United States v. Hernandez-VillanuevaUnited States v. Hernandez-Villanueva
COUNSEL
OPINION
HAMILTON, Senior Circuit Judge:
Henry Geovany Hernandez-Villanueva (Villanueva) appeals the eighteen-month sentence imposed by the district court following his plea of guilty to the сharge of unauthorized reentry into the United States,
I
Villanueva, a native of El Salvador, was deported from the United States on April 17, 2004. Following his deportation, Villanueva illegally reentered the United States and was arrested at his mother‘s residence in Silver Spring, Maryland on May 31, 2005. At the time of his arrest, Villanueva was eighteen years old аnd was residing at his girlfriend‘s residence, along with the couple‘s infant daughter. According to Villanueva, he reentered the United States to live with and support his family.
Following his arrest, Villanueva was interviewed by law enforcement agents. Villanueva did not receive a Miranda* warning prior to or during the interview. During the interview, Villanueva made statements сoncerning “La Mara Salvatrucha” or “MS-13,” a violent gang that operates nationwide through numerous violent local street gangs. Villanueva also made statements concerning the violent activities of his local MS-13 gang, “Langley Park Salvatrucha” (MS-13 LPS), and other local MS-13 gangs operating in the Washington, D.C. metropolitan areа. Villanueva offered to become a confidential informant in order to provide continuing intelligence on MS-13 activity in the Washington, D.C. metropolitan area. Following the interview, Bureau of Immigration and Customs Enforcement Agent Robert Neives prepared a summary of the interview.
On August 15, 2005, Villanueva was charged by a federal grand jury sitting in thе District of Maryland with unauthorized reentry into the United States,
In preparation for sentencing, a Presentence Report (PSR) was prepared. The PSR set Villanueva‘s offense level at 8,
According to Sergeant Norris, MS-13 began in the 1980s in Los Angeles, California when numerous El Salvadorian immigrants banded together to form a gang to combat the hostilities leveled against them by Mexican street gangs. Over time, as the number of El Salvadorian immigrants in this country grew, so did the size of MS-13, as MS-13 formed local MS-13 gangs or “cliques” in other areas of the country, including several in the Washington, D.C. metropolitan area. In general, each local MS-13 gang holds regular meetings to discuss the business of the local gang and MS-13 in general, and each MS-13 member is required to pay dues to his local gang. Some of the money paid in dues is remitted to MS-13; other money is used by the local gang for a variety of legal and illegal activities. In a nutshell, like most other street gangs, the basic purpose of MS-13 and each of its local gangs is “to control the streets, to be the number one gang.” This purpose is achieved “through intimidation, fear, and violence.”
Based on his training and experience, Sergeant Norris opined that Villanueva was, at the time of his arrest in May 2005, still an active member of MS-13 LPS. He based this opinion on several factors. First, Sergeant Norris observed that, during the post-arrest interview, Villanueva provided detailed, current information concerning MS-13 gang activity in the Washington D.C. metropolitan area, including descriptions of recent violent criminal activity. Second, Sergeant Norris observed that Villanueva used the present tense when tаlking about his membership in MS-13 LPS and the activities of other members in his gang and other local MS-13 gangs. Third, Sergeant Norris pointed to Villanueva‘s desire to be a confidential informant for law enforcement. According to Sergeant Norris, to be a confidential informant, Villanueva had to be a member of a local MS-13 gang, because, given the violent and close-knit nature of a local MS-13 gang, nonmembers would not be in a position to provide meaningful intelligence. Fourth, Sergeant Norris testified that, about a week prior to Villanueva‘s arrest, he personally observed several MS-13 LPS members visit Villanueva at his (Villanueva‘s) girlfriend‘s residence. According to Sergeant Nоrris, if Villanueva was not an active member of MS-13 LPS, in the sense that he was not attending his local gang meetings and/or paying dues to MS-13 LPS, other members would kill him, which is the action taken against an individual that tries to leave MS-13.
Finally, Sergeant Norris relied on photographs taken of Villanueva both before his April 2004 deportation and after his arrest in May 2005. These photographs demonstrated that Villanueva acquired tattoos in the time frame between his deportation and his later arrest, several of which specifically related to MS-13. For example, Sergeant Norris explained that Villanueva had acquired on his abdomen a tattoo of an “M” and a “S.” Sergeаnt Norris also referenced another recent MS-13 tattoo, which depicted a tombstone memorializing the death of MS-13 LPS member “Satancio,” with the date February 2, 2005.
In response to the government‘s case at sentencing, Villanueva first objected to the
In sentencing Villanueva, the district court first overruled Villanueva‘s Miranda objection to the court‘s consideration of the statements he made during the post-arrest interview. Next, in accordance with the PSR, the court found that Villanueva‘s sentencing range was 0 to 6 months’ imprisonmеnt. Then, the court turned to the factors set forth in
[o]n the other hand, he has exhibited by the tattoos and his association a continued lure of the MS-13 culture, which I find is violent and dangеrous to himself as well as to others in the community. He has not yet developed or demonstrated a maturity, a backbone, a character to turn things around.
The court then examined the specific factors set forth in
It may well be extraordinarily difficult to disassociate one‘s self from the MS-13 once one has been a member. This person standing before me has not . . . demonstrated any true desire to do that. I find that he has accumulated new tattoos since he was deported. He even acknowledged joining a clique in El Salvador . . . .
He well understands the structure and had continued to participate in it. It was a gang that is terrorizing the community and [gang] activity cannot be countеnanced. Whether he has personally participated in any violent activity is really not the only question. There is certainly no evidence that he directly has, but he is giving aid and comfort to those who do, and he risks violence to himself as well. It‘s simply not a group to be associated with. It‘s dangerous for everyone involved.
After considering the advisory sentencing range and the
II
Villanueva first challenges the district court‘s consideration of the statements he made during the post-arrest interview. These statements were admitted
A district court‘s ruling on the admissibility of evidence at sentencing is reviewed for an abuse of discretion. United States v. Hopkins, 310 F.3d 145, 154 (4th Cir. 2002). In applying this standard, we are mindful that the wide latitude on evidentiary matters enjoyed by trial courts is even greater for sentencing courts, because the Federal Rules of Evidence do not apply at sentencing. Id. Indeed, in resolving any dispute concerning a factor pertinent to the sentencing decision, “the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”
In this case, Villanueva argues that the district court‘s consideration of the statements he made during the post-arrest interview violated his Miranda rights. The district court admitted the statеments, concluding that, even if the statements were obtained in violation of Miranda, the evidence was reliable, Villanueva‘s statements were voluntarily made, and there was no evidence of improper police conduct in eliciting the statements.
Unfortunately for Villanueva, his argument is foreclosed by our decision earlier this year in United States v. Nichols, 438 F.3d 437 (4th Cir. 2006). In that case, we held that a statement obtained in violation of Miranda is admissible at sentencing unless there is evidence that the statement was “actually coerced or otherwise involuntary.” Id. at 444.
In our case, it is clear that Villanueva does not meet the weighty burden demanded by Nichols. In making his statements, Villanueva was attempting to avоid certain deportation. He spoke willingly and candidly in hopes of obtaining favorable treatment by the government. The circumstances surrounding the statements simply do not suggest that Villanueva was coerced into making the statements or that the statements were otherwise involuntary.
III
Villanueva also argues that the eighteen-mоnth sentence imposed by the district court is unreasonable. In imposing a sentence after United States v. Booker, 543 U.S. 220 (2005), a sentencing court must engage in a multi-step process. First, the court must correctly determine, after making appropriate findings of fact, the applicable sentencing range. United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Next, the court must “determine whether a sentence within that range . . . serves the factors set forth in
We review the sentence imposed for reasonableness, considering “the extent to which the sentence . . . comports with the various, and sometimes competing, goals of
In this case, the district court considered the advisory sentencing range and considered the relevant statutory sentencing factors under
We also conclude that the length of the sentence was reasonable. The advisory sentеncing range under the Guidelines was a term of imprisonment of 0 to 6 months. The district court sentenced Villanueva to eighteen months’ imprisonment. The court reasonably concluded that a variance sentence of an additional twelve months’ imprisonment was necessary to account for the fact that Villanueva not only illegally reentered the United States but also continued his association with a violent street gang after his reentry. Violence is a way of life for the members of local MS-13 gangs, and the court understandably sought to fashion a reasonable sentence to stymie Villanueva‘s ability to associate with any local MS-13 gang, with the hope thаt further removing him from the violent lures of a local MS-13 gang would increase his chances of turning his life around. Moreover, a longer sentence was appropriate to sufficiently promote Villanueva‘s respect for the law, deter further criminal conduct (i.e., deter other deported MS-13 members from reentering the United States to continue in this country their association with the gang), and protect the public from further crimes committed by Villanueva (e.g., protecting the public from another illegal reentry). In sum, although an eighteen-month sentence is three times the high end of the 0 to 6 months sentencing range, the sentence, which is only seventy-five percent of the twо-year statutory maximum sentence, unquestionably serves the
IV
For the reasons stated herein, the judgment of the district court is affirmed.
AFFIRMED