Filed: Feb. 18, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4174 UNITED STATES OF AMERICA, Plaintiff –Appellee, v. DANILO QUESADA-GUERRERO, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00043-NCT-1) Submitted: February 6, 2009 Decided: February 18, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per cu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4174 UNITED STATES OF AMERICA, Plaintiff –Appellee, v. DANILO QUESADA-GUERRERO, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00043-NCT-1) Submitted: February 6, 2009 Decided: February 18, 2009 Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per cur..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4174
UNITED STATES OF AMERICA,
Plaintiff –Appellee,
v.
DANILO QUESADA-GUERRERO,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00043-NCT-1)
Submitted: February 6, 2009 Decided: February 18, 2009
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles L. White, Greensboro, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Randall S. Galyon,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danilo Quesada-Guerrero pled guilty to conspiracy to
distribute cocaine hydrochloride, 21 U.S.C. § 846 (2006) (Count
1), and possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008)
(Count 3). He received a sentence of life imprisonment for the
conspiracy conviction and a consecutive five-year sentence for
the § 924(c) conviction. Quesada-Guerrero appeals the sentence,
arguing that the district court erred in failing to make
adequate findings to support its enhancement for obstruction of
justice, U.S. Sentencing Guidelines Manual § 3C1.1 (2007), based
on perjury, and erred in denying him an adjustment for
acceptance of responsibility, USSG § 3E1.1. We affirm.
In the spring of 2006, Quesada-Guerrero and several
co-conspirators were under surveillance for suspected drug
trafficking, during which time they were observed removing bags
from a tractor trailer with a California license plate that was
parked at a trailer park in Greensboro, North Carolina, and
later refueling the tractor trailer at the park. When the
tractor trailer left Greensboro, it was stopped on the
interstate highway and searched, but no contraband was found.
After he was released, the driver of the tractor trailer called
Quesada-Guerrero three times in quick succession.
2
Later that morning, Quesada-Guerrero and others under
surveillance were observed driving from various addresses they
frequented to Quesada-Guerrero’s residence, taking evasive
measures as they did so. Quesada-Guerrero then drove away with
two men in his Nissan Titan pickup truck. When a Greensboro
police unit attempted to stop the truck, Quesada-Guerrero
refused to stop and fled at high speed, eventually crashing the
truck into a tree. 1 A police officer, Corporal Gill, chased
Quesada-Guerrero on foot through a residential area. Carrying a
handgun, Quesada-Guerrero approached Jeanne Thilo, who was in
her driveway packing her van for a trip, and tried to carjack
the vehicle. Thilo pushed him away and Quesada-Guerrero again
fled, with Corporal Gill ordering him to stop. Quesada-Guerrero
turned toward Gill and pointed his gun at Gill, who took cover.
When other police officers arrived, Quesada-Guerrero was located
hiding under a boat behind a neighboring house. A loaded .38
caliber revolver was on the ground near him and he had a loaded
.25 caliber pistol in his pocket. One of the passengers in the
truck, Amado Sosa-Dominguez, was also apprehended. The other,
Arley Lovaina, escaped.
1
Beside the crashed truck, police found two semi-automatic
assault rifles. Inside the truck, they found packages
containing a total of 7.762 kilograms of powder cocaine, bags
containing an additional 214.03 grams of powder cocaine, 1.8
grams of cocaine base, $13,020 in cash, and a digital scale.
3
According to information contained in the presentence
report, Quesada-Guerrero waived his Miranda 2 rights and
acknowledged that the driver of the tractor trailer called him
when the trailer was stopped and searched. He said the trailer
was carrying money in payment for thirty kilograms of cocaine,
which had not been discovered, and that the trailer initially
brought 100 kilograms of cocaine to Greensboro which had been
stored at the trailer park, but was no longer there.
However, in written objections to the presentence
report, Quesada-Guerrero challenged the recommended adjustments.
He denied making the statement about money hidden in the tractor
trailer, attempting the carjacking, and pointing a gun at
Corporal Gill. At sentencing, Thilo, Gill, and Detective
Williams, who took Quesada-Guerrero’s post-arrest statement, all
testified about his conduct. In his own testimony Quesada-
Guerrero repeated his denials. Finding that Quesada-Guerrero’s
testimony raised the possibility that he had given knowingly
false testimony concerning material matters, and thereby
obstructed justice, calling into question his acceptance of
responsibility, the district court continued the sentencing for
several days to allow the parties time to prepare to address
these issues. When sentencing recommenced, the court determined
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4
that Quesada-Guerrero had given perjured testimony. The court
added an adjustment for obstruction of justice, and denied him
an adjustment for acceptance of responsibility. The court’s
decision increased the advisory guideline range to life
imprisonment. The court decided that none of the 18 U.S.C. §
3553(a) (2006) factors would support a sentence below the
guideline range. The court imposed a life sentence for Count 1,
followed by a consecutive five-year sentence for Count 3.
On appeal, Quesada-Guerrero first argues that the
adjustment for obstruction of justice was made without adequate
findings. The district court’s factual findings supporting the
§ 3C1.1 obstruction of justice enhancement are reviewed for
clear error. United States v. Kiulin, 360 F.3d 456, 460 (4th
Cir. 2004). The adjustment applies when the district court
determines that a defendant committed perjury. USSG § 3C1.1
comment. (n.4(b)); see also United States v. Dunnigan,
507 U.S.
87, 94 (1993). The court must find that the defendant gave
false testimony under oath “concerning a material matter with
the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” Id.; United
States v. Smith,
62 F.3d 641, 646-47 (4th Cir. 1995). When the
sentencing court finds that a defendant has committed perjury,
it is preferable for the court to address all the elements of
perjury separately and clearly, but a finding that “encompasses
5
all of the factual predicates for a finding of perjury” is
sufficient. Dunnigan, 507 U.S. at 95.
Quesada-Guerrero contends that the district court’s
findings were inadequate because it found only that he testified
falsely, but did not find that his false testimony was material
or intended to deceive. In fact, the district court identified
the issue at the first sentencing hearing as whether Quesada-
Guerrero testified falsely and knowingly concerning material
matters by denying the conduct and statements described by
Williams, Thilo and Gill. Dunnigan did not require the court to
repeat its conclusion that the false testimony was material and
willfully deceptive at the second hearing.
Quesada-Guerrero also claims that the district court
failed to identify in what way his testimony was false, and
wrongly believed that Thilo testified that Quesada-Guerrero had
put a gun into her side. 3 However, we are satisfied that the
district court did not clearly err in accepting Thilo’s
testimony that Quesada-Guerrero had attempted to take her van at
gunpoint and rejecting Quesada-Guerrero’s blanket denial.
With respect to the denial of acceptance of
responsibility, a defendant generally is not eligible for the
3
Thilo testified, “I felt something on the side of me,”
turned and “saw a person standing next to the van and he had a
gun . . . .”
6
acceptance of responsibility adjustment under USSG § 3E1.1 when
he receives an upward adjustment for obstruction of justice
under USSG § 3C1.1. See USSG § 3E1.1, comment. (n.4); United
States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001). The
defendant has the burden of showing that his circumstances are
extraordinary.
Id. Quesada-Guerrero contends that it was error
to require him to show that his case was extraordinary when the
district court’s finding of obstruction of justice was not
valid. Because the district court did not err in its
determination of obstruction of justice, this claim is without
merit.
We therefore affirm the 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
7
