             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND

               No. 1505

        September Term, 2014



   OSCAR CRUZ-QUINTANILLA

                   v.

       STATE OF MARYLAND



   Krauser, C.J.,
   Nazarian,
   Thieme, Raymond G., Jr.
      (Retired, Specially Assigned),

                  JJ.


         Opinion by Thieme, J.


   Filed: May 31, 2016
       A jury in the Circuit Court for Prince George’s County found appellant, Oscar Cruz-

Quintanilla, guilty of reckless endangerment, wearing and carrying a handgun, and

conspiracy to commit robbery with a dangerous weapon. The court sentenced appellant to

concurrent three year prison terms for the reckless endangerment and the handgun counts.

As to the robbery count, he was sentenced to 20 years with all but nine years suspended, to

run consecutive to the reckless endangerment and handgun sentences. Upon release,

appellant must serve five years of supervised probation, with a condition that he not be

involved in any gang activity or be a member of any gang.

       Appellant presents the following issue on appeal, which we have rephrased:1

              Whether the circuit court erred during sentencing in permitting
       expert testimony regarding appellant’s gang membership.

       Finding no error, we affirm.

                                SENTENCING HEARING2

       Appellant contends that the evidence at sentencing regarding his gang membership

was improper since his convictions were completely unrelated to that membership and his



       1
           Appellant phrased the issue as:

              “Whether trial courts have discretion to admit gang-membership
       evidence in a sentencing hearing when the gang membership is unrelated to
       the convictions and the defendant is not connected to any criminal offenses of
       the gang.”
       2
         Because appellant challenges only the evidence introduced at sentencing, it is
unnecessary to set forth the facts of the crimes for which appellant was convicted, except to
note that the gang evidence introduced at sentencing was not introduced at trial, nor was
appellant charged with any gang-related offenses.
convictions were not linked to any bad acts on behalf of the gang. The State responds that

the evidence of appellant’s gang membership was a proper consideration in the formulation

of his sentence as the evidence established not only that appellant was a member of the gang,

but that the gang was criminal in nature.

       At the sentencing hearing, the State presented evidence through Sergeant George

Norris of the Prince George’s County Police Department that appellant is a member of the

MS-13 gang. Over the objection of defense counsel, Sergeant Norris testified to his

experience with the MS-13 gang and his familiarity with appellant as a member of the gang.

The sergeant testified that MS-13 is a violent street gang that requires its members to commit

criminal acts of violence. Any MS-13 member would be aware of the gang’s criminal

purpose since initiation into MS-13 requires acts of violence, including being beaten by

fellow gang members. The gang’s motto is “mata, vola, controla,” which means kill, rape

and control. According to the sergeant, appellant has been a known member of MS-13 since

at least 2004. Appellant has admitted that he is an MS-13 member and he has multiple MS-

13 tattoos evidencing his gang membership. MS-13 tattoos are exclusive to members of the

gang; anyone bearing MS-13 tattoos other than a member, would be killed by MS-13.

       Based on the nature of appellant’s convictions and his documented MS-13 gang

affiliation, the State requested that the court impose a sentence totaling 26 years, which was




                                              2
above the sentencing guidelines but still permitted by statute.3 Defense counsel responded

that a sentence of nine years, with all but four years suspended, was more appropriate. The

court sentenced appellant to a total of 23 years, with all but 12 years suspended.

                                      DISCUSSION

       It is well established in Maryland “that a sentencing court is vested with virtually

boundless discretion” in imposing a sentence. Jennings v. State, 339 Md. 675, 683

(1995)(citations and internal quotations omitted). “A court has a power to impose whatever

sentence it deems fit as long as it does not offend the maximum and minimum penalties.”

State v. Parker, 334 Md. 576, 592-93 (1994)(citation omitted). The sentencing court’s

broad discretion however, does not permit the imposition of a sentence that is cruel and

unusual; violative of constitutional requirements; motivated by ill-will, prejudice, or other

impermissible considerations; or that exceeds statutory limitations. Jennings, 339 Md. at

683.

       Appellant’s sole challenge to his sentences is that the court improperly considered

evidence of his gang affiliation. Relying on Dawson v. Delaware, 503 US. 159 (1992),

appellant contends that the introduction of evidence of his MS-13 gang membership violated

his First Amendment rights, and that his convictions were unrelated to his MS-13 affiliation.


       3
        The maximum sentence for reckless endangerment is five years, pursuant to section
3-204 of the Criminal Law Article (“CL”) of the Maryland Code (2002, 2012 Repl. Vol.).
The maximum sentence for wearing, carrying and transporting a handgun is three years. CL
§4-203 (1957, 2012 Repl. Vol.). The maximum sentence for conspiracy to commit robbery
with a dangerous weapon is 20 years. CL §3-403. (1957, 2012 Repl. Vol.).

                                             3
Appellant’s reliance on Dawson, however, is misplaced. In Dawson, the United States

Supreme Court held that evidence introduced at sentencing regarding defendant’s

membership in the Aryan Brotherhood, a white supremacist prison gang, violated the First

Amendment because it was irrelevant to the defendant’s sentencing. Id. at 166-67. The

Court concluded that since the prosecution failed to prove that the Aryan Brotherhood

committed any unlawful or violent acts, or endorsed such acts, the evidence did not prove

any aggravating circumstances beyond the defendant’s “mere abstract beliefs.” Id. at 167.

Explaining that the Constitution does not erect a “per se” barrier against the admission of

evidence regarding beliefs protected by the First Amendment, the Court acknowledged that

evidence may be admissible in appropriate cases in which evidence of criminal or violent

conduct of the gang is introduced. Id. at 165-66. “In many cases, for example, associational

evidence might serve a legitimate purpose in showing that a defendant represents a future

danger to society.” Id. at 166.

       In appellant’s case, the evidence regarding MS-13 was not limited to the

constitutionally protected beliefs of the gang. Sergeant Norris testified to the criminal acts

that the gang requires of its members, including the violent acts required for initiation into

the gang. It would be reasonable to infer from the evidence that as a documented member

of MS-13, appellant endorses not just MS-13’s beliefs, but also its criminal activities.

       While there is no reported Maryland appellate opinion considering whether gang

evidence is admissible in sentencing proceedings, it is well settled that the trial courts “are


                                              4
given very broad latitude in the kinds of information they may consider in [sentencing].”

Jennings, 339 Md. at 683 (holding that the sentencing court could consider defendant’s lack

of remorse on the issue of his prospects for rehabilitation)(citations omitted); Saenz v. State,

95 Md. App. 238, 250-51 (1993)(holding that defendant’s lack of remorse at sentencing was

an appropriate consideration in sentencing); see also Smith v. State, 308 Md. 162, 165-69

(1986)(collecting cases)(finding that testimony at sentencing regarding a report of attempted

rape that was unrelated to the crime for which defendant was being sentenced, and for which

he had not been charged, was admissible); Colvin-el v. State, 332 Md. 144, 166

(1993)(concluding that defendant’s mental health report which was included in the

presentencing report was germane and admissible at sentencing “[g]iven the importance that

the convicted person’s mental and physical health and mental and moral propensities play

in the sentencing determination”).

       Moreover, other state courts have held that evidence of gang affiliation is a proper

sentencing consideration. See State v. Cooks, 720 So.2d 637, 650 (La. 1998)(finding that

strong evidence establishing a link between defendant’s gang involvement, his character,

and his sentencing “escaped the trap illustrated in Dawson” and was admissible in capital

sentencing phase); State v. Moore, 927 P.2d 1073, 1087-88 (Or. 1996)(holding that

defendant’s belief in white supremacy, together with the evidence of his related conduct,

was probative of his future dangerousness); People v. Coleman, 633 N.E.2d 654, 673 (Ill.

1994)(admission of evidence at capital sentencing hearing regarding defendant’s prison


                                               5
gang activities did not violate his First Amendment rights); Beasley v. State, 902 S.W.2d

452, 456 (Tex. Crim. App. 1995)(holding that evidence of defendant’s gang membership

and evidence of the character and reputation of the gang are permissible in sentencing

because they related to defendant’s character).

       In this case, it was properly within the discretion of the sentencing court to consider

evidence regarding the nature and activities of MS-13 as it pertained to the court’s

consideration of appellant’s character. As the State points out, however, it is unclear

whether the sentencing court actually considered appellant’s gang affiliation in

determinating appellant’s sentence, as the court makes no mention of appellant’s gang

membership during the sentencing hearing.4 Even assuming arguendo, that the testimony

regarding MS-13 and appellant’s membership in MS-13 was improper, the sentencing court

gave no indication that it was giving appellant an increased sentence due to his gang

membership or any other reason.

       Although appellant’s sentence of 12 years exceeded the recommended sentence (of

four to nine years) as set forth in the Maryland Sentencing Guidelines Worksheet prepared

at his sentencing hearing,5 we perceive no error. This Court repeatedly has held that trial

       4
         We note that the sentencing court included as a condition of appellant’s probation
that he not be involved in any gang activity or be a member of any gang. Appellant does not
challenge that condition.
      5
         According to the Maryland Sentencing Guidelines Manual, determination of
whether a sentence for multiple counts falls within the overall guidelines range is based on
the calculation of the net time to be served (i.e., the initial sentence minus suspended
sentence). See §§ 9.1 - 9.4, pp.35-38 (2015).

                                              6
judges are not bound by the sentencing guidelines promulgated by the judiciary in imposing

sentences in criminal cases. See Saenz, 95 Md. App. at 252 (“A sentence outside the

guidelines is not indicative that the guidelines were not considered but only that they were

rejected. A rejection of guidelines is contemplated by the guidelines themselves”); Timney

v. State, 80 Md. App. 356, 368-69 (1989) (no error for judge to sentence above the

guidelines). Sentencing guidelines in Maryland are not mandatory, and any deviation from

them is not a basis for vacating the sentence or requiring a new sentencing hearing. Teasley

v. State, 298 Md. 364, 370 (1984); accord Jennings, 339 Md. at 680 n.1 (citation omitted);

Saenz, 95 Md. App. at 251.

       Here, the sentencing court did not abuse its discretion in sentencing appellant above

the recommended guidelines as appellant’s sentence was within statutory limits.

                                                 JUDGMENT OF THE CIRCUIT
                                                 COURT FOR PRINCE GEORGE’S
                                                 COUNTY AFFIRMED. COSTS TO BE
                                                 PAID BY APPELLANT.




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