United States v. Pollino

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AMANZA JAMES POLLINO, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AMANZA JAMES POLLINO, a/k/a Jiggy, Defendant-Appellant.

Nos. 21-4398, 21-4399

United States Court of Appeals, Fourth Circuit

August 16, 2022

UNPUBLISHED

Submitted: April 26, 2022

Appeals from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Senior District Judge. (1:21-cr-00002-JPJ-PMS-1; 1:07-cr-00046-JPJ-1)

ON BRIEF:

Juval O. Scott, Federal Public Defender, Charlottesville, Virginia Nancy C. Dickenson-Vicars, Assistant Federal Public Defender OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant.

Christopher R. Kavanaugh, United States Attorney, Roanoke, Virginia, S. Cagle Juhan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.

Before GREGORY, Chief Judge, and DIAZ and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM

Amanza James Pollino challenges his perjury conviction and the district court's judgment revoking his supervised release. Both the conviction and revocation judgment stem from Pollino's false statements to the district court during an earlier revocation hearing. The district court sentenced him to a 30-month prison sentence for the perjury conviction, to run consecutively with a 12-month sentence for the revocation judgment.

On appeal, Pollino argues that (1) substantial evidence doesn't support his perjury conviction because his false testimony wasn't "material" under 18 U.S.C § 1623, (2) the court erred by applying a three-level enhancement to his Guidelines range for "substantial interference with the administration of justice" under U.S.S.G. § 2J1.3(b)(2), and (3) his revocation sentence was procedurally unreasonable. Because Pollino's false statements were "material" and any sentencing errors were harmless, we affirm.

I.

In 2008, Pollino was convicted of conspiring to distribute five or more grams of cocaine base and possessing the same with intent to distribute.^[1] After serving his 120-month prison sentence, he entered supervised release. In short order, Pollino violated his release conditions several times by possessing and using illegal drugs, including marijuana, cocaine, and Suboxone. For these violations, the district court ordered him to serve a one month revocation sentence, despite a Guidelines range of 12-18 months.

Before the self-report date for his revocation sentence, Pollino was charged by state authorities with driving under the influence and possessing a controlled substance. And then, after serving his one-month revocation sentence, he failed urine screens three months in a row. These violations led to a second revocation hearing.

Pollino testified under oath at that hearing. He discussed his substance-abuse treatment but admitted to the court that he'd been using drugs throughout his treatment program. The government asked when Pollino "last used a controlled substance." J.A. 108. He responded, "maybe a month and a half ago." J.A. 108.

Pollino clarified that he last used marijuana and twice denied using cocaine. The government first asked if he had "used cocaine too" since his last test. J.A. 109. Pollino replied, "[n]o, I haven't since then." Id. Later, the government asked about his plan to avoid driving under the influence of controlled substances like cocaine. J.A. 112. Pollino again explained,

Like I said, right now I haven't used cocaine at all. I've been in a better place. I guess you could say, like my family, even my relationship, everything has been . . . on the positive side. So I've had . . . more positive outlooks and thoughts .... I mean, all I know how to do, sir, is to just strive to do better, to just pick myself up and learn from my mistakes and continue to move forward.

J.A. 112 (emphasis added). He then asked the court to let him continue his treatment rather than incarcerate him.

After hearing Pollino's testimony, the court agreed. Even though it found that Pollino had violated his release conditions, the court said that he was "a truthful person." J.A. 119. The court also remarked that Pollino had a child, was in a more permanent relationship with his girlfriend, had a good job, and "seem[ed] like deep down . . . a responsible person." J.A. 120. Thus, it decided that "sending [] Pollino to jail" wasn't "the answer," even with a Guidelines range of 6-12 months' incarceration. Id. Instead, the court dismissed the violations and allowed Pollino to continue his supervised release. J.A. 122.

A few hours later, however, Pollino's probation officer drug tested him. The test came back positive for cocaine, marijuana, and Suboxone. Though Pollino first denied using cocaine, he signed an affidavit admitting he'd used the drug about a week before the hearing.

A grand jury then indicted Pollino with perjury for lying about his drug use at the second revocation hearing. He chose a bench trial. The court found Pollino guilty after hearing from his probation officer and reviewing the revocation hearing transcript and Pollino's affidavit admitting his cocaine use.^[2] The district court later sentenced Pollino to 30 months' incarceration for the perjury conviction. And in a third revocation hearing on the same day as Pollino's perjury sentencing, the court ordered a consecutive 12-month sentence.

Pollino's presentence report for the perjury case included a three-point enhancement for "substantial interference with the administration of justice" under U.S.S.G. § 2J1.3(b)(2). That guideline provides that "[s]ubstantial interference with the administration of justice" includes "any judicial determination based upon perjury." U.S.S.G. § 2J1.3(b)(2) cmt. n.1. Though the district court at first sustained Pollino's objection to the enhancement, the court (after hearing from the probation officer) agreed with the government that the enhancement applied. With the enhancement, Pollino's Guidelines' range was 46-57 months.

Even so, the court imposed a downward-variant sentence of 30 months' incarceration. And it commented that it "would have imposed the same sentence had [it] not upheld the [three-point enhancement] because [it] believed this [was] the appropriate sentence" given the other sentencing factors. J.A. 289.

The court then sentenced Pollino to 12 months' imprisonment for his supervised-release violations, to run consecutively with his perjury sentence. Though the government requested a 30-month revocation sentence, the court found a sentence at the "low end" of the 12-18-month Guidelines range "appropriate." J.A. 138.

This appeal followed.

II.

We begin with Pollino's claim that his false testimony about his drug use wasn't material to the district court's ruling at his second revocation hearing. If the statements were immaterial, we must vacate his conviction under 18 U.S.C. § 1623(a).

On this issue, we "view the evidence in the light most favorable to the prosecution and decide whether substantial evidence . . . supports the verdict." United States v. Walker, 32 F.4th 377, 397 (4th Cir. 2022) (cleaned up). "Substantial evidence is such evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Spirito, 36 F.4th 191, 199 (4th Cir. 2022) (cleaned up).

Because Pollino hasn't met his "heavy burden" here, we affirm his conviction. United States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018) (cleaned up).

A.

Section 1623(a) requires the government to prove that a defendant's false declaration was material to the court's inquiry.^[3] See United States v. Wilkinson, 137 F.3d 214, 224 (4th Cir. 1998). A declaration is "material" if it "has a natural tendency to influence, or is capable of influencing, the decision-making body to which it was addressed." Id. at 225 (cleaned up).

The district court addressed the materiality element at trial. The question, said the court, wasn't what it would have done had it known about Pollino's "recent cocaine use," but whether Pollino's false statements about his cocaine use "w[ere] capable of influencing" its decision. J.A. 207-08.

The government called Pollino's probation officer to testify. The officer confirmed that recent drug use by a defendant could influence the outcome of a revocation proceeding. J.A. 196. Such conduct "shows that the individual is not trying to better his situation." Id. Not to mention that it's "also against the law to use illegal drugs." Id. And the officer testified that he would have recommended Pollino be incarcerated for the violations because it wasn't "his first supervised release revocation hearing."^[4] J.A. 198.

The court credited this testimony, finding that "recent drug use in a supervised release situation . . . [with] various outcomes of revocation . . . certainly is capable of influencing the outcome." J.A. 208. The court added that Pollino's false statements "were made in the context of his . . . attempt[] to show [the court] . . . that he was trying to improve." J.A. 206. And the court noted it had dismissed Pollino's violations after "[i]ronically" finding him to be "a truthful person." J.A. 207.

B.

On appeal, Pollino doesn't contest that he lied under oath. Rather, he argues that his statements didn't affect "the [c]ourt's consideration of the proper punishment for his revocation case." Appellant's Br. at 12. Pollino admitted to using marijuana-a violation of his supervised release. And a violation is a violation, he says "whether one use[d] the drugs on a Monday or...