United States of America v. Ivan Altamirano Perez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IVAN ALTAMIRANO PEREZ,
Defendant - Appellant.
No. 13-4333
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERTO MORALES PEREZ,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00414-WDQ-1; 1:11-cr-00414-WDQ-2)
Submitted: March 31, 2014 Decided: May 1, 2014
Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.

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No. 13-4332 affirmed; No. 13-4333 vacated and remanded by
unpublished per curiam opinion.
Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore,
Maryland; Richard B. Bardos, SCHULMAN, TREEM, KAMINKOW & GILDEN,
PA, Baltimore, Maryland, for Appellants. Rod J. Rosenstein,
United States Attorney, Tamera L. Fine, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Roberto Morales Perez (“Roberto Morales”) pled guilty
pursuant to a written plea agreement to conspiracy to commit
identification document fraud, in violation of 18 U.S.C.
§§ 1028(c)(1), (f) (2012) (count one), Social Security number
fraud, in violation of 18 U.S.C. § 2 (2012) and 42 U.S.C.
§ 408(a)(7)(C) (2012) (count ten), and fraud and misuse of
immigration documents, in violation of 18 U.S.C. §§ 2, 1546
(2012) (count eleven). The district court calculated Roberto
Morales’ Guidelines range at seventy to eighty-seven months’
imprisonment, enhancing his offense level six levels under
U.S. Sentencing Guidelines Manual (“USSG”) § 2L2.1 cmt. n.5
(2012), and sentenced him to concurrent terms of seventy-two
months’ imprisonment on counts one and eleven and a concurrent
term of sixty months’ imprisonment on count ten. Ivan
Altamirano Perez (“Ivan Altamirano”) pled guilty to conspiracy
to commit identification document fraud, in violation of
18 U.S.C. §§ 1028(c)(1), (f) (count one), two counts of
transferring false identification documents, in violation of
18 U.S.C. §§ 2, 1028(a)(2), (c)(1) (counts three and six), two
counts of Social Security number fraud, in violation of
18 U.S.C. § 2 and 42 U.S.C. § 408(a)(7)(C) (counts four and
seven), and two counts of fraud and misuse of immigration
documents, in violation of 18 U.S.C. §§ 2, 1546 (counts five and

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eight). The district court calculated Ivan Altamirano’s
Guidelines range at seventy-eight to ninety-seven months’
imprisonment, enhancing his offense level four levels under USSG
§ 3B1.1(a) for his aggravating role, and sentenced him to
concurrent terms of ninety-seven months’ imprisonment on counts
one, three, five, six, and eight and concurrent terms of sixty
months’ imprisonment on counts four and seven. On appeal,
Defendants challenge the application of the four-level and
six-level enhancements.
We review Ivan Altamirano’s and Roberto Morales’
sentences for reasonableness “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41, 51 (2007). When reviewing a sentence for
reasonableness, we must ensure that the district court correctly
calculated the defendant’s Guidelines range. Id. at 49, 51.
Miscalculation of the Guidelines range qualifies as a
significant procedural error. Id. at 51; United States v.
Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008) (“An error in the
calculation of the applicable Guidelines range, whether an error
of fact or of law, infects all that follows at the sentencing
proceeding, including the ultimate sentence chosen by the
district court, and makes a sentence procedurally
unreasonable.”). In assessing a challenge to the district
court’s application of the Guidelines, we review legal

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conclusions de novo and factual findings for clear error.
United States v. Sosa-Carabantes, 561 F.3d 256, 259 (4th Cir.
2009).
Ivan Altamirano contends that the district court erred
in enhancing his offense level under USSG § 3B1.1(a), arguing
that the enhancement was supported only by out-of-court
statements told to a special agent who testified at the
evidentiary hearing in the district court and that the
Government did not meet its burden to show he qualified for the
enhancement. A defendant qualifies for a four-level enhancement
to his offense level if he “was an organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(a). The district court’s
determination that a defendant was an organizer or leader is a
factual matter reviewed for clear error. United States v.
Thorson, 633 F.3d 312, 317 (4th Cir. 2011).
After review of the parties’ briefs and the record, we
find no reversible procedural error in the district court’s
application of the four-level enhancement to Ivan Altamirano.
A sentencing court properly may “consider ‘any relevant
information before it, including uncorroborated hearsay,
provided that the information has sufficient indicia of
reliability to support its accuracy.’” United States v. Powell,
650 F.3d 388, 392 (4th Cir. 2011) (quoting United States v.

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Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010)). Here, in
applying the four-level enhancement to Ivan Altamirano, the
district court relied on out-of-court statements of cooperating
individuals relayed to the special agent. The court also relied
on statements in exhibits admitted into evidence, the accuracy
and reliability of which are not contested, and the agent’s
testimony based on his investigatory involvement and personal
observations. These latter two categories of evidence
corroborate the statements of the cooperating individuals
identifying Ivan Altamirano as the leader of a fake document
manufacturing organization.
Further, the evidence, taken together, easily supports
the finding that Ivan Altamirano was a leader of criminal
activity. He was identified as a leader of a fake document
manufacturing organization by multiple cooperating individuals.
He controlled the activities of the organization’s document
salesman and rotated responsibility for and the right to receive
proceeds from the sales of fake documents generated with the
organization’s two other leaders. He had involvement in the
logistics of the organization, subletting and paying for the
room that served as the organization’s mill for manufacturing
the fake documents, and there is no dispute that more than five
individuals were involved in the criminal activity.
We therefore conclude that the district court did not reversibly

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err in enhancing Ivan Altamirano’s offense level four levels
under USSG § 3B1.1(a). See United States v. Jones, 356 F.3d
529, 538 (4th Cir. 2004) (affirming application of four-level
enhancement where defendant recruited dealers, controlled
allocation of drugs to dealers, determined how profits were
divided, and handled the logistics and arrangements for the
transactions); United States v. Perkins, 108 F.3d 512, 518
(4th Cir. 1997) (affirming application of enhancement where
defendant “directed the activities of other members of the drug
ring and facilitated the criminal enterprise by renting
apartments, acquiring pagers, hiring a lawyer for a codefendant,
and paying for the bond of another codefendant”).
Roberto Morales challenges the application by the
district court of the six-level upward departure to his offense
level under USSG § 2L2.1 cmt. n.5. Section 2L2.1 of the
Guidelines contains enhancements for document-trafficking
offenses based on the number of documents involved. USSG
§ 2L2.1(b)(2). The maximum enhancement is nine levels, for
offenses involving 100 or more documents. USSG
§ 2L2.1(b)(2)(A)-(C). Application Note 5 to the Guideline
states: “If the offense involved substantially more than 100
documents, an upward departure may be warranted.” USSG § 2L2.1
cmt. n.5.

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Roberto Morales stipulated in his plea agreement that
a nine-level enhancement to his offense level was warranted
under USSG § 2L2.1(b)(2)(C) because his offense involved “100 or
more” documents. The district court applied a six-level upward
departure under USSG § 2L2.1 cmt. n.5 based on its determination
that the number of documents involved was 9900. After review of
the record, however, we conclude that this determination was not
supported by the evidence of record. The district court reduced
the number of fake permanent resident identification cards the
document manufacturing organization could produce based on the
available printing supplies (12,375) by what it determined to be
an organization-wide printing “error rate” of twenty percent
(2475) to arrive at the figure of 9900. Nothing in the record,
however, including hearsay adduced at the evidentiary hearing,
supports the district court’s determination regarding this error
rate.
We reject as unpersuasive the Government’s arguments
that the district court’s application of the six-level
enhancement was supported by its evidence estimating the number
of documents for purposes of USSG § 2L2.1 cmt. n.5 at between
10,000 and 13,500. We further conclude that the district
court’s calculation error was not harmless. See United States
v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011);
United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010).

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The record does not support the conclusion that Roberto Morales
would have received the same sentences had the district court
not applied the six-level upward departure based on its clearly
erroneous calculation of 9900 documents.
Accordingly, in No. 13-4332, we affirm the district
court’s judgment. In No. 13-4333, we vacate the district
court’s judgment and remand for resentencing.* 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.
No. 13-4332 AFFIRMED
No. 13-4333 VACATED AND REMANDED
* By our disposition, we indicate no view as to the
appropriate sentence to be imposed on remand.

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