UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4502

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

OSCAR ROBERTO SANTOS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:13-cr-00321-RDB-1)

Submitted: March 29, 2019 Decided: April 10, 2019

Before AGEE and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

A.D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland, for Appellant. Robert K. Hur, United States Attorney, P. Michael Cunningham, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Following a four-day trial in October 2017, a federal jury convicted Oscar Roberto

Santos of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (2012),

and possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2012).

The district court subsequently sentenced Santos to 135 months in prison, which was at

the bottom of Santos’ Sentencing Guidelines range of 135-168 months. Santos appeals,

arguing first that the district court erred in denying his motion to suppress an inculpating

statement Santos made after he was advised of his Miranda 1 rights in English, which is

not his native language. Santos also argues that his sentence is procedurally and

substantively unreasonable. We affirm.

I.

Santos first maintains that the district court erred in denying his motion to

suppress the inculpating statement he made to Detective Joshua Rees of the Baltimore

County Police Department, who interviewed Santos while other officers executed a

search warrant for his apartment. Santos, who is a native-Spanish speaker, contends that

the totality of the circumstances weigh in favor of us finding that his Miranda waiver was

not valid because he was apprised of his rights in English. The district court considered

this argument and found that Santos “clearly understood and spoke English.” (J.A. 92). 2

1 Miranda v. Arizona,

(1966). 2 Citations to the “J.A.” refer to the joint appendix submitted by the parties.

2 When evaluating the district court’s ruling on a suppression motion, we review

“conclusions of law de novo and underlying factual findings for clear error.” United

States v. Clarke,

(4th Cir. 2016) (alteration and internal quotation

marks omitted). When, as here, the motion to suppress has been denied, the evidence is

considered in the light most favorable to the Government.

Whenever a defendant is subject to a custodial interrogation, the defendant must

be advised of his Miranda rights. United States v. Azua-Rinconada,

(4th Cir. 2019). Here, the parties agreed that Santos was in custody for purposes of

Miranda, and, therefore, that Santos was entitled to his Miranda rights before being

questioned by Rees.

“A confession made during a custodial interrogation will be suppressed unless

police advise the defendant of his rights under Miranda . . . and the defendant knowingly,

intelligently, and voluntar[il]y waives those rights.” United States v. Giddins,

(4th Cir. 2017) (citation and internal quotation marks omitted). “For a waiver to

be knowing and intelligent, it ‘must have been made with a full awareness of both the

nature of the right being abandoned and the consequences of the decision to abandon it.’”

United States v. Dire,

(4th Cir. 2012) (quoting Moran v. Burbine,

(1986)). When assessing if a Miranda waiver was knowing and intelligent,

this court conducts a holistic review “of the totality of the circumstances surrounding the

interrogation, including the suspect’s intelligence and education, age and familiarity with

the criminal justice system, and the proximity of the waiver to the giving of the Miranda

warnings.”

(internal quotation marks omitted).

3 The issue on appeal is whether Santos’ waiver of his Miranda rights was valid,

given the asserted limitation on Santos’ ability to understand English and the officers’

failure to apprise Santos of his rights in Spanish. We have recognized that a defendant’s

“[l]imited ability to understand English may render a waiver of rights defective[,]” but

that a language barrier will not necessarily frustrate an effective waiver. United States v.

Guay,

(4th Cir. 1997); see Campaneria v. Reid,

(2d Cir. 1989) (“Even though [defendant’s] proficiency in the English language may have

been limited, it did not prevent him from making a knowing and intelligent waiver of his

constitutional rights.”).

Here, the district court made factual findings that, before the interview began,

Rees advised Santos of his rights in English by reading them to the group assembled in

the living room of the apartment and asked Santos if he understood his rights as they

were read to him. Prior to issuing these warnings in English, Rees asked Santos if he

“was comfortable with [Rees] speaking to him in English, and he stated that he was.”

(J.A. 39). Rees proceeded to interview Santos in English, during which Santos spoke

only English and never advised Rees that he did not understand something Rees was

saying because he was speaking English. Finally, as the district court observed, Santos’

20-year presence in the United States and his status as a naturalized citizen undermined

the claimed inability to understand the Miranda warnings. Based on the totality of the

evidence proffered at the evidentiary hearing, we discern no clear error in the district

court’s ruling that Santos understood English well enough to have comprehended his

4 Miranda rights, 3 and thus hold that the court properly concluded that Santos voluntarily,

intelligently, and knowingly waived those rights. See, e.g., United States v. Rodriguez-

Preciado,

(9th Cir. 2005) (holding that Spanish-speaking

defendant’s Miranda waiver was valid because defendant indicated he understood his

rights after they were read to him in English, and there was no outward indicia that

defendant had trouble understanding English).

II.

Santos next asserts that his 135-month sentence is procedurally unreasonable

because the district court failed to address each of the nonfrivolous reasons he asserted

for a below-Guidelines sentence. Assuming the court finds no reversible procedural

error, Santos alternatively argues that his within-Guidelines sentence is substantively

unreasonable given many of these same considerations. We find no merit in either

contention.

We review the reasonableness of a sentence for an abuse of discretion. United

States v. Lymas,

(4th Cir. 2015). In conducting this review, we first

consider whether the district court committed a significant procedural error, such as

failing to consider the

(a) (2012) factors or failing to adequately explain

the chosen sentence. Gall v. United States,

(2007). When rendering a

sentence, the district court must make and “place on the record an individualized

3 We have reviewed the excerpt of the recorded interview provided by the parties and agree that it amply substantiates this factual finding. (See J.A. Vol. III).

5 assessment based on the particular facts of the case.” United States v. Carter,

(4th Cir. 2009) (internal quotation marks omitted). The court’s explanation

must be sufficient “to satisfy the appellate court that [it] has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority.” Rita v. United States,

(2007). “Where the defendant or

prosecutor presents nonfrivolous reasons for imposing a different sentence than that set

forth in the advisory Guidelines, a district judge should address the party’s arguments and

explain why he has rejected those arguments.” United States v. Bollinger,

(4th Cir. 2015) (internal quotation marks omitted).

Santos does not contest the computation of his Guidelines range or the adequacy

of the district court’s explanation for the selected sentence. He does contend, however,

that the district court procedurally erred in failing to address each of the nonfrivolous

reasons advanced in favor of a below-Guidelines sentence.

As a starting point, we observe that the court did an exemplary job explaining the

selected 135-month sentence in terms of the particular § 3553(a) factors it found to be

most relevant in this case, particularly that Santos absconded prior to trial and remained a

fugitive for three years, see

(a)(1); the serious and egregious nature of

the offense, which included violent images of child pornography, and that Santos had

shown his consistent and enduring disrespect for the law, see

(a)(2)(A);

and the need to avoid an unwarranted sentencing disparity between Santos and other

defendants convicted of similar child pornography offenses, see

(a)(6).

While the record confirms that the district court did not speak directly to the primary

6 arguments offered in mitigation—namely, Santos’ age and medical conditions; the

likelihood of his denaturalization and removal to Honduras; and that his was a non-

contact offense and did not involve transmission of child pornography—what statements

the court did make demonstrate that the sentencing judge considered the defendant’s

individual characteristics and history, as well as the circumstances of this offense, see

(a)(1), in fashioning its sentence, see Rita,

. Further, the

district court expressly rejected defense counsel’s argument that a five-year sentence was

appropriate because it did not account for the three years that Santos was a fugitive and

opined that there was “absolutely no basis” to impose a sentence below the Guidelines

range in this case. (J.A. 203). Thus, while “the district court did not engage counsel in a

discussion about the merits of [the defendant]’s arguments for a downward departure,”

United States v. Blue,

(4th Cir. 2017), the district court’s statement

that there was no basis for a below-Guidelines sentence, coupled with its robust

explanation for the selected sentence, satisfies us that the court considered, and simply

rejected, the proffered reasons for a below-Guidelines sentence. Accordingly, we reject

Santos’ assignment of procedural error. See United States v. Lynn,

(4th Cir. 2010) (observing that, in Rita, “the appellate court could look to the district

court’s lengthy discussion with, and questioning of, defense counsel and determine that

the district court understood the defendant’s arguments for a reduced sentence and had

reasons for rejecting those arguments”).

Finally, we turn to Santos’ challenge to the substantive reasonableness of his

sentence. Gall,

. We presume that a sentence within or below a properly

7 calculated Guidelines range is substantively reasonable. United States v. Susi,

(4th Cir. 2012); see Blue,

. “Such a presumption can only be

rebutted by showing that the sentence is unreasonable when measured against the

(a) factors.” United States v. Louthian,

(4th Cir. 2014).

Santos’ 135-month sentence was the lowest sentence available under the

calculated Guidelines range. To undermine the presumption of reasonableness that thus

attaches to this sentence, Santos relies on the same core reasons advanced to support his

request for a downward variance: that the selected sentence “is unduly harsh” given his

lack of criminal history, “age, health, likelihood of denaturalization, deportation and the

difficulties he and his family will face in Honduras.” (Appellant’s Br. (ECF No. 12) at

11).

But this argument simply invites us to reweigh the § 3553(a) factors and the

relevant circumstances in this case, which is outside our purview. See United States v.

Jeffery,

(4th Cir. 2011) (recognizing that “district courts have

extremely broad discretion when determining the weight to be given each of the

§ 3553(a) factors”). On this record, we discern no abuse of the district court’s

considerable sentencing discretion in electing to give controlling weight to the need to

promote respect for the law, given Santos’ three-year flight from justice, and to the need

to penalize Santos for his egregious offense conduct, which reflects the seriousness of

child pornography offenses. Accordingly, we hold that Santos fails to overcome the

presumption of substantive reasonableness afforded his within-Guidelines sentence.

8 For these reasons, we affirm the criminal judgment. 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

9