                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4020



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WILFREDO MONTOYA BAIRES, a/k/a Nino,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:05-cr-00478)


Submitted:   September 12, 2007        Decided:     November 15, 2007


Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Lana M. Manitta, RICH GREENBERG ROSENTHAL & COSTLE, LLP,
Alexandria, Virginia, for Appellant.  Chuck Rosenberg, United
States Attorney, Patrick F. Stokes, Morris R. Parker, Jr.,
Assistant United States Attorneys, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Wilfredo Montoya-Baires shot and killed Jose Escobar, a

fellow member of the Mara Salvatrucha (“MS-13") gang.                         He appeals

from his resulting convictions and life sentence imposed following

a jury verdict of guilty of conspiracy to commit murder in aid of

racketeering, 18 U.S.C. § 1959(a)(5) (2000), murder in aid of

racketeering, 18 U.S.C. §§ 2, 1959(a)(1) (2000), use of a firearm

in   the    commission     of    a   crime   of   violence,       18       U.S.C.   §§   2,

924(c)(1)(A) (West Supp. 2007), and possession of a firearm and

ammunition by an alien illegally in the United States, 18 U.S.C.

§ 922(g)(5) (2000).             On appeal, Baires challenges the district

court’s decision to allow the government to present additional

evidence     of     racketeering     activity     beyond    the    three       instances

initially approved.             He also contends that the district court

abused its discretion in limiting the manner of cross-examination

of government witnesses who testified with the aid of interpreters

and he challenges the constitutionality of his life sentence.                            We

affirm.

                 Baires’ first argument on appeal is that the district

court abused its discretion by allowing the government to present

excessive, cumulative evidence of “racketeering acts” committed by

members of the MS-13 gang, of which Baires was a member.                                 He

contends that the probative value of such evidence, beyond that

which      was    necessary     to   prove   that   MS-13     is       a    racketeering


                                        - 2 -
organization, was outweighed by the prejudicial effect the evidence

had on his case, in violation of Fed. R. Evid. 403.

            Prior to trial, the district court held a hearing and

determined that it would allow the government to present evidence

of three racketeering acts and, after that, the government could

request permission to present more, and the court then would

consider    whether   any    additional     such     evidence       would    be   more

prejudicial than probative. The government presented the testimony

of Detective Rick Rodriguez and three MS-13 gang members as to the

general    background   of   the    MS-13    gang,    their    rules,       and   some

activities, including stealing cars and transporting them across

state lines and into Central America.                 Joel Mattos, an MS-13

member, also testified that he sold drugs while a member of the

gang and that the MS-13 gang stole cars and took the cars or car

parts to other states.        Mattos testified that one of the gang’s

rules was that MS-13 members did not cooperate with the police.                     If

a member did cooperate with the police, he would be killed.                       Gang

members also had to kill or hurt rival gang members.                        Killing a

rival   gang   member—or     an    MS-13    member    who     the    gang     leaders

determined had cooperated with the police—would result in increased

respect and position in the gang.

            Angel Barrera also testified about the rules of MS-13.

Barrera testified about how he and three other MS-13 members

tricked a rival gang member, Joaquin Diaz, into accompanying them


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in their vehicle, took him to an isolated area in a park, stabbed

him repeatedly, kicked him, cut off his wrists, and cut his throat.

          Osmin    Alfaro-Fuentes   testified   that   the   MS-13    gang

leaders gave him a mission to kill a rival gang member.                 He

attempted to carry out the mission by shooting five times into a

car that he believed was occupied by rival gang members.             After

discovering that no one in the vehicle was hurt, Alfaro-Fuentes

tried again, this time completing his mission and killing Jose

Sandoval, a seventeen-year-old suspected rival gang member, and

shooting Sandoval’s sixteen-year-old sister, Lorena.

          Over Baires’ objection, the district court allowed the

government to call Lorena Sandoval in order to corroborate the

testimony of gang members, who may not be found to be credible.

The court admonished the government not to use photographs and to

“do it quickly.”    The court also advised Baires’ attorneys that

they could renew the objection if the testimony became excessive.

Lorena Sandoval merely testified that a guy approached her and her

brother on a bicycle, mentioned the 18th Street gang—a rival of the

MS-13 gang.   As soon as Jose admitted to being in the 18th Street

gang, the guy shot her and her brother.    She further testified that

she had been shot in the back and suffered a collapsed lung.

          The   government   then   requested   permission   to   present

evidence of one more act of violence.    The district court agreed to

allow evidence of one more violent act and reminded the jury that


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the purpose of the preceding evidence was to show racketeering acts

by an enterprise, not to prove any bad conduct by Baires.

           Christopher Padilla, a member of the Southside Locos

gang, testified that he and two other members of his gang chased an

MS-13 gang member to an apartment building.          An MS-13 member came

out of the apartment with a machete and chased Padilla.              Two other

MS-13 members caught Padilla, and the machete-bearing MS-13 member

hit him in the forehead, back, hands, and head with the machete and

the other two kicked him.       Padilla testified about his injuries,

including that he lost four fingers on his left hand.

           Baires argues that the testimony of Lorena Sandoval and

Christopher Padilla was excessive and cumulative and that it should

have been excluded under Fed. R. Evid. 403.          The district court’s

decision to admit evidence is given broad deference and will be

overruled only upon an abuse of discretion.               United States v.

Rivera, 412 F.3d 562, 571 (4th Cir.), cert. denied, 126 S. Ct. 670

(2005); United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).

In reviewing the admission of evidence, this court is to construe

the   evidence   in   the   “light   most    favorable   to   its   proponent,

maximizing its probative value and minimizing its prejudicial

effect.”   United States v. Simpson, 910 F.2d 154, 157 (4th Cir.

1990).

           In order to convict for murder in aid of racketeering

activity under 18 U.S.C. § 1959 (2000), the government had to prove


                                     - 5 -
beyond a reasonable doubt:      (1) that the organization was a RICO

enterprise; (2) that the enterprise was engaged in racketeering

activity as defined in RICO; (3) that the defendant had a position

in the enterprise; (4) that the defendant committed the alleged

crime of violence; and (5) that his general purpose in so doing was

to maintain or increase his position in the enterprise.             United

States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994).          An enterprise

must “exhibit three basic characteristics: (1) a common or shared

purpose; (2) some continuity of structure and personnel; and (3) an

ascertainable   structure   distinct     from   that   in   a   pattern   of

racketeering.” United States v. Nabors, 45 F.3d 238, 240 (8th Cir.

1995).

           The evidence Baires challenges did not simply go to

proving that a number of violent acts were committed or that the

activities were racketeering acts, but rather were presented to

prove additional elements of the crime, namely the “continuity,

unity, shared purpose, and identifiable structure” of MS-13, which

proved that it was a RICO enterprise.      Fiel, 35 F.3d at 1003 (“The

hallmark concepts that identify RICO enterprises are ‘continuity,

unity, shared purpose and identifiable structure.’”); see United

States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991) (holding that

evidence of uncharged acts of violence by members is probative of

the existence of a RICO enterprise).            The evidence also was

relevant   to   show   motive   for    killing.        Specifically,      the


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government’s witnesses testified that killing a rival gang member

or killing a person believed to be cooperating with the police

would increase the member’s status in the gang and his reputation.

This evidence of gang ambition and gang loyalty as a motive was

presented as a reason why Baires would kill Escobar. This evidence

was necessary to counter Baires’ contention that the killing

occurred in the spur of the moment and during a heated argument.

This evidence served to help the jury understand Baires’ reasons

for reporting to the MS-13 leaders that Escobar was a snitch, thus

authorizing the killing of Escobar, and setting Baires up for

advancement within the gang for carrying out the execution order on

Escobar.     See United States v. Bolden, 325 F.3d 471, 494 (4th Cir.

2003) (discussing evidence presented as to motive).

             Baires argues that Padilla’s testimony and the testimony

of Lorena Sandoval were purely prejudicial.       However, we find that

the corroboration provided by Lorena Sandoval to the testimony of

Alfaro-Fuentes, an admitted gang member and felon, is clearly

probative, for, as the district court acknowledged, Alfaro-Fuentes’

credibility was subject to challenge in light of his being an

incarcerated felon who was testifying in the hope of having his

sentence reduced. The testimony of Padilla regarding the attack on

him was probative of the rules of the MS-13 gang and the fact that

the   gang   was   a   RICO   enterprise.   Additionally,   the   evidence

concerning the attack and attempted murder of Padilla was not


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significantly different from the evidence of the brutal attack and

murder of Joaquin Diaz.    Moreover, the district court issued a

cautionary instruction just prior to Padilla’s testimony and again

at the end of the trial, thereby obviating any unfair prejudice

that might have resulted from the testimony.   See Love, 134 F.3d at

603 (holding that cautionary instructions generally obviate any

unfair prejudice from testimony).

          Accordingly, we find that the district court did not

abuse its discretion in admitting this evidence as probative of the

existence of a RICO enterprise, the fact that killing of rivals and

snitches was encouraged and required by the enterprise, and as to

Baires’ motive in killing Escobar.    See Rivera, 412 F.3d at 571.

          Baires next argues that the district court abused its

discretion by limiting his cross-examination, in violation of his

Sixth Amendment right to confront the witnesses against him.

Specifically, during the cross-examination of two witnesses who

testified for the government with the aid of an interpreter, the

district court judge sustained the government’s objection to the

form of a question and directed Baires’ attorney to “ask questions.

Don’t simply state a proposition.     Ask a question.”    The court

explained that, given the language barrier, statements of fact on

cross-examination were “unfair to the witness.”

          Baires contends that the witnesses stated that they

understood some English, and they did not indicate that they had


                              - 8 -
difficulty   understanding       counsel’s      cross-examination.         Baires

asserts   that     the    court’s   requirement    that    counsel     only   use

questions limited counsel’s ability to effectively confront the two

key witnesses to the shooting of Jose Escobar.

            The Confrontation Clause guarantees the accused the right

to   cross-examine       witnesses.      U.S.   Const.    amend.     VI;   United

States v. Smith, 451 F.3d 209, 221 (4th Cir.), cert. denied, 127 S.

Ct. 197 (2006).          Thus, “a trial court should accord a criminal

defendant a reasonable opportunity to conduct cross-examination

that might undermine a witness’s testimony.”               Id.; see Quinn v.

Haynes, 234 F.3d 837, 847 (4th Cir. 2000).                However, the trial

judge retains wide latitude to impose “reasonable limits on such

cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’ safety

or interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

            Here, Baires’ ability to cross-examine the government’s

witnesses    was   not     unconstitutionally     restricted,      because    the

district court limited only the manner of cross-examination, not

the scope of it.     This was a reasonable way for the district court

to resolve what it perceived as confusion caused to the Spanish-

speaking witnesses by the manner of cross-examination using of

statements, rather than questions.               See Fed. R. Evid. 611(c)

(“ordinarily     leading     questions   should    be    permitted    on   cross-


                                      - 9 -
examination”).        Notably, the court did not prevent Baires’ counsel

from questioning Freddy Escobar or Raul Escobar with respect to

their    potential      biases       and    motives        or       with    respect      to   any

substantive      areas.            The     court     was    not        so    much     limiting

cross-examination, as seeking to prevent any confusion caused by

translations and the language barrier.                              We find no abuse of

discretion in this instance.                See Smith, 451 F.3d at 220; United

States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1997).

              Baires’ final argument is that his life sentence is

unconstitutional because it was imposed as a mandatory minimum

sentence      under    the    statute        of     conviction.             See     18   U.S.C.

§ 1959(a)(1). He contends that because the Supreme Court in United

States   v.    Booker,       543    U.S.     220,    234    (2005),         made    mandatory

guideline      sentences       unconstitutional,                a    mandatory      statutory

sentence must also be unconstitutional. He seeks to be resentenced

with consideration given to the factors set forth in 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2007).

              We have held that Booker did not change the fact that a

sentencing court cannot impose a sentence below the statutory

minimum.      United States v. Robinson, 404 F.3d 850, 862 (4th Cir.),

cert. denied, 126 S. Ct. 288 (2005); see United States v. Green,

436 F.3d 449, 455-56 n.* (4th Cir.) (providing that statutory

“maximum and minimum sentences must be honored except as statute

otherwise authorizes”), cert. denied, 126 S. Ct. 2309 (2006).


                                           - 10 -
Thus, we find no error in the district court’s determination of

Baires’ sentence.

           In conclusion, we affirm Baires’ conviction and sentence.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                  AFFIRMED




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