation of the incidents and turn over the results of
that investigation to the defense. This argument is without
merit. While the government is obligated to disclose favorable
evidence in its possession, it is not required to create
evidence that might be helpful to the defense. See United
10
States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011) (“We find the
proposed extension of Brady difficult even to understand. It
implies that the state has a duty not merely to disclose but
also to create truthful exculpatory evidence.” (internal
quotation marks omitted)); United States v. Alverio-Meléndez,
640 F.3d 412, 424 (1st Cir. 2011) (“The failure to create
exculpatory evidence does not constitute a Brady violation.”).
B.
Turning to the district court’s decision to limit the
defendants’ opportunity to cross-examine Agents Grabman and
Ozbolt, we find that the court did not abuse its discretion.
Federal Rule of Evidence 608(b)(1) gives district courts
discretion to allow inquiry into specific instances of
misconduct during cross-examination “if they are probative of
the character for truthfulness or untruthfulness of . . . the
witness.” We have previously explained that the proper factors
to be considered by a district court in exercising this
discretion include “the importance of the testimony to the
government's case, the relevance of the conduct to the witness's
truthfulness, and the danger of prejudice, confusion, or delay
raised by evidence sought to be adduced.” United States v.
Leake, 642 F.2d 715, 719 (4th Cir. 1981).
11
With regard to questioning Grabman about the 1991
incident, the court doubted the relevance of the possible
testimony in light of the fact that the incident was remote in
time. The court also expressed concern about delaying a long
trial with what it viewed as “a complete diversion of th[e]
jury’s time and attention.” J.A. 328. Thus, the court
considered the proper factors and did not abuse its discretion.
We likewise find no abuse of discretion in the
district court’s decision to limit the cross-examination of
Agent Ozbolt. Ozbolt received the citations at issue while he
was working undercover on this case, and the “false statements”
at issue—Ozbolt’s use of his undercover identification—were
necessary for Ozbolt’s own safety and to ensure that the
investigation was not compromised. If the defense had been
permitted to cross-examine Ozbolt about these incidents, the
government likely would have had to question Ozbolt about agency
rules and policies for working undercover and about the dangers
to Ozbolt and the investigation on whole if Ozbolt’s cover had
been blown. Permitting inquiry into these issues would have
needlessly complicated the case and confused the jury. The
district court, therefore, did not abuse its
discretion. See United States v. Bynum, 3 F.3d 769, 772 (4th
Cir. 1993) (“The purpose of [Rule 608(b)] is to prohibit things
12
from getting too far afield—to prevent the proverbial trial
within a trial.”). 4
III. Jack Rosga
Along with the arguments addressed in Section II(A) &
(B), Rosga advances two additional arguments on appeal. His
first contention is that the district court abused its
discretion, see United States v. Summers, 666 F.3d 192, 197 (4th
Cir. 2011), in refusing to admit a recorded statement of Outlaws
member Joseph Allman in which Allman allegedly ordered the
shooting of a Hell’s Angels member. Although the district court
initially admitted the evidence for a limited purpose, the court
later admitted the evidence without limitation. Therefore, this
claim is without merit.
Rosga’s second contention is that the district court
made two errors at sentencing. Applying an abuse of discretion
standard, we review sentences for reasonableness and examine
sentences for substantive and procedural errors. See United
States v. Hornsby, 666 F.3d 296, 312 (4th Cir. 2012). We review
4
To the extent that the defendants are also suggesting that
the district court’s limitation on cross-examination violated
their rights under the Confrontation Clause, we find that
contention to be unpersuasive.
13
factual findings, however, for clear error. See United States
v. Powell, 680 F.3d 350, 359 (4th Cir. 2012).
Rosga first contends that the court committed
procedural error by considering the attempted murder of a Hell’s
Angels member by two other Outlaws members to be relevant
conduct under U.S.S.G. § 1B1.3(a) (2010). Under the Guidelines,
“relevant conduct” includes “all acts” that were “reasonably
foreseeable” to Rosga and within “the scope of the criminal
activity [that he] agreed to jointly undertake.” U.S.S.G.
§ 1B1.3(a) & cmt. n.2. At sentencing, the district court relied
on extensive trial testimony showing that Rosga, as the
president of the organization, “promoted a culture of violence,”
“gave the green light to retaliate and assault” others,
“instructed Grabman, and other Outlaw members, to shoot Hells
Angels’ members . . . if necessary,” and “had declared war on
the Hells Angels.” J.A. 4644-46. In light of this evidence, we
conclude that the district court did not commit clear error in
finding the shooting to be relevant conduct.
Rosga also challenges the substantive reasonableness
of his sentence. Although his Guidelines range was 324-405
months, the district court imposed a 240-month sentence,
composed of the statutory maximum on Count 1, see 18 U.S.C.
1963(a), and a concurrent 36-month sentence on Count 2. On
appeal, Rosga argues that a 240-month sentence is greater than
14
necessary to protect the public and creates unwarranted sentence
disparities. See 18 U.S.C. § 3553(a)(2)(C), (6). Having
reviewed the arguments and the sentencing transcript, we find
the sentence imposed to be reasonable and, therefore, find that
the district court did not abuse its discretion.
IV. Leslie Werth
Werth’s only argument on appeal is that the evidence
adduced at the first trial was insufficient to convict him on
the predicate drug offense for maintaining a drug-involved
premises, see 21 U.S.C. § 856(a), necessary for conviction on
the RICO conspiracy count, see 18 U.S.C. § 1962(d), because he
himself did not use, sell, or condone the use or sale of illegal
drugs. Although Werth made a motion for judgment of acquittal
before the district court pursuant to Federal Rule of Criminal
Procedure 29, advancing certain arguments, he did not assert the
argument that he makes now on appeal. Werth, therefore, has
waived this claim of error. See United States v. Chong Lam, 677
F.3d 190, 200 (4th Cir. 2012) (“When a defendant raises specific
grounds in a Rule 29 motion, grounds that are not specifically
raised are waived on appeal.”).
In any event, even if Werth had not waived this
challenge, we find that sufficient evidence supported his
conviction for maintaining a drug-involved premises. Werth
15
argues that he did not personally use or condone the use of
drugs and that the primary purpose of the clubhouses was not the
use and distribution of drugs. As to the former argument, Werth
need not have committed the substantive offense himself. “[I]t
suffices that he adopt the goal of furthering or facilitating
the criminal endeavor.” Salinas v. United States, 522 U.S. 52,
65 (1997). As to the latter argument, drug use need not be the
primary purpose of the clubhouses. It is sufficient under 21
U.S.C. § 856 that the use and distribution of drugs was one of
the purposes of the clubhouses. See United States v. Roberts,
913 F.2d 211, 220 (5th Cir. 1990). Therefore, even if Werth had
preserved this challenge, it would be without merit.
V. Christopher Timbers
In addition to the arguments addressed in Section
II(A) & (B), Timbers raises several other arguments.
A.
His first additional contention is that the district
court abused its discretion, see Summers, 666 F.3d at 197, by
permitting the government to present evidence of an assault.
According to the evidence adduced at trial, Grabman and Ozbolt
met with Timbers, Fiel, and another Outlaws member in a
restaurant to discuss the possibility of Grabman and Ozbolt
16
joining the Outlaws. At some point during this meeting, Timbers
and Fiel, unprovoked, attacked Clifford Diggs, an African-
American male and restaurant patron. Fiel allegedly uttered
racial epithets during the course of this event, and Diggs
ultimately suffered a broken nose and a broken jaw. 5 The
district court permitted the government to introduce evidence of
the assault itself but restricted the government from
introducing evidence of the racial epithets uttered by Fiel or
the racial motivation underlying the attack. Timbers challenges
this ruling on appeal, arguing that the district court abused
its discretion under Federal Rule of Evidence 404(b) by
permitting the government to introduce evidence of the assault.
“Rule 404(b) limits only the admission of evidence of
acts extrinsic to the one charged, but does not limit the
admission of evidence of intrinsic acts.” United States v.
Lighty, 616 F.3d 321, 352 (4th Cir. 2010). An act is intrinsic
to the charged act, in this case the RICO conspiracy (Count 1),
if “both acts are part of a single criminal episode,” United
States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996) (internal
quotation marks omitted), or if evidence of the intrinsic act
5
Based on this incident, the government also charged Fiel
and Timbers with a civil rights violation, but that count in the
indictment was severed from the others and is not at issue in
this appeal.
17
“serve[s] to complete the story with respect to the scope of the
. . . conspiracy,” United States v. Lipford, 203 F.3d 259, 268
(4th Cir. 2000), and “provide[s] context relevant to the
criminal charges,” United States v. Cooper, 482 F.3d 658, 663
(4th Cir. 2007). In this case, the assault occurred while the
undercover agents were meeting with Outlaws members to discuss
joining the group. Moreover, the assault occurred in a
geographical area where the Outlaws sought to expand and needed
to establish their dominance in order to control the territory.
Given these facts, we find that the assault was intrinsic to the
RICO conspiracy and, therefore, conclude that the district court
did not abuse its discretion in permitting the government to
introduce evidence of the assault.
B.
Timbers’ second additional challenge is to the
sufficiency of the evidence as to each of the counts in the
indictment for which he was convicted, Counts 1-3. “We review
the sufficiency of the evidence to support a conviction by
determining whether there is substantial evidence in the record,
when viewed in the light most favorable to the government, to
support the conviction.” United States v. Jaensch, 665 F.3d 83,
93 (4th Cir. 2011) (internal quotation marks omitted).
“[S]ubstantial evidence is evidence that a reasonable finder of
18
fact could accept as adequate and sufficient to support a
conclusion of a defendant's guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
With regard to Count 1, the RICO conspiracy, the
government contends that Timbers waived his sufficiency
challenge on appeal. Assuming, but without deciding, that
Timbers preserved this claim on appeal, we find that substantial
evidence supported his conviction. To prove a RICO conspiracy
under 18 U.S.C. § 1962(d), the government had to establish that
Timbers conspired to engage in a “‘pattern of racketeering
activity,’” which “requires at least two acts of racketeering
activity.” 18 U.S.C. § 1961(5). The jury found that Timbers
conspired to plan or commit more than two predicate acts of
racketeering, including multiple acts of extortion, a single act
of witness tampering, multiple acts of interstate travel in aid
of racketeering, and multiple acts of distribution of controlled
substances. The jury’s finding that Timbers conspired to
distribute controlled substances was supported by direct
testimony from Outlaws member Lyle Beaty that Timbers
distributed cocaine on several occasions. Likewise, the jury’s
finding that Timbers conspired to commit an act of witness
tampering was supported by direct testimony from Agent Ozbolt.
19
Therefore, the evidence was sufficient to support Timbers’
conviction for the RICO conspiracy. 6
Similarly, with regard to Count 2, conspiracy to
commit violence in aid of racketeering, and Count 3, violence in
aid of racketeering, substantial evidence supported Timbers’
convictions. As to Count 3, the government presented evidence
that Timbers participated in an assault of and standoff with a
rival motorcycle gang in a bar in Richmond. Specifically,
Timbers was engaged in planning sessions before the incident,
and he served as a cover for another Outlaws member who stood
across the street from the bar and attempted to draw in members
of a rival motorcycle gang. After a fight ensued in the bar and
a rival gang member was seriously injured, Timbers joined other
Outlaws members outside the bar in a “battle wedge” formation to
search for members of the rival gang. The group found and
approached rival gang members, and one of the Outlaws members
6
Our conclusion in this regard makes it unnecessary to
consider Timbers’ sufficiency-of-the-evidence arguments as to
the other predicate offenses. We note, however, that the thrust
of Timbers’ arguments is that he did not personally engage in or
plan the multiple acts of extortion and interstate travel in aid
of racketeering. However, this level of personal involvement is
not necessary to prove guilt on predicate offenses sufficient to
uphold a RICO conspiracy conviction. See Salinas, 522 U.S. at
65 (“A conspirator must intend to further an endeavor which, if
completed, would satisfy all of the elements of a substantive
criminal offense, but it suffices that he adopt the goal of
furthering or facilitating the criminal endeavor.”).
20
made threatening comments while showing that he was carrying a
pistol. Although Timbers may not have engaged in any violence
personally, he certainly aided and abetted the violence central
to this incident. Therefore, the evidence is sufficient to
uphold Timbers’ conviction on Count 3. See 18 U.S.C.
§§ 1959(a)(3) and 2; Va. Code Ann. §§ 18.2-22, -51, -282. And
although this incident alone did not serve as the basis for
Timbers’ conviction on Count 2, having determined, based on the
evidence discussed above, that sufficient evidence supported his
conviction on the substantive offense in Count 3, we also
conclude that sufficient evidence supported his conviction for
conspiracy to commit the substantive offense in Count 2. See 18
U.S.C. § 1959(a)(6).
VI. Harry McCall
In addition to the arguments addressed in Section
II(A) & (B), McCall also challenges the denial of his motion for
acquittal as to Count 4, possession of a firearm in furtherance
of a crime of violence. We review this claim de novo and
“decide whether, viewing the evidence in the light most
favorable to the government, any rational trier of facts could
have found the defendant guilty beyond a reasonable
doubt. United States v. Ramos-Cruz, 667 F.3d 487, 499 (4th Cir.
2012) (internal quotation marks omitted). In this case,
21
multiple witnesses testified that McCall possessed a firearm
when he and other Outlaws members entered a bar in Petersburg,
Virginia, and assaulted members of a rival group in an attempt
to assert control over the territory. Therefore, substantial
evidence supports McCall’s conviction for possession of a
firearm during the commission of the assault, and the district
court did not err in denying the motion for acquittal.
VII. Mark Fiel
Finally, Fiel raises two claims on appeal, both of
which can be resolved summarily. His first challenge is to the
district court’s denial of his motion to suppress evidence
seized from his vehicle. Specifically, Fiel’s motion sought to
suppress a semiautomatic Glock handgun, evidence seized from the
search of his backpack, and his cellular phone, the contents of
which were searched pursuant to a warrant. On appeal, the
government contends that none of this evidence was introduced at
his trial. Fiel does not dispute this contention nor does he
direct the court to a place in the record where any of this
evidence was used at trial. Therefore, any error the district
court may have made in denying the motion to suppress would be
harmless. See United States v. Ford, 986 F.2d 57, 60 n.2 (4th
Cir. 1993) (applying harmless error to denial of suppression
motion); United States v. Civella, 666 F.2d 1122, 1130 (8th Cir.
22
1981) (finding denial of motion to suppress to be harmless where
“[n]one of the material [at issue] was introduced into
evidence”).
Fiel’s second argument, which he makes for the first
time on appeal, is that the district court failed to provide
notice of its intent to depart from the Guidelines range, as
required by Federal Rule of Criminal Procedure 32(h). The
district court, however, imposed a variance rather than a
departure, and Rule 32(h) does not require a district court to
provide notice of its intent to impose a variance at
sentencing. See Irizarry v. United States, 553 U.S. 708, 714
(2008).
VIII. Conclusion
For the foregoing reasons, we affirm the convictions
and sentences addressed herein. 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
23