                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2008

USA v. Islas
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3214




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3214


                           UNITED STATES OF AMERICA

                                            v.

                                      ERIK ISLAS,
                                              Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           D.C. Criminal No. 01-cr-0217-2
                         (Honorable Clarence C. Newcomer)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 17, 2008

        Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.

                                 (Filed: May 30, 2008 )


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Erik Islas appeals his criminal sentence. We will affirm.

      On February 13, 2001, Islas was arrested while transporting approximately 370

pounds of marijuana, one of several deliveries in a conspiracy to transport marijuana from
Arizona to Philadelphia. A uniformed police officer in a marked car drove in front of

Islas and signaled him to pull over. Instead, Islas drove his vehicle into the police car

several times, and then struck a police car that had pulled in behind him. Islas then drove

into a business park, ran through a fence, and mired the vehicle in an embankment trying

to reach a major highway. Islas fled on foot, running across the highway in rush hour

traffic. After a struggle, Islas was placed under arrest.

       Islas waived his Miranda rights and gave a written statement in which he admitted

to delivering the marijuana found in his vehicle as well as overseeing and making other

deliveries. Islas made multiple drug deliveries, recruited others to join the conspiracy,

and directed the repackaging and weighing of the drugs. At his suppression hearing Islas

entered into a plea agreement with the Government, pleading guilty to conspiracy to

distribute marijuana (21 U.S.C. § 846) and possession with intent to distribute more than

100 kilograms of marijuana (21 U.S.C. § 841(a)(1)). The Presentence Report calculated a

base offense level of 28 with a three-level enhancement under U.S.S.G. § 3B1.1(b) for

supervising criminal activity involving at least five participants, a two-level enhancement

under U.S.S.G. § 3C1.2 for reckless endangerment during flight, and a two-level

reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility. The total offense

level was 31. With an offense level of 31 and a criminal history category of VI, the

recommended guideline range was 188 to 235 months. The District Court imposed a

sentence of 225 months’ incarceration.



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       On appeal, Islas contends the District Court erroneously (1) refused his request to

present evidence at the sentencing hearing, (2) applied the wrong burden of proof for the

sentencing enhancements, (3) violated his right to have non-disparate sentencing

treatment in relation to his co-defendants, and (4) wrongly calculated his criminal history.

       Turning to the first issue, we review for abuse of discretion. At the suppression

hearing, the Government’s witnesses included Islas’s co-conspirators. Defense counsel

cross-examined these witnesses and presented rebuttal witnesses. At sentencing, Islas

sought to re-cross his co-conspirators in order to prove the Government suborned perjury.

But the District Court ruled this evidence irrelevant to sentencing because guilt had

already been admitted. The District Court did not abuse its discretion and relied on a

sufficient factual basis to impose sentence.

       Second, Islas contends the sentencing guideline enhancements must be proved

beyond a reasonable doubt. This is incorrect. We exercise plenary review. A

preponderance standard applies to all factual findings relevant to sentencing, including

those supporting the underlying enhancements. United States v. Grier, 475 F.3d 556, 568

(3d Cir. 2007) (en banc).

       Third, Islas contends his sentence was grossly disparate from that of his co-

conspirators. 18 U.S.C. § 3553(a)(6) instructs a district court “to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of

similar conduct.” Islas received a greater sentence than his co-conspirators, but for valid



                                               3
reasons. Islas performed a supervisory role in the conspiracy, fled from apprehension,

and recklessly endangered others during his flight. Additionally, 18 U.S.C. § 3553(a)

does not bar sentence disparity among co-defendants as long as the factors considered are

consistent with the subsection. United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006).

The sentence imposed was reasonable.

       Finally, Islas contends the District Court wrongly calculated his criminal history,

failing to consider information provided in a pro-se response to the Presentence Report.

In his pro-se response, Islas offered additional information surrounding his convictions

and prior plea agreements. But this information was not relevant to the criminal history

calculation. Two additional points were added to his criminal history because Islas had

been on parole when arrested. Records from the Arizona Department of Corrections

establish his parole terminated on January 17, 2001; Islas admitted to engaging in the

criminal activity prior to that termination. Islas also pointed to notations in the

Presentence Report of arrests that did not result in conviction. But these were not used in

calculating his criminal history. The District Court correctly calculated his criminal

history.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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