-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1780
UNITED STATES OF AMERICA,
Appellee,
v.
MAXIMO E. TEJADA-BELTRAN, ALIAS, ETC.,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________
_________________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Selya, Circuit Judge. _____________
_________________________
Jose M. Feliciano-Valera on brief for appellant. ________________________
Guillermo Gil, United States Attorney, Jose A. Quiles- ______________ _________________
Espinosa, Senior Litigation Counsel, and Jeanette Mercado-Rios, ________ _____________________
Assistant United States Attorney, on brief for appellee.
_________________________
March 31, 1995
_________________________
SELYA, Circuit Judge. This is another in the ever- SELYA, Circuit Judge. _____________
lengthening queue of sentencing appeals that have crowded federal
appellate dockets since the advent of guideline sentencing.
After carefully considering appellant's asseverations, we affirm.
I. BACKGROUND I. BACKGROUND
Because appellant's conviction and sentence stem from a
guilty plea rather than a trial, we derive the pertinent facts
from the presentence investigation report (PSI Report) and the
transcripts of the change-of-plea and disposition hearings. See ___
United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). _____________ _____
On September 20, 1993, federal authorities arrested two
women, both of whom were citizens of the Dominican Republic, at
San Juan's principal international airport.1 The women had
unsuccessfully attempted to gain entry into the United States
using ersatz passports. In short order, the authorities
determined that defendant-appellant Maximo E. Tejada-Beltran
(Tejada) had furnished the bogus documents and had offered to pay
a student apprentice employed on a part-time basis by the
Immigration and Naturalization Service (INS) $1,000 per head to
ensure his clients' unlawful entry.
On September 24, the apprentice arranged a meeting
between Tejada and an undercover agent. During the course of
this session, appellant offered to pay the agent, who was posing
as a corrupt INS inspector, a bounty of $1,000 for each alien who
____________________
1All events occurred in 1993 unless otherwise specifically
indicated.
2
was permitted to sneak into the United States from the Dominican
Republic. The men struck a deal. Appellant suggested that the
bribes be paid at the inspection booth coincident with the
illegal entries and forecast that clients would begin to arrive
between September 26 and October 2.
On October 2, appellant spoke with the agent, told him
he had scheduled an arrival for the next day, described the
traveller, and confirmed that he would be carrying a fraudulent
passport made out in an assumed name. Appellant informed the
agent that the alien would pay him upon arrival. On October 3,
the alien reported to the inspection booth and handed the agent
an envelope containing $1,000 in cash. The agent thereupon
facilitated the smuggle. That evening, appellant confirmed his
client's successful entry and told the agent that his father, who
lived in Puerto Rico, would retrieve the fraudulent passport so
that it could be recycled for future use. He also speculated
that, in the future, his father, rather than his clients, might
make the payoffs to the agent.
In the weeks that followed, appellant identified a
steady stream of clients to the agent, regularly promising to pay
him $1,000 for each illegal alien who entered without incident.
These arrangements were consummated client by client, on
different dates. On each occasion appellant provided the agent
with the name and description of the alien or aliens in question,
the anticipated arrival date, and a suggested method of payment.
For example, on October 7, appellant arranged for the agent to
3
admit two clients bearing resident alien cards that belonged to
relatives. The next day, when the aliens gained entry, each of
them delivered an envelope containing $1,000 to the agent.2
Appellant often boasted about his connections. He told
the agent that he had people in Puerto Rico who would pay United
States citizens to petition the State Department for passports or
kindred documents, and then turn them over to appellant for use
in his nefarious scheme. Appellant also bragged about a wide
array of quondam accomplices: a person who had access to
sophisticated machinery that could be used to alter authentic
documents, such as United States passports and alien registration
cards, and who would forge documents for him in the Dominican
Republic; two immigration inspectors at airports in the Dominican
Republic who accepted bribes to assist in the smuggles; a person
in New York who would facilitate the illegal immigration of
aliens entering the country via New York; and an individual in
Miami who, on request, would obtain "secure" ink (supposedly
available only to the government) that could then be used to
doctor United States passports. In addition to this cadre of
confederates, appellant also mentioned that he would from time to
time hire attorneys to represent aliens caught in the toils when
planned entries went awry.
Between October 16 and November 6, appellant negotiated
the illegal entry of at least seven more clients. When,
____________________
2Notwithstanding the agent's efforts, the authorities
arrested one of these men when they discovered he had a prior
felony conviction in the United States.
4
thereafter, appellant told the agent that he wanted two
particular aliens admitted, and that he, personally, would pay
$2,000 to smooth the way, the INS decided to spring the trap. The
authorities arrested appellant on November 16 while he was
delivering the $2,000 gratuity to the agent. At the time of his
apprehension, arrangements had already been made for the illegal
entry of three more aliens (scheduled to arrive later that day).
In a matter of weeks, a federal grand jury handed up a
22-count indictment (summarized in the Appendix). The first ten
counts charged appellant with encouraging or inducing specified
aliens illegally to enter the United States, in violation of 8
U.S.C. 1324(a)(1)(D); the next five counts charged appellant
with furnishing altered passports to specific aliens to be used
to gain admittance into the United States, in violation of 18
U.S.C. 1543; and the remaining seven counts charged appellant
with bribery of a public official, in violation of 18 U.S.C.
201(b)(1)(C).
After some preliminary skirmishing (not relevant here),
appellant pled guilty to four counts of encouraging or inducing
aliens illegally to enter the United States (counts 1, 3, 5, 6),
three counts of furnishing altered passports (counts 11, 13, 14),
and three counts of bribery (counts 16, 17, 18). On June 24,
1994, the district court convened the disposition hearing.3
____________________
3A sentencing court customarily applies the guidelines in
effect on the date of sentencing. See United States v. Bell, 953 ___ _____________ ____
F.2d 6, 7 (1st Cir. 1992); United States v. Harotunian, 920 F.2d _____________ __________
1040, 1041-42 (1st Cir. 1990). Accordingly, this case is
governed by the November 1, 1993, edition of the guidelines, and
5
Relying for the most part on the findings and recommendations
contained in the PSI Report, the court treated the bribery counts
as predominant; set the base offense level at 10, see U.S.S.G. ___
2C1.1, 3D1.3; raised it by two levels because appellant's
misconduct involved multiple bribes, see U.S.S.G. 2C1.1(b)(1); ___
applied an increase of three more levels because the bribes, in
the aggregate, had a value in excess of $10,000, see U.S.S.G. ___
2C1.1(b)(2)(A), 2F1.1(b)(1)(D); added four more levels because
of appellant's role in the offense, see U.S.S.G. 3B1.1(a); and ___
subtracted three levels for acceptance of responsibility, see ___
U.S.S.G. 3E1.1. The district court then calculated the
guideline sentencing range at 21-27 months (offense level
16/criminal history category I); imposed a 27-month incarcerative
sentence (accompanied by a three-year term of supervised release
and a $500 special assessment); and dismissed the other twelve
counts contained in the indictment. This appeal followed.
II. ANALYSIS II. ANALYSIS
On appeal, Tejada assigns error in two respects.4 We
address his claims seriatim. ________
A. Relevant Conduct. A. Relevant Conduct. ________________
____________________
all references in this opinion are to that version.
4In the district court, appellant also argued that each of
the bribery counts represented installment payments referable to
a single bribe, and, hence, could not carry the weight of a two-
level increase under U.S.S.G. 2C1.1(b)(1). The court below
rejected this argument, and appellant has not renewed it on
appeal. Thus, we deem it to be waived. See United States v. ___ _____________
Slade, 980 F.2d 27, 30 n.3 (1st Cir. 1992); United States v. St. _____ _____________ ___
Cyr, 977 F.2d 698, 701 (1st Cir. 1992). ___
6
Appellant strives to persuade us that the record in
this case will not support a finding, by a fair preponderance of
the evidence, that the offense of conviction involved bribes
totalling more than $10,000. Since this exhortation challenges
the sentencing court's findings of fact, our review is for clear
error. See United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. ___ _____________ _______
1992). We discern none.
With respect to offenses involving bribery of public
officials, the sentencing guidelines use the amount of the bribe
offered or given as an important indicium in fixing the
defendant's offense level and, hence, the ultimate sentencing
range. See U.S.S.G. 2C1.1(b)(2)(A); 2F1.1(b)(1). The ___
aggregate amount of the covered bribes is to be derived from the
sum total of all relevant conduct a datum that can be arrived
at only after consideration of all acts "that were part of the
same course of conduct or common scheme or plan as the offense of
conviction." U.S.S.G. 1B1.3(a)(2); see generally United States ___ _________ _____________
v. Sklar, 920 F.2d 107, 110 (1st Cir. 1990); United States v. _____ _____________
Blanco, 888 F.2d 907, 910 (1st Cir. 1989). Assembling this ______
compendium requires the sentencing court to consider both
consummated and unconsummated bribes. The failure to consummate
a bribe neither detracts from the donor's culpability nor renders
the amount involved ineligible for use in setting the donor's
offense level; the guidelines treat solicitations and attempts as
equivalent to completed offenses. See U.S.S.G. 2C1.1(b)(2)(A), ___
comment. (backg'd).
7
At the disposition hearing, the lower court relied
heavily on the PSI Report. It concluded that appellant had
offered or given no fewer than twelve bribes, each in the amount
of $1,000. At bottom, this conclusion is the product of simple
multiplication: the price per alien times the number of aliens
smuggled.
As to the first integer, the court could plausibly have
found the price to be $1,000, per head. After all, the record
indicates that appellant offered to pay the apprentice $1,000
apiece for the first two aliens admitted, and that he had an
ongoing agreement with the undercover agent to pay the same
price. These facts adequately ground an inference that appellant
offered or gave a $1,000 bribe for each client whom he endeavored
to smuggle into the United States.
By like token, the court could plausibly have found
that no fewer than twelve aliens were involved. The court
identified the aliens it had in mind by reference to particular
incidents, citing the five client arrivals that undergirded
counts 1 through 5, all of which occurred between September 20
and October 8, and "at least seven" additional arrivals occurring
between October 16 and the first week in November.5 Appellant
would have us draw the line at those aliens specified in the
____________________
5Tejada asserts for the first time on appeal that only five
illegal aliens entered between October 16 and November 6.
Because he did not advance this assertion below, he has waived
any right to raise the issue on appeal. See Dietz, 950 F.2d at ___ _____
55. At any rate, the assertion lacks force. It fails to
recognize that, in determining relevant conduct, the judge could
and did go beyond the incidents described in the indictment.
8
counts of conviction, but this approach misperceives the method
of the guidelines. Relevant conduct is not limited to the counts
of conviction. It may include acts that were embodied in counts
originally charged but later dropped, see, e.g., United States v. ___ ____ _____________
Garcia, 954 F.2d 12, 15 (1st Cir. 1992), and acts that were never ______
charged at all, see U.S.S.G. 1B1.3, comment. (backg'd). For ___
present purposes, this means that the sentencing court, in
fashioning the three-level enhancement under section
2C1.1(b)(2)(A), could appropriately aggregate all bribes offered
or given by appellant as part of the same course of conduct as
the offense of conviction, whether or not charged in the
indictment and whether or not encompassed by his guilty plea.
This gets the grease from the goose. On this record,
the sentencing court could certainly have included the ten aliens
mentioned in the indictment (including those aliens who were
mentioned in counts that were eventually dismissed). Although
appellant argues that the first two incidents, in which he dealt
with the student apprentice rather than the undercover agent,
were outside the scope of relevant conduct, and, hence, not
properly includable, we believe that the court below had ample
room to reach the opposite conclusion. Because the apprentice
introduced Tejada to the undercover agent, we think that the
court could rationally have viewed the serial bribes as part of a
single scheme and aggregated all the entries under the relevant
conduct rubric.
Over and above these ten, the court also enumerated two
9
other aliens for whose entry appellant negotiated with the
undercover agent during the period from October 16 through
November 6. While these persons were not named in the
indictment, the PSI Report and the audiotapes of appellant's
conversations with the agent adequately support their inclusion.
No more is exigible. See United States v. Gonzalez-Vazquez, 34 ___ _____________ ________________
F.3d 19, 25 (1st Cir. 1994) (explaining that "[f]acts contained
in a presentence report ordinarily are considered reliable
evidence for sentencing purposes"); United States v. Morillo, 8 _____________ _______
F.3d 864, 872 (1st Cir. 1993) (same). If more were needed to
bell the cat, appellant was in the process of delivering a $2,000
bribe at the time of his arrest, and had three more smuggles in
the offing. Though these entries were not in fact accomplished,
they could nonetheless be counted in determining relevant
conduct.
A sentencing court "need only make a reasonable
estimate of the loss, given the available information." U.S.S.G.
2F1.1, comment. (n.8). Measured by this yardstick, the court
below had a sound basis both for concluding that appellant
attempted to facilitate the illegal entries of at least twelve
aliens, and for multiplying that number of aliens by $1,000 per
head to obtain the overall amount of the bribes offered or given
during the course of the scheme. Even if the record, read
generously to appellant, might conceivably support some less
damning scenario and we do not suggest that it can we would
not meddle. Our review is only for clear error and "where
10
there is more than one plausible view of the circumstances, the
sentencing court's choice among supportable alternatives cannot
be clearly erroneous." United States v. Ruiz, 905 F.2d 499, 508 _____________ ____
(1st Cir. 1990).
B. Role in the Offense. B. Role in the Offense. ___________________
U.S.S.G. 3B1.1(a) provides for elevating the offense
level of "an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive" by
four levels. The district court seized upon this guideline and
hiked appellant's offense level on the theory that he was the
organizer of an extensive criminal enterprise. Appellant assigns
error because, in his view, the record fails to disclose that he
exercised any degree of control over others, that he brought
others together for the purpose of carrying out the crime, or
that the criminal activity encompassed five or more participants.
Assessing a defendant's role in the offense is a fact-
specific task, suggesting by its very nature "that considerable
respect be paid to the views of the nisi prius court." United ______
States v. McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990) (quoting ______ ________
United States v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990)). It _____________ ______
follows, therefore, that unless a mistake of law looms and we
see none here a sentencing court's determination of a
defendant's role will be set aside only for clear error. See id. ___ ___
In order to invoke section 3B1.1(a), a district court
must make both a status determination a finding that the
11
defendant acted as an organizer or leader of the criminal
activity and a scope determination a finding that the
criminal activity met either the numerosity or the extensiveness
benchmarks established by the guideline. See McDowell, 918 F.2d ___ ________
at 1011; United States v. Preakos, 907 F.2d 7, 9-10 (1st Cir. _____________ _______
1990) (per curiam). Tejada's case easily passes both aspects of
the test.
1. Status. Although the sentencing guidelines do not 1. Status. ______
specifically define the term "organizer" as used in section
3B1.1, the commentary supplies a valuable clue. It tells courts
that "[t]his adjustment is included primarily because of concerns
about relative responsibility." U.S.S.G. 3B1.1, comment.
(backg'd); see generally United States v. Herrera, 878 F.2d 997, ___ _________ _____________ _______
1000 (7th Cir. 1989). Because the Sentencing Commission
envisions large-scale criminal activities as hierarchical, the
guidelines punish the persons atop the pyramid more severely
based on their relative responsibility.
To aid in the process of distinguishing top-echelon
roles from other, less culpable, managerial or supervisory roles,
the Commission directs judges' attention to seven factors
including "the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share
of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority
12
exercised over others." U.S.S.G. 3B1.1, comment. (backg'd).
This list is intended to be representative rather than
exhaustive. See, e.g., United States v. Talladino, 38 F.3d 1255, ___ ____ _____________ _________
1260 (1st Cir. 1994) (explaining that the seven telltales
identified in the Commission's commentary, while useful as
guideposts, do not possess "talismanic significance"). There
need not be proof of each and every factor before a defendant can
be termed an organizer or leader. See Preakos, 907 F.2d at 9; ___ _______
see also United States v. Rodriguez Alvarado, 985 F.2d 15, 20 ___ ____ ______________ __________________
(1st Cir. 1993) (illustrating that a court appropriately may
enhance a defendant's offense level under 3B1.1(a) or (b)
despite the lack of any evidence as to one or more of the listed
factors).6
Appellant's most touted argument is that he cannot be
deemed an organizer because our decision in United States v. _____________
Fuller, 897 F.2d 1217 (1st Cir. 1990), requires a finding of the ______
exercise of some degree of control over other individuals before
a defendant becomes eligible for any of the aggravating role
adjustments described in section 3B1.1. But appellant reads
Fuller through rose-colored spectacles. There, the defendant ______
contended that he should not have received an upward role-in-the-
offense adjustment because the government adduced no proof that
he recruited anyone to assist him with his criminal activities,
____________________
6In Rodriguez Alvarado, the district court enhanced the ___________________
defendant's sentence although only three of the seven factors
(recruitment of accomplices, a substantial role in planning the
crime, and the extensive scope of the illegal activity) were
present.
13
or that he directed other persons in carrying out criminal
activities. See Fuller, 897 F.2d at 1219. We vacated Fuller's ___ ______
sentence, concluding that
in the absence of any evidence that Fuller
exercised control over [other] persons or was ______
otherwise responsible for organizing them in _____________________________________________
the commission of the offense, the mere fact ______________________________
that Fuller had dealt with a large quantity
of marijuana does not support a finding that
he was an organizer, leader, supervisor, or
manager.
Id. at 1221 (emphasis supplied). Thus, Fuller, properly read, ___ ______
stands for the proposition that section 3B1.1 "does not apply to
a defendant who merely organizes or supervises criminal activity
that is executed without the aid of others." Id. at 1220 _______________________________________________ ___
(emphasis supplied); see also Rodriguez Alvarado, 985 F.2d at 20 ___ ____ __________________
(holding that the sentencing court did not err when it enhanced
appellant's sentence as a "manager or supervisor" based on his
role in planning and organizing a criminal scheme involving
others, despite the absence of any finding concerning appellant's
control over underlings or subordinates); see generally U.S.S.G. ___ _________
3B1.1, comment. (n.2) (explaining that an upward adjustment
under 3B1.1 requires that "the defendant must have been the
organizer, leader, manager, or supervisor of one or more other ______________________
participants") (emphasis supplied). Thus, Fuller does not help ____________ ______
appellant; his crimes were not and could not have been
committed without the complicity of others.
Fuller aside, appellant posits that control over a ______
minimum of four others (bringing the total number of criminally
culpable participants, including the defendant, to five) is a
14
sine qua non for a finding that a particular person is an ____ ___ ___
organizer within the ambit of section 3B1.1(a). In mounting this
steed, appellant in effect treats the terms "organizer" and
"leader" as synonymous, or, at the least, as functionally
equivalent. This lack of precision is arguably to his advantage
because some courts have required the exercise of direct control
over others as an attribute of leadership status.7 In the final
analysis, however, the terms cannot be casually conflated. The
language of section 3B1.1(a) is disjunctive. The guideline
demands the four-level increase so long as the defendant is
either "an organizer or leader." [Emphasis supplied]. ______ __
This disjunctive usage cannot be written off as
linguistic happenstance. We can only assume that the Sentencing
Commission used both words "organizer" and "leader" because
it knew that they had distinct and disparate meanings. While the
term "leader" implies the exercise of some degree of dominance or
____________________
7While a defendant may be classified as an "organizer" under
section 3B1.1(a) even if he did not personally control other
participants in an "extensive" criminal enterprise, see text ___
infra, some courts have held that a defendant may not receive a _____
3B1.1(a) enhancement as a "leader" unless he personally controls
at least four other participants or the criminal activity is
found to be "otherwise extensive." See United States v. Carson, ___ _____________ ______
9 F.3d 576, 584 (7th Cir. 1993), cert. denied, 115 S. Ct. 135 _____ ______
(1994); United States v. Reid, 911 F.2d 1456, 1465 n.8 (10th Cir. _____________ ____
1990), cert. denied, 498 U.S. 1097 (1991). It remains an open _____ ______
question in this circuit as to whether a defendant must
personally control a bare minimum of four other participants in
order to receive a section 3B1.1(a) enhancement as a "leader" of
criminal activity involving five or more participants, or whether
the two determinations leadership status and minimum number of
participants are made independently of one another. See, e.g., ___ ____
United States v. Dota, 33 F.3d 1179, 1189 (9th Cir. 1994), ______________ ____
petition for cert. filed (U.S. Jan. 9, 1995) (No. 94-7604). ________ ___ _____ _____
Tejada's case does not require us to answer this question.
15
power in a hierarchy, and also implies the authority to ensure
that other persons will heed commands by definition, one cannot
lead if no one follows the term "organizer" has a different
connotation. One may be classified as an organizer, though
perhaps not as a leader, if he coordinates others so as to
facilitate the commission of criminal activity. See Rodriguez ___ _________
Alvarado, 985 F.2d at 20 (finding enhancement warranted where ________
"appellant played an important role in planning and organizing
the offense"); accord United States v. Varela, 993 F.2d 686, 691 ______ _____________ ______
(9th Cir.) ("An enhancement may be proper where . . . a defendant
organizes others in the commission of the criminal activity even
though he does not retain a supervisory role over the other
participants."), cert. denied, 114 S. Ct. 232 (1993); United _____ ______ ______
States v. Harry, 960 F.2d 51, 54 (8th Cir. 1992) ("[D]efendant ______ _____
need not have directly controlled others in the organization to
have functioned as an organizer."). The key to determining
whether a defendant qualifies as an organizer is not direct
control but relative responsibility. Cf., e.g., United States v. __ ____ _____________
Skinner, 986 F.2d 1091, 1097-98 (7th Cir. 1993) (suggesting that _______
in reviewing aggravating role enhancements, an appellate court's
principal focus must be on relative responsibility rather than
upon any one of the seven Commission-identified factors). When,
as now, the organizer stages an extensive activity in such a way
as to evince an increased degree of relative responsibility, the
four-level enhancement applies whether or not he retains
supervisory control over the other participants. See Varela, 993 ___ ______
16
F.2d at 691-92 (explaining that "[t]he enhancement reflects the
greater level of culpability of the participant who arranges the
transaction"); see also Rodriguez Alvarado, 985 F.2d at 20 ___ ____ ___________________
(finding enhancement warranted when the defendant's activities
"entailed an increased degree of responsibility for the
commission of the offense").
In this instance, we think it is nose-on-the-face plain
that the sentencing court did not err in ranking appellant as an
organizer. The record attests, directly or by fair inference,
that appellant orchestrated the entire scheme, played a pivotal
role in committing the crimes, made decisions about when and
where unlawful entries would be attempted, recruited accomplices,
and retained a degree of control over at least one of them (the
document retriever). Viewed from any angle, he bears significant
responsibility for the scheme.8
We hold that retention of control over other
participants, although sometimes relevant to an inquiry into the
status of a putative organizer, is not an essential attribute of
organizer status. Because an organizer is at bottom a person who
forms diverse elements into a whole consisting of interdependent,
coordinated parts, geared for concerted action, see, e.g., The ___ ____ ___
Random House Dictionary of the English Language 1365 (2d ed. __________________________________________________
____________________
8Indeed, at the disposition hearing, appellant freely
admitted that he alone was responsible for the "planning,
coordinating, and executing" of the scheme, the recruitment of
aliens, and the supply of documents to them. In light of this
admission, the district court aptly stated that "all these people
independently would not have produced a successful . . .
enterprise unless somebody was organizing the whole. . . ."
17
1987), supervisory control lacks decretory significance. Here,
appellant acted as the very prototype of an organizer, serving as
a magnet to bring others together and thereby lend feasibility to
the commission of the crime. Hence, notwithstanding the lack of
any proof that he exercised direct supervision over his
confederates, his behavior satisfies the first prong of the test.
2. Scope. The test's remaining prong is also 2. Scope. _____
fulfilled. In the first place, the district court's
determination that the criminal enterprise was "extensive" is
solidly anchored in the record: the breadth of the activities,
whether measured in terms of duration, number of clients, or
geographic reach, argues persuasively to this end. See Dietz, ___ _____
950 F.2d at 53 (emphasizing importance of "width, breadth, scope,
complexity, and duration of the scheme"). Since the criminal
activity must meet either the extensiveness or the numerosity
benchmark, not necessarily both, a founded finding of
extensiveness, in and of itself, is enough to engage the gears of
section 3B1.1(a) even if the commission of the crime depended
upon fewer than five participants. See id. ___ ___
In any event, the numerosity requirement is satisfied.
Although the district court did not name the other participants,
that omission is not fatal. It is not necessary that the
government prove the identities of the persons whom the organizer
organizes as long as the record permits the sentencing court to
make "a specific finding, based on a preponderance of the
evidence, which pinpoints [the participants] with enough
18
particularity to give credence to the upward adjustment."
McDowell, 918 F.2d at 1011. The court here made such a finding, ________
and it is well supported.
Taking its cue from the PSI Report, and relying heavily
on appellant's boasts to the undercover agent, the sentencing
court listed no fewer than ten persons who participated in the
scheme. Though the inclusion of some of these persons may be
problematic, a goodly number clearly qualify: appellant
himself;9 the individuals who recruited passport applicants;
the forger; the person who retrieved the bogus documents after
they had been used; and the two immigration inspectors in the
Dominican Republic, to name a few. Since the number of
criminally culpable participants is at least five, the district
court did not err in increasing appellant's offense level.
III. CONCLUSION III. CONCLUSION
We need go no further. For the reasons stated, the
defendant's conviction and sentence must be
Affirmed. Affirmed. ________
____________________
9The defendant himself can be counted as a participant for
purposes of the numerosity requirement. See Preakos, 907 F.2d at ___ _______
10.
19
APPENDIX APPENDIX
Approximate Approximate
Counts Date of Offense Identity of Counts Date of Offense Identity of ______ _______________ ___________
Alien Alien _____
1, 11 9/20/93 Marisol Martinez, a/k/a
Lorraine Mercedes
2, 12 9/20/93 Zoila Cruz, a/k/a Lisa
Soto
3, 13, 16 10/3/93 John Doe, a/k/a Edwin
Ramirez Barreto
4, 17 10/8/93 Jose Eduardo Espinal
5, 18 10/8/93 John Doe, a/k/a Leoncio
Collado
6, 19 10/16/93 John Doe, a/k/a Jose
Ramon Cruz, a/k/a
Jose Ramon Cruz Nunez
7, 14, 20 10/21/93 Jane Doe, a/k/a Elena
Guerrero
8 10/31/93 Fernando Antonio
Polanco, a/k/a Marco
Antonio Vasquez Ramos
9, 21 11/2/93 John Doe, a/k/a Jose
Rodriguez Lopez, a/k/a
20
Marcos Antonio Vasquez Ramos
10, 15, 22 11/6/93 John Doe, a/k/a Jose
Alberto Gonzalez,
a/k/a Jose Alberto
Morales
Note: counts 1-10 charge violations of 8 U.S.C. 1324(a)(1)(D);
counts 11-15 charge violations of 18 U.S.C. 1543; and counts
16-22 charge violations of 18 U.S.C. 201(b)(1)(C).
21
Document Info
Docket Number： 94-1780
Filed Date： 3/31/1995
Precedential Status： Precedential
Modified Date： 9/21/2015