                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-4806


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NATALLIA LIAPINA,

                Defendant - Appellant.



                             No. 12-4807


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIL LYAPIN,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda Wright Allen, District
Judge. (2:11-cr-00158-AWA-DEM-2; 2:11-cr-00158-AWA-DEM-1)


Submitted:   June 18, 2013                  Decided:   July 10, 2013


Before MOTZ, SHEDD, and FLOYD, Circuit Judges.
Affirmed in part and reversed in part by unpublished per curiam
opinion.


John S. Davis, V, WILLIAMS MULLEN, Richmond, Virginia; Garrick
A. Sevilla, C. Elizabeth Hall, WILLIAMS MULLEN, Raleigh, North
Carolina, for Appellant Natallia Liapina.   Alan H. Yamamoto,
Alexandria, Virginia, for Appellant Danil Lyapin.      Neil H.
MacBride, United States Attorney, Michael F. Murray, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     After a bench trial, the district court convicted Natallia

Liapina    and    her    son,     Danil     Lyapin,       of    offenses         arising   from

their     efforts     to    evade       immigration           laws    by    entering       into

fraudulent marriages.             The court sentenced Liapina to twenty-one

months imprisonment and Lyapin to forty-one months imprisonment.

On appeal, Liapina and Lyapin challenge their convictions and

sentences.



                                              I.

     Liapina       was     born    in     the       Ukraine    and     is    a    Belarussian

national.        In     2004,     Liapina       married       Dr.    Armando      Figuero,    a

United States citizen.             Lyapin was born in Russia and is also a

Belarussian national.             He came to the United States in 1996 and

subsequently       married        three    different          United       States    citizens

between 2000 and 2011.                 The Government maintains that Liapina

and Lyapin “engaged in a decade-long conspiracy to obtain green

cards   for      themselves       by    way     of    marriages        to    United    States

citizens.”       Government’s Br. at 2.

     The district court found Liapina guilty of one count of

conspiracy, in violation of 18 U.S.C. § 371 (count one), and

three counts of false statements related to naturalization or

citizenship, in violation of 18 U.S.C. § 1015(a) (counts five,

six, and seven).           The court found Lyapin guilty of one count of

                                                3
conspiracy, in violation of 18 U.S.C. § 371 (count one), one

count of marriage fraud, in violation of 8 U.S.C. § 1325(c)

(count    two),       and    two    counts    of        false      statements      related      to

naturalization         or      citizenship,           in     violation        of     18   U.S.C.

§ 1015(a)(counts            three    and    four).          The     court     then    sentenced

Liapina to twenty-one months imprisonment on each count, to run

concurrently,         and    Lyapin    to    forty-one            months     imprisonment       on

each count, to run concurrently.



                                              II.

     Lyapin argues that the district court erred in denying his

motion    to       suppress    statements         he     made      after     being    arrested.

According to Lyapin, he made those statements after invoking his

right    to    have    an     attorney      present,         in    response     to    continued

questioning by the Government.                    See Edwards v. Arizona, 451 U.S.

477, 484-85 (1981) (holding that, once the accused invokes his

right    to    counsel,       the    government         cannot       continue      questioning

“unless       the    accused       himself    initiates            further    communication,

exchanges or conversations”).

     The Government contends that we should decline to consider

Lyapin’s       argument,       because       he       did    not    file     his     motion     to

suppress until 192 days after the deadline set by the district

court.        See Fed. R. Crim. P. 12(b)(3), (e) (party waives any

request       to    suppress    evidence          not      raised    by    deadline       set   by

                                                  4
court).     Lyapin responds that the issue is properly before this

Court because the district court rejected his suppression motion

on the merits.

      We need not resolve this dispute, however, because Lyapin’s

post-arrest statements were duplicative of other evidence the

Government presented.        Thus, “review[ing] the remainder of the

evidence    against”      Lyapin,    we       conclude     that       any    error        the

district    court   may    have     committed      in    refusing           to    suppress

Lyapin’s     post-arrest      statements         was     “harmless               beyond     a

reasonable doubt.”         Arizona v. Fulminante, 499 U.S. 279, 310

(1991); see United States v. Johnson, 400 F.3d 187, 197 (4th

Cir. 2005).



                                       III.

      Liapina argues that the district court erred in considering

several witness statements she contends constitute inadmissible

hearsay.     Because Liapina failed to raise this argument before

the district court, we review for plain error.                          Thus, we can

reverse only if Liapina shows that an error occurred, was plain,

and   affected   her     substantial      rights.        See    United           States    v.

Olano, 507 U.S. 725, 732 (1993).                Generally, an error does not

affect     substantial     rights    unless       “there       [is]     a        reasonable

probability that the error affected the outcome of the trial.”

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010).

                                          5
        While     the      district   court       considered       the     statements     in

question in finding Liapina guilty, the court also considered

abundant other evidence.                This evidence included the testimony

of    other     witnesses      that   Lyapin       and    Figueroa        had   a   romantic

relationship while Liapina and Figueroa did not live together

and     had     little       interaction,         and    Liapina’s        own   statements

indicating that her marriage was fraudulent.                         Thus, even if the

court     erred       in    admitting    the       statements       to     which     Liapina

objects,        she     cannot    show    that          “there     [is]     a   reasonable

probability that the error affected the outcome of the trial.”

Marcus, 130 S. Ct. at 2164.



                                            IV.

        Liapina       also     argues     that          the      Government         presented

insufficient evidence to convict her on counts five, six, and

seven.        Those counts charge violations of 18 U.S.C. § 1015(a),

which makes it a crime to “knowingly make[] any false statement

under oath” in an immigration matter.

        Liapina’s statement on immigration forms and to immigration

officials, that she had never committed any crime for which she

had not been arrested, provides the basis for counts six and

seven.        Her statement, that she had never committed a crime of

moral turpitude for which she had not been arrested, provides

the basis for count five.                 The indictment alleges that these

                                              6
statements were knowingly false because Liapina had conspired to

engage in, and engaged in, a fraudulent marriage to Dr. Figueroa

in violation of 8 U.S.C. § 1325(c).

       We review challenges to the sufficiency of the evidence de

novo, viewing the evidence in the light most favorable to the

Government.         United States v. Ayesh, 702 F.3d 162, 169 (4th Cir.

2012).      We must affirm if “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.”        United States v. Poole, 640 F.3d 114, 121 (4th Cir.

2011).

       Liapina contends that the Government failed to prove the

knowledge element of 18 U.S.C. § 1015(a), because it offered no

evidence       that    she     knew     marriage    fraud     was      a   crime.      The

Government,         however,    presented        evidence    that      Liapina      worried

about being caught and took measures to conceal the fraudulence

of    her   marriage.          Viewing    this     evidence       in   the    light   most

favorable to the Government, we cannot conclude that no rational

trier    of    fact    could     find    that    Liapina     knew      entering     into    a

fraudulent marriage was a crime.                   See United States v. Beidler,

110     F.3d    1064,     1070     (4th     Cir.     1997)        (evidence    defendant

attempted      to     conceal    illegal    activity        may    support    conclusion

that    defendant       knew    activity    was     illegal).          Accordingly,        we

affirm her convictions on counts six and seven.



                                             7
      The    Government    concedes,     however,        that    Liapina’s    counsel

was constitutionally ineffective for failing to raise a statute

of   limitations       defense    to   count     five.      We    agree.        Though

Liapina’s sentence will not change as a result of reversal on

count five, her conviction subjects her to the standard $100

assessment.        This   constitutes         prejudice,    see    Ray   v.     United

States, 481 U.S. 736 (1987), and so requires reversal of her

conviction on count five.



                                         V.

      Finally, both Lyapin and Liapina argue that the district

court applied the wrong sentencing guidelines to their offenses,

resulting in inappropriately high guideline ranges.                        The court

applied     the   guideline      for   perjury    or     subornation     of     perjury

(U.S.S.G. § 2J1.3) to counts one, three, and seven, and the

guideline for falsely procuring immigration benefits for others

(U.S.S.G. § 2L2.1) to counts four, five, and six.                        Lyapin and

Liapina     contends    that     the   court    should     instead   have       applied

§ 2L2.2, the guideline for, inter alia, fraudulently acquiring

documents     relating     to    naturalization,         citizenship,      or    legal

resident status for the alien’s own use, to all counts.

      Lyapin and Liapina do not dispute that § 2J1.3 may in some

cases apply to violations of 18 U.S.C. § 1015(a) and 18 U.S.C.

§ 371.      See U.S.S.G. App’x A (indicating §§ 2B1.1, 2J1.3, 2L2.1,

                                          8
or 2L2.2 may apply to violations of 18 U.S.C. § 1015(a)); id.

§ 2X1.1 (base offense level for substantive offense applies to

conspiracy         conviction).        “When    the     offense     of     conviction

appear[s]      to    fall   under    the   express     terms   of   more      than   one

guideline, the sentencing court must choose the guideline that

is most applicable by compar[ing] the guideline texts with the

charged misconduct, rather than the statute . . . or the actual

conduct.”          United States v. Boulware, 604 F.3d 832, 836 (4th

Cir.       2010)    (internal   quotation      marks    omitted).        Lyapin      and

Liapina did not urge the application of § 2L2.2 in the district

court, so our review is for plain error.                   See United States v.

Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). *

       Counts one, three, and seven charge Lyapin and Liapina with

making false statements under oath.                    While § 2L2.2 -- which

focuses specifically on naturalization fraud -- might be more

appropriate,         we   cannot    conclude    that    any    error     in   applying

§ 2J1.3 would be plain.             As Lyapin and Liapina concede, neither

we nor the Supreme Court has held that § 2J1.3 does not apply to


       *
       Liapina does not assert to the contrary. Lyapin, however,
contends he preserved the issue for appeal because he objected
before the district court to the application of § 2J1.3 to
counts one and three.    But in his objection, Lyapin indicated
that his base offense level should have been 11, and that base
offense level corresponds to § 2L2.1, a guideline Lyapin now
asserts is inapplicable. Lyapin did not preserve for appeal his
argument that § 2L2.2 is the applicable guideline.



                                           9
the submission of false statements in connection with marriage

fraud.   See United States v. Reid, 523 F.3d 310, 316 (4th Cir.

2008) (“To be plain, an error must be clear or obvious.                       An

error is clear or obvious when the settled law of the Supreme

Court or this circuit establishes that an error has occurred.”

(internal quotation marks and citations omitted)).

     Lyapin    and   Liapina   also    challenge    the     district    court’s

application of § 2L2.1 to counts four, five, and six.                        Both

Lyapin and Liapina received concurrent sentences on all counts

for which they were convicted.              Thus, application of a lower

guideline range to counts four, five, and six would not alter

the length of their sentences, so any error did not affect their

substantial rights and does not constitute plain error.                      See

Marcus, 130 S. Ct. at 2164.



                                      VI.

     For the foregoing reasons, we reverse Liapina’s conviction

on count five and affirm in all other respects.                     We dispense

with oral argument because the facts and legal contentions are

adequately    presented   in   the    materials    before    this    court   and

argument would not aid the decisional process.



                                AFFIRMED IN PART AND REVERSED IN PART



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