                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4341


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

CARLOS JAVIER MEDINA-CASTELLANOS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:05-cr-00155-F-1)


Submitted:    December 1, 2009              Decided:    January 4, 2010


Before KING and      AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed and remanded by unpublished per curiam opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Carlos     Javier         Medina-Castellanos              appeals        his

convictions and sentence following two jury trials on charges of

conspiring      to     commit     interstate          transportation        of    stolen

property, in violation of 18 U.S.C. § 371 (2006) (“Count One”),

and     two   counts     of     committing        violent      crimes     in     aid    of

racketeering activity, in violation of 18 U.S.C. § 1959(a)(3)

(2006)    (“Counts      Three     and       Four”).       At    the     conclusion      of

Medina-Castellanos’ first jury trial, he was convicted on Counts

One and Four.          Count Four was based upon a May 2, 2004 home

invasion robbery that Medina-Castellanos organized, and in which

he    participated,      against        a     fellow     co-conspirator.              After

Medina-Castellanos’           first     jury      trial        concluded,        he    was

re-indicted for the conduct on which the first jury could not

reach     a   verdict.          This        indictment    also     charged        Medina-

Castellanos      with     committing          a   violent       crime     in     aid    of

racketeering activity, in violation of 18 U.S.C. § 1959(a)(3)

(“Count Two”).         Count Two was based upon a February 15, 2004

home invasion robbery that Medina-Castellanos organized, and in

which he participated, against a different co-conspirator.                              At

the conclusion of his second jury trial, Medina-Castellanos was

convicted on Count Two.

              At sentencing, Medina-Castellanos received an advisory

guidelines range of 360 months to life imprisonment.                             However,

                                              2
the statutory maximum for Counts Four and Two was 240 months and

sixty     months      for     Count   One.         Because       the     district          court

sentenced Medina-Castellanos to the statutory maximum sentence

for     each    count       and   ordered     that      the   sentences         be     served

consecutively,         Medina-Castellanos’           aggregate         sentence       of    540

months’ imprisonment fell within his advisory guidelines range.

               On    appeal,      Medina-Castellanos          challenges        the        jury

convictions, arguing that the district court erred in admitting

a letter Medina-Castellanos had written and that the district

court erred in allowed his former wife to testify against him.

He    further       raises    multiple      claims      related    to     his     sentence.

Finding no reversible error, we affirm.

               Medina-Castellanos         first      argues       that    the        district

court erred in admitting, during his first trial, a letter he

wrote to his uncle.               Medina-Castellanos claims that the letter

was not adequately authenticated and that the letter was more

prejudicial         than     probative.          This    court     reviews       decisions

regarding authentication of evidence under Fed. R. Evid. 901 for

abuse of discretion.              United States v. Patterson, 277 F.3d 709,

713 (4th Cir. 2002).                Medina-Castellanos’ claim of prejudice

under Fed. R. Evid. 403 is reviewed for plain error as it is

raised for the first time on appeal.                      United States v. Olano,

507 U.S. 725, 732 (1993).              Plain error requires a finding that:

(1) there was error; (2) the error was “plain;” and (3) the

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error affected Medina-Castellanos’ substantial rights.                            Id.    If

the    three    elements      are    met,       this    court       may     exercise    its

discretion     to    notice   the     error     only    “if       the    error   seriously

affect[s]      the   fairness,      integrity,         or    public        reputation    of

judicial proceedings.”          Id.     We have reviewed the transcript of

the    proceedings      and     find     that         the     letter       was    properly

authenticated and its admission was not unduly prejudicial.

             Medina-Castellanos next argues that the district court

erred in admitting the testimony of his former wife.                                 To the

extent    Medina-Castellanos          claims     his    former          wife’s   testimony

violated the confidential marital communications privilege, his

claim is reviewed for abuse of discretion.                        See United States v.

Singleton, 260 F.3d 1295, 1301 (11th Cir. 2001).                           To the extent

that     Medina-Castellanos         claims      his     former          wife’s   testimony

violated the adverse spousal testimony privilege, his claim is

reviewed for plain error because he did not lodge an objection

in the district court on this basis.

             The     confidential       marital         communication            privilege

applies to “[i]nformation that is privately disclosed between

husband and wife in the confidence of the marital relationship.”

United States v. Parker, 834 F.2d 408, 411 (4th Cir. 1987).

Medina-Castellanos fails to point to any act to which his former

wife testified that would fall within the confidential marital

communications       privilege.        Therefore,           his    claim    fails.      See

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United States v. Acker, 52 F.3d 509, 514-15 (4th Cir. 1995).

Also, Medina-Castellanos’ adverse spousal testimony claim fails

because Medina-Castellanos and his former spouse who testified

were divorced at the time of his trials.                      See United States v.

Porter, 986 F.2d 1014, 1018 (6th Cir. 1993).

             As      to      his     sentence,         Medina-Castellanos            first

challenges     the    district       court’s       calculation       of   his    advisory

guidelines range with respect to Counts Four and Two.                           According

to Medina-Castellanos, the district court should have calculated

his   base   offense        level    for    Counts     Four   and     Two   using    U.S.

Sentencing        Guidelines        Manual       (“USSG”)     § 2A2.2,      Aggravated

Assault, rather than USSG § 2A3.1, Criminal Sexual Abuse.                              In

reviewing     a     district       court’s    application       of    the   sentencing

guidelines,        this   court     reviews      the   district      court’s     factual

findings     for    clear    error    and    its     legal    conclusions       de   novo.

United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir.

2009).

             The district court applied the correct guideline, USSG

§ 2E1.3, to Counts Four and Two charging Medina-Castellanos with

committing violent crimes in aid of racketeering activity.                             See

USSG § 2E1.3; USSG App. A (Statutory Index).                      According to USSG

§ 2E1.3, the district court is to apply the higher of either a

base offense level of 12 or “the offense level applicable to the

underlying crime or racketeering activity.”                     USSG § 2E1.3(a)(1),

                                             5
(2).   Where, as here, more than one base offense level exists

within a particular guideline, a district court is to use the

relevant    conduct     criteria    in     USSG       § 1B1.3   to   determine     the

applicable offense level.          United States v. Smith, 232 F.3d 650,

651 (8th Cir. 2000); USSG § 1B1.2, comment. (n.2).

            Medina-Castellanos’          relevant        conduct     included      the

February 15, 2004 and May 2, 2004 robberies during which victims

were   sexually        assaulted.              Thus,    the     district    court’s

determination that sexual assault is the underlying crime for

purposes of USSG § 2E1.3 is well-supported.                     See United States

v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998) (upholding the

district court’s determination under USSG § 2E1.3(a)(2) that the

defendant’s base offense level was 32 pursuant to USSG § 2A1.5

because the defendant conspired to commit murder even though the

defendant was acquitted of murder); see also United States v.

Carrozza,   4   F.3d    70,   74    (1st       Cir.    1993)    (holding   that,    in

determining base offense level in a RICO case, district court

should not limit its relevant conduct to predicate acts charged

against the defendant, but instead should consider all conduct

reasonably foreseeable to the defendant in furtherance of the

RICO enterprise).        Accordingly, the district court did not err

in determining the offense guideline for Counts Four and Two.

            Medina-Castellanos also challenges (1) the two-level

USSG § 3B1.1(c) enhancement he received for Counts Four and Two

                                           6
based on his leadership or management role, (2) the two-level

enhancement he received pursuant to USSG § 2B1.1(b)(12)(B) for

possession of a dangerous weapon for Count One, and (3) the two-

level     USSG    § 3C1.1   enhancement      he   received    for   obstructing

justice for Counts One and Four. 1           We have reviewed the materials

submitted    in    the   appendices    and    the   parties’    arguments   and

conclude that the district court did not err in applying the

three challenged enhancements. 2

             Finally, Medina-Castellanos claims that, because there

were multiple counts that could not be grouped, the district

court should have applied USSG § 5G1.2 rather than USSG § 3D1.4.

Two of Medina-Castellanos’ convictions were for violations of 18

U.S.C. § 1959(a)(3), which are covered by USSG § 2E1.3 and are

specifically excluded from the grouping rules in USSG § 3D1.2.

Therefore, the district court properly treated the three counts

as   separate     groups    and   applied    USSG   § 3D1.4    in   determining

Medina-Castellanos’ combined offense level.




      1
         Medina-Castellanos’ advisory   guidelines    range was
calculated using the 2006 U.S. Sentencing Guidelines Manual.
Section 2B1.1(b)(12)(B) was subsequently renumbered as USSG
§ 2B1.1(b)(13)(B). See USSG § 2B1.1(b)(13)(B) (2008).
      2
       We have reviewed Medina-Castellanos’ USSG § 3C1.1 claim
for plain error because Medina-Castellanos failed to object to
it in the district court



                                       7
           Accordingly, we affirm Medina-Castellanos’ convictions

and sentence.    However, we remand the case to the district court

for correction of a clerical error in the criminal judgment.

See Fed. R. Crim. P. 36.            The judgment erroneously indicates

that   Medina-Castellanos      pled       guilty   to   the     offenses   of

conviction.     This error does not affect the validity of Medina-

Castellanos’ convictions or sentences.             We dispense with oral

argument   as   the   facts   and   legal    contentions      are   adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                    AFFIRMED AND REMANDED




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