                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4271


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARIO E. ARIAS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:06-cr-00187-RWT-1)


Submitted:    March 12, 2009                 Decided:   March 30, 2009


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael E. Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland,
for Appellant.     Rod J. Rosenstein, United States Attorney,
Jonathan C. Su, James M. Trusty, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Mario E. Arias pled guilty pursuant to a written plea

agreement to possession of a firearm with an obliterated serial

number,    in    violation      of     18    U.S.C.       § 922(k)      (2006).            After

hearing testimony regarding Arias’s affiliation with the MS-13

gang, the district court imposed a variance sentence of fifty-

five months’ imprisonment.                Finding no error, we affirm.

            On    appeal,      Arias       initially       contends     that        his    Sixth

Amendment right of confrontation, as detailed in Crawford v.

Washington, 541 U.S. 36 (2004), was violated when the district

court   considered       the    statements          of    individuals         who    did     not

testify at the sentencing hearing.                      Arias also contends that the

district    court      erred   in     considering          the    hearsay      evidence       at

sentencing because of its unreliability.                           Specifically, Arias

challenges      the    testimony      of     Shawn      Morrow,    an   agent        with    the

Bureau of Alcohol, Tobacco, Firearms, and Explosives.                                Morrow’s

testimony    was,      in    part,     based       on    information       obtained         from

confidential informants and another law enforcement officer.

            In      Crawford,        the      Supreme       Court       held        that    the

Confrontation         Clause    prohibits          the     admission       at       trial     of

testimonial       statements         that         are     not     subject       to        cross-

examination.        Id. at 50-51.           However, as conceded by Arias, no

circuit     court     that     has     considered         the     effect       of    Crawford

following United         States      v.     Booker,      543     U.S.   220    (2005),       has

                                              2
concluded      that       the    rule     announced          in    Crawford      applies       at

sentencing.        See, e.g., United States v. Bras, 483 F.3d 103, 109

(D.C. Cir. 2007) (determining Crawford did not alter general

rule   that    hearsay          evidence    admitted         at    sentencing       does      not

violate     defendant’s         confrontation         rights       and   collecting      cases

adopting rule); see also United States v. Brown, 430 F.3d 942,

943-44 (8th Cir. 2005) (noting courts have held that Crawford

did not alter general rule of admissibility of hearsay evidence

at sentencing).

              Further,       contrary      to       Arias’s       argument,      reliance      on

hearsay evidence at sentencing is specifically authorized.                                    “No

limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense     which     a    court    of    the       United    States      may    receive      and

consider for the purpose of imposing an appropriate sentence.”

18 U.S.C. § 3661 (2006); see also U.S. Sentencing Guidelines

Manual (“USSG”) § 1B1.4 (2006).                     Moreover, the traditional rules

of evidence are not applicable to sentencing proceedings.                                     See

Fed.   R.   Evid.         1101(d)(3).        Thus,      a     court      may    consider      any

related and reliable evidence before it, including hearsay, in

establishing relevant conduct.                       United States v. Bowman, 926

F.2d 380, 381 (4th Cir. 1991).

              At    sentencing,          Morrow      testified        that      Arias   was    a

member and occasional leader in the Langley Park Salvatrucha

                                                3
(“LPS”) clique of MS-13.                Morrow detailed orders given by Arias

in his leadership capacity, including pat-downs of members for

wires, disciplinary beatings, missions to test gang loyalty, and

“green     lighting”        a     suspected        informant      for     death.         This

testimony generally was corroborated by Arias who admitted that

he was involved with the LPS clique of MS-13 from 2004 until the

time of his arrest in 2006.                   Arias also confirmed that he was a

leader in the clique and therefore able to issue orders such as

“green     lights.”             Moreover,       the     details        provided    by     the

informants,       who     did     not    know      each       other’s    identity,       were

consistent        and    corroborated          with     surveillance       and     physical

evidence.     Audio recordings also were obtained by informants who

on occasion wore wires to meetings.                       Accordingly, we conclude

that the hearsay evidence was reliable and therefore properly

considered by the district court at sentencing.

            Next, Arias contends that the district court erred in

applying     an    enhancement          for    obstruction        of    justice.         When

reviewing    the        district    court’s        application     of     the    Sentencing

Guidelines,       we     review    findings        of   fact    for     clear    error   and

questions of law de novo.               United States v. Green, 436 F.3d 449,

456 (4th Cir. 2006).               The Guidelines provide for a two-level

increase     in         offense     level       when      a     defendant        “willfully

obstruct[s] or impede[s], or attempt[s] to obstruct or impede,

the administration of justice with respect to the investigation,

                                               4
prosecution,           or      sentencing         of        the     instant        offense        of

conviction.”            USSG § 3C1.1 (2006).                  Covered conduct includes

committing perjury and providing materially false statements to

law       enforcement          officers       that          significantly          impede     the

investigation of the offense.                 Id. at comment. (n.4(b), (g)).

              The district court determined that an enhancement for

obstruction        of       justice    was    warranted           because      Arias    falsely

testified         at    the     suppression           hearing       that     law    enforcement

officers had not administered oral Miranda ∗ warnings prior to

questioning        him.         Additionally,           the    court       found    that     Arias

impeded      the       investigation         by        initially       lying       to   officers

regarding the existence of a firearm in his residence.                                       Arias

argues, as he did in the district court, that the enhancement

should not have been applied as any inaccuracy in his testimony

at the suppression hearing was the result of confusion or faulty

memory     and     that       his   failure       to    disclose       the    presence       of    a

firearm      in    his      residence      did        not     significantly         impede    the

officers’ investigation.

              “Application            of   [§ 3C1.1]           is    appropriate        if     the

sentencing court finds that the defendant when testifying under

oath (1) gave false testimony; (2) concerning a material matter;

(3) with the willful intent to deceive (rather than as a result

      ∗
          Miranda v. Arizona, 384 U.S. 436 (1966).



                                                  5
of confusion, mistake, or faulty memory).”                            United States v.

Quinn, 359 F.3d 666, 681 (4th Cir. 2004) (internal quotation

marks and citation omitted).                It is evident from the materials

in the joint appendix that Arias unequivocally testified that he

was not provided oral Miranda warnings prior to questioning by

law    enforcement.        As    determined       by    the    district      court,     this

testimony was false and intended to deceive.                          The testimony was

unquestionably material since a finding that the officers failed

to     administer    Miranda      warnings       could        have    resulted     in    the

suppression of the firearm at issue.                     Thus, the district court

properly applied a two-level increase under § 3C1.1.                            Because we

have concluded that Arias’s perjury at the suppression hearing

supports the enhancement, we need not address Arias’s contention

that     his    statements       to   law       enforcement          officers    did    not

significantly impede the investigation.

               Finally,     Arias     contends          that         his    sentence     is

unreasonable.           After     calculating          the     appropriate        advisory

Guidelines       range,    the    district           court    must     consider    it     in

conjunction with the factors set forth in 18 U.S.C. § 3553(a)

(2006).     Gall v. United States, 128 S. Ct. 586, 596 (2007).                          “If

[the district court] decides that an outside-Guidelines sentence

is warranted, [it] must consider the extent of the deviation and

ensure    that    the     justification         is    sufficiently         compelling     to

support the degree of the variance.”                         Id. at 597.         Appellate

                                            6
review of a district court’s imposition of a sentence, “whether

inside, just outside, or significantly outside the Guidelines

range,” is for abuse of discretion.         Id. at 591.

           The district court followed the necessary procedural

steps in sentencing Arias, appropriately treating the Sentencing

Guidelines as advisory, properly calculating and considering the

applicable Guidelines range, and weighing the relevant § 3553(a)

factors.       While    the    court   acknowledged   Arias’s     post-arrest

attempt to rehabilitate himself, it nevertheless was concerned

with Arias’s status in the MS-13 gang, his initial failure to

disassociate himself from the gang after his arrest, and the

nature of the offense of conviction.            The court concluded that

“[t]he MS-13 gang – specifically, the LPS clique – is a serious

matter, one that must be deterred and one that must be addressed

with the goal of protecting the public from further crimes of

the defendant and those who participate in this organization.”

           For these reasons, the district court determined that

a   sentence   within    the   applicable   Guidelines    range    “would   be

woefully inadequate” and sentenced Arias to a variance sentence

of fifty-five months.           The court noted that it had chosen a

sentence five months below the statutory maximum, see 18 U.S.C.

§ 924(a)(1)(B)        (2006)    (prescribing   five-year    maximum),       in

recognition      of     Arias’s    rehabilitative      efforts.         After

considering the court’s application of the relevant § 3553(a)

                                        7
factors to the facts in this case and affording “due deference”

thereto, Gall, 128 S. Ct. at 597, we conclude that the district

court’s imposition of a variance sentence did not constitute an

abuse of discretion.

            Accordingly, we affirm the judgment of the district

court.     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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