Filed: Jun. 03, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4745 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FERNANDO RIVAS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:11-cr-02290-PMD-1) Submitted: May 30, 2014 Decided: June 3, 2014 Before WILKINSON, KING, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell Warren Mace, III, TH
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4745 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FERNANDO RIVAS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:11-cr-02290-PMD-1) Submitted: May 30, 2014 Decided: June 3, 2014 Before WILKINSON, KING, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell Warren Mace, III, THE..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4745
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FERNANDO RIVAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:11-cr-02290-PMD-1)
Submitted: May 30, 2014 Decided: June 3, 2014
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William Nettles, United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fernando Rivas appeals his convictions and 180-month
sentence imposed after he pled guilty to producing child
pornography, in violation of 18 U.S.C. § 2251(a) (2012), and
transporting child pornography, in violation of 18 U.S.C.
§ 2252A(a)(1) (2012). On appeal, Rivas argues that the district
court erred in denying his motion for an evidentiary hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that
his sentence is procedurally and substantively unreasonable. We
affirm.
Rivas argues that he was entitled to a Franks hearing
because three paragraphs of the search warrant affidavit
contained false or misleading information and that, if those
paragraphs had been omitted, the affidavit would have been
insufficient to find probable cause. A defendant challenging
the validity of a search warrant is entitled to a Franks hearing
if he makes a preliminary showing that: “(1) the warrant
affidavit contain[s] a ‘deliberate falsehood’ or statement made
with ‘reckless disregard for the truth’ and (2) without the
allegedly false statement, the warrant affidavit is not
sufficient to support a finding of probable cause.” United
States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (quoting
Franks, 438 U.S. at 155-56); see United States v. Colkley,
899
F.2d 297, 300 (4th Cir. 1990) (defining substantial preliminary
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showing). A defendant bears a heavy burden to establish the
need for a Franks hearing. United States v. Jeffus, 22 F.3d
554, 558 (4th Cir. 1994). We review de novo the legal
determinations underlying a district court’s denial of a Franks
hearing and review its factual findings for clear error. United
States v. Allen,
631 F.3d 164, 171 (4th Cir. 2011).
Here, Rivas falls short of making the substantial
preliminary showing that the challenged statements were false or
that the affiant included the statements with the intent to
mislead the magistrate judge. See Franks, 438 U.S. 155-56;
Fisher, 711 F.3d at 468. Furthermore, even assuming that Rivas
made the necessary showing, we agree with the district court
that the alleged false or misleading statements were not
essential to the probable cause determination. See
Fisher, 711
F.3d at 468. Therefore, we conclude that the district court did
not err in denying Rivas’ request for a Franks hearing.
Next, Rivas contends that his sentence is both
procedurally and substantively unreasonable. We review a
sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). In so doing, we first examine the sentence for
“significant procedural error” ensuring, among other things,
that the district court did not “improperly calculat[e] the
Guidelines range, . . . fail[] to consider the [18 U.S.C.]
3
§ 3553(a) [(2012)] factors, . . . or fail[] to adequately
explain the chosen sentence.” Id. at 51. Next, when
considering the substantive reasonableness of the sentence, we
“take into account the totality of the circumstances.” Id.; see
United States v. Yooho Weon,
722 F.3d 583, 590 (4th Cir. 2013)
(discussing appellate presumption of reasonableness).
Rivas first challenges the district court’s decision
to apply a two-level enhancement because the offense involved
sexual contact. See U.S. Sentencing Guidelines Manual (“USSG”)
§ 2G2.1(b)(2)(A) & cmt. n.2 (2012); see also 18 U.S.C. § 2246(3)
(2012) (defining sexual contact). We assume, without deciding,
that the district court erred in applying this enhancement but
conclude that any such procedural error is harmless. A
procedural sentencing error is harmless where this court has
“(1) knowledge that the district court would have reached the
same result even if it had decided the [G]uidelines issue the
other way, and (2) a determination that the sentence would be
reasonable even if the [G]uidelines issue had been decided in
the defendant’s favor.” United States v. Savillon-Matute, 636
F.3d 119, 123 (4th Cir. 2011) (internal quotation marks
omitted); see United States v. McManus,
734 F.3d 315, 318 (4th
Cir. 2013) (stating that procedural “[s]entencing error is
harmless if the resulting sentence is not longer than that to
4
which the defendant would otherwise be subject”) (internal
quotation marks and brackets omitted).
Here, Rivas was sentenced to 180 months’ imprisonment,
the statutory mandatory minimum sentence set forth in 18 U.S.C.
§ 2251(e) (2012). Thus, even if the district court had
sustained Rivas’ objection to the two-level enhancement, we can
conclude with confidence that the district court would have
imposed the same mandatory minimum 180-month sentence.
Moreover, Rivas’ substantial downward variance sentence is
reasonable because it took into account Rivas’ mitigating
arguments. Accordingly, we conclude that any error on the part
of the district court in applying the § 2G2.1(b)(2)(A)
enhancement is harmless.
Next, Rivas contends that the district court erred by
imposing a two-level enhancement pursuant to USSG § 2G2.1(b)(3)
and a five-level enhancement pursuant to USSG § 2G2.2(b)(3)(B)
based on Rivas’ distribution of child pornography because there
was no evidence presented that he ever distributed child
pornography. * Distribution is defined as “any act, including
possession with intent to distribute, production, transmission,
advertisement, and transportation, related to the transfer of
*
Rivas does not challenge any other aspect of the
enhancement in USSG § 2G2.2(b)(3)(B). See McManus, 734 F.3d at
319 (discussing proof required to trigger enhancement).
5
material involving the sexual exploitation of a minor.” USSG
§ 2G2.1 cmt. n.1; USSG § 2G2.2 cmt. n.1. Because Rivas admitted
at the plea hearing that he had possessed, transported, and
produced child pornography, the district court did not err in
imposing the distribution enhancements.
Further, Rivas argues that his sentence is
procedurally unreasonable because the court failed to properly
consider the 18 U.S.C. § 3553(a) factors. Rivas’ contention is
belied by the record. The district court clearly stated that it
had considered the § 3553(a) factors when imposing Rivas’
sentence and specifically mentioned the seriousness of the
offense, the need to promote respect for the law, the need to
provide just punishment, and the need to avoid unwarranted
sentencing disparities. We therefore conclude that the district
court did not commit procedural error in this regard.
Finally, Rivas contends that his sentence is
substantively unreasonable because the district court did not
give sufficient weight to his arguments for a lower sentence.
However, after considering Rivas’ arguments about his childhood,
his lack of criminal history, and the seriousness of the
offense, the district court determined that a
well-below-Guidelines sentence of 180 months was appropriate.
Therefore, we conclude that Rivas’ sentence is substantively
reasonable.
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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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