United States of America v. Booker, 125 S. Ct. 738 2005 . Querubin claims the district court erred when it…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4562
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENANTE BONITO QUERUBIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-04-2)
Submitted: August 24, 2005 Decided: October 11, 2005
Before LUTTIG, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Robert B. Rigney, PROTOGYROU & RIGNEY, P.L.C., Norfolk, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Laura M. Everhart, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Renante Bonito Querubin was convicted of possession with
intent to distribute 73.91 grams of methamphetamine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii) (2000), and possession of
a firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1) (2000). We affirm Querubin’s convictions,
but we vacate his sentence and remand for resentencing in light of
United States v. Booker, 125 S. Ct. 738 (2005).
Querubin claims the district court erred when it denied
his motion to suppress his statements to the police because police
officers violated his right to remain silent under Miranda v.
Arizona, 384 U.S. 436 (1966). This court reviews the district
court’s factual findings underlying a motion to suppress for clear
error and the district court’s legal determinations de novo.
Ornelas v. United States, 517 U.S. 690, 699 (1996). A defendant
may waive his constitutional rights to remain silent and to have
counsel present if he does so “voluntarily, knowingly and
intelligently.” Miranda, 384 U.S. at 444.
Querubin claims he could not understand the Miranda
warnings because he is not fluent in English. While the limited
ability to understand English may render a waiver of rights
defective, a language barrier will not necessarily frustrate an
effective waiver. See United States v. Guay, 108 F.3d 545, 549
(4th Cir. 1997). The police officers read Querubin his rights in

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English and he responded in English that he understood those
rights. The district court listened to a tape recording of the
interview and noted that Querubin answered the questions in English
with detail. The language barrier did not frustrate an effective
waiver of Querubin’s Miranda rights and the district court did not
err when it denied his motion to suppress.
Querubin claims that the district court erred when it
denied his motion in limine to exclude witness testimony about
Querubin’s prior drug possession. The decision to admit evidence
is reviewed on appeal for an abuse of the trial court’s discretion;
the relevant inquiry therefore is whether the district court’s
exercise of discretion was “arbitrary or irrational.” See United
States v. Ellis, 121 F.3d 908, 926 (4th Cir. 1997).
The witnesses testified about events during the year
prior to Querubin’s arrest, but did not testify about the events
charged in the indictment. The witness testimony provided context
and was probative of Querubin’s methamphetamine activities. “While
[Fed. R. Evid.] Rule 404(b) forecloses admission of similar acts
evidence simply to prove a defendant’s bad character, it permits
such evidence where necessary to provide the context or res gestae
of the charged offenses.” United States v. Brewer, 1 F.3d 1430,
1436 (4th Cir. 1993). The testimony was relevant to show
Querubin’s intent to distribute the methamphetamine, the events
testified about occurred only a few months prior to his arrest, the

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testimony was reliable because it was similar in many respects to
Querubin’s statement to the police, and it was not unfairly
prejudicial to Querubin. See United States v. Queen, 132 F.3d 991,
994-95 (4th Cir. 1997). The district court did not abuse its
discretion in denying Querubin’s motion in limine and admitting
into evidence the witnesses’ testimony.
Querubin next claims that the district court erred at
sentencing when it denied him a two-point reduction for acceptance
of responsibility. Querubin did not plead guilty; instead, he went
to trial. The adjustment for acceptance of responsibility “is not
intended to apply to a defendant who puts the government to its
burden of proof at trial.” U.S. Sentencing Guidelines Manual,
§ 3E1.1, comment. (n.2) (2003). A defendant may go to trial and
still receive an adjustment for acceptance of responsibility, but
such circumstances are rare and only warranted if the defendant
went to trial “to assert and preserve issues that do not relate to
factual guilt.” Id. The district court did not clearly err when
it found that Querubin did not qualify for an acceptance of
responsibility adjustment.
Querubin claims the district court erred by not granting
him a downward departure from his sentencing guideline range. A
sentencing court’s decision not to depart downward is not
reviewable on appeal unless the district court’s decision resulted
from a mistaken belief that it lacked the legal authority to

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depart. United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002).
The record discloses that the district court was aware of its
authority to depart and exercised its discretion in deciding not to
depart. Therefore, this claim is not properly before us.
Querubin claims the district court erred in calculating
his criminal history category because the district court assigned
him criminal history points for the commission of the crime while
on probation for a prior offense pursuant to USSG §§ 4A1.1(d),
4A1.2. He claims this enhancement violated Booker because the
district court’s finding that he committed the offense while on
probation was a fact not found by the jury beyond a reasonable
doubt.
In Almendarez-Torres v. United States, 523 U.S. 224
(1998), the Supreme Court held that “the government need not allege
in its indictment and need not prove beyond reasonable doubt that
a defendant had prior convictions for a district court to use those
convictions for purposes of enhancing a sentence.” See also United
States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (noting that
Almendarez-Torres was not overruled by Booker). In United
States v. Washington, 404 F.3d 834, 842-43 (4th Cir. 2005), this
court, applying Shepard v. United States, 125 S. Ct. 1254 (2005),
held that relying on facts outside the indictment in order to
conclude a prior conviction for burglary was a crime of violence
that enhanced the defendant’s offense level was plain error

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*Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
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warranting correction. Querubin’s case is distinguishable from the
facts in Washington because the district court’s assessment of
criminal history points in this case only required that the
district court determine when Querubin committed the offenses
relative to the date of the instant offense and how long his
probation lasted. The district court’s assessment of criminal
history points because Querubin was under a criminal justice
sentence when he committed the charged offenses was not improper.
See Shepard, 125 S. Ct. at 1263.
Querubin finally claims that the district court
improperly sentenced him when it attributed a drug quantity to him
greater than that found by the jury. Querubin preserved this issue
for appeal by raising it in the district court. In Booker, the
Supreme Court concluded that the mandatory manner in which the
federal sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the judge by a preponderance
of the evidence violated the Sixth Amendment. Booker, 125 S. Ct.
at 746, 750. Here, the district court’s use of 993.6 grams of
methamphetamine and 28.1 grams of marijuana went beyond the jury’s
verdict because the jury found Querubin responsible for only 73.91
grams of methamphetamine. In light of Booker, we vacate Querubin’s
sentence and remand the case for resentencing. * Although the

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time” of Querubin’s sentencing.
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sentencing guidelines are no longer mandatory, Booker makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” 125 S. Ct. at 767. On
remand, the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (applying Booker on plain error
review). The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id. The
sentence must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 546-47.
We affirm Querubin’s convictions. In light of Booker, we
vacate Querubin’s sentence and remand for resentencing. 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 IN PART; VACATED
AND REMANDED IN PART

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