United States v. Henry Geovany Hernandez-Villanueva

473 F.3d 118, 2007 U.S. App. LEXIS 452, 2007 WL 60873
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 10, 2007
Docket06-4211
StatusPublished
Cited by141 cases

This text of 473 F.3d 118 (United States v. Henry Geovany Hernandez-Villanueva) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Henry Geovany Hernandez-Villanueva, 473 F.3d 118, 2007 U.S. App. LEXIS 452, 2007 WL 60873 (4th Cir. 2007).

Opinion

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 charge of unauthorized reentry into the United States, 8 U.S.C. § 1326(a). We affirm.

I

Villanueva, a native of El Salvador, was deported from the United States on April 17, 2004. Following his deportation, Villa-nueva 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 and 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 concerning “La Mara Salvatru-cha” 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 area. 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 the District of Maryland with unauthorized reentry into the United States, 8 U.S.C. § 1326(a). On October 21, 2005, he pled guilty to the charged offense.

In preparation for sentencing, a Presen-tence Report (PSR) was prepared. The PSR set Villanueva’s offense level at 8, U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(a). After determining that Villanueva’s criminal history category was I and that he was entitled to a two level reduction for acceptance of responsibility, id. § 3El.l(a), the PSR calculated Villanueva’s sentencing range to be 0 to 6 months’ imprisonment.

*120 At sentencing, the government argued, consistent with its prehearing submission, that a sentence higher than that called for by the Sentencing Guidelines was warranted because Villanueva was, inter alia, a member of MS-13 LPS. In support of its argument, the government introduced the testimony of George Norris, a sergeant with the Prince George’s County Police Department and an expert in the operations and affairs of MS-13 in the Washington, D.C. metropolitan area.

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 talking 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 Villa-nueva’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 (Villa-nueva’s) girlfriend’s residence. According to Sergeant Norris, 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 Villa-nueva had acquired on his abdomen a tattoo of an “M” and a “S.” Sergeant 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 *121 government’s use of the statements he made during the post-arrest interview. Next, Villanueva argued that a sentence above the advisory sentencing range was unwarranted because there was no evidence that he engaged in any criminal activity. Finally, he argued that it was impermissible for the government to seek a sentence above the advisory sentencing range merely because he chose to occasionally associate with members of MS-13 LPS.

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’ imprisonment. Then, the court turned to the factors set forth in 18 U.S.C. § 3553(a) to determine if a variance sentence was appropriate.

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Bluebook (online)
473 F.3d 118, 2007 U.S. App. LEXIS 452, 2007 WL 60873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-henry-geovany-hernandez-villanueva-ca4-2007.