United States v. Vega ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 5 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-3381
v. D.C. No. 01-CR-40024-01-SAC
(D. Kansas)
MARCO ANTONIO VEGA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and O’BRIEN, Circuit Judges.
Defendant Marco Antonio Vega pled guilty to conspiracy to possess with
intent to distribute 500 grams or more of a mixture containing a detectable
amount of methamphetamine in violation of 21 U.S.C. § 846 and was sentenced to
151 months of imprisonment. (ROA at 212-13.) Vega now challenges the
calculation of the amount of methamphetamine used to determine his relevant
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
conduct and base offense level, as well as the two-level enhancement he received
as an organizer, leader, manager or supervisor of the conspiracy pursuant to U.S.
Sentencing Guidelines Manual § 3B1.1(c) (2001). We exercise jurisdiction
pursuant to 18 U.S.C. § 3742 and AFFIRM the judgment of the district court.
Relevant Conduct
The district court calculated the total amount of methamphetamine
attributable to Vega to be 2,112.3 grams, establishing a base offense level of 34.
U.S. Sentencing Guidelines Manual § 2D1.1(c)(3). It reached this total by adding
the following drug quantities:
• Six quarter-pound sales and one half-pound sale by Vega to Roger
Zimmerman between December 2000 and March 14, 2001 (907.2
grams)
• 141.2 grams delivered to Zimmerman by Vega on March 22, 2001
• 446.6 grams delivered to Zimmerman by Vega on March 27, 2001
• 617.3 grams seized from the car of Vega’s co-defendant, Jose Parga,
on March 28, 2001.
(ROA at 206.)
Vega challenges several aspects of this calculation. We review the district
court’s factual findings for clear error, bearing in mind that the government bears
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the burden of proving the quantity of drugs by a preponderance of the evidence.
United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993). We review the
application of the Guidelines to the facts de novo. Id.Vega first challenges the court’s reliance on the testimony of Roger
Zimmerman that Vega sold him six quarter-pounds and one-half pound of
methamphetamine between December 2000 and March 14, 2001. “Where there is
no drug seizure or the amount seized does not reflect the scale of the offense, the
court shall approximate the quantity of the controlled substance,” U.S. Sentencing
Guidelines Manual § 2D1.1 n.12 (2001), based on information that has support in
the facts of the case and sufficient indicia of reliability. United States v. Ruiz-
Castro, 92 F.3d 1519, 1534 (10th Cir. 1996).
In this case, the district court found that sufficient indicia of reliability
surrounded Zimmerman’s testimony that Vega had sold him these quantities of
methamphetamine. (ROA at 205.) Zimmerman’s statements regarding these sales
remained consistent from the time of his initial arrest to the sentencing hearing,
(ROA at 107, 116, 122), and his testimony was consistent with Vega’s willingness
to front Zimmerman large amounts of drugs shortly after March 14, 2001. (ROA
at 107-09.) Zimmerman was also arrested with over a quarter-pound of
methamphetamine in his possession. Finally, the district court included only the
lowest number of transactions estimated by Zimmerman in the calculation of the
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total amount. Thus, the district court’s inclusion of these amounts was not clearly
erroneous. See United States v. Browning, 61 F.3d 752, 754-55 (10th Cir. 1995)
(affirming the district court’s calculation of drug quantity where the witnesses’
testimony on the amount was consistent from the pre-sentence investigation to the
sentencing hearing and the district court adopted the more conservative estimate
of the quantity).
Second, Vega contends that the district court double-counted certain
amounts of methamphetamine by including quantities found in Zimmerman’s
possession when he was arrested and quantities that Zimmerman testified Vega
had sold him prior to Zimmerman’s arrest. This argument fails because the
amounts found in Zimmerman’s possession were not included in the total amount.
(ROA at 206.)
Third, Vega contends that the 617.3 grams of methamphetamine seized
from the car trunk of his co-defendant Jose Parga should not be included because
there was no proven relationship between Parga and Vega. Under the Sentencing
Guidelines, Vega is “accountable for all quantities of contraband with which he
was directly involved and . . . all reasonably foreseeable quantities of contraband
that were within the scope of the criminal activity that he jointly undertook.”
U.S. Sentencing Guidelines Manual § 1B1.3 n.2 (2001). The district court found
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that the methamphetamine in Parga’s car was attributable to Vega because it was
reasonably foreseeable in connection with this criminal activity. (ROA at 207.)
The inclusion of this 617.3 grams is not clearly erroneous. At his arrest
and during an April 5, 2001 interview, Parga informed the police that he was
holding the 617.3 grams found in his trunk for Vega. (ROA at 81, 84, 205.) This
statement was corroborated by the fact that, after negotiating the sale of one
pound of methamphetamine with Zimmerman on March 27, 2001, Vega traveled
to Parga’s apartment and then returned to Zimmerman’s with the drugs. (ROA at
81, 84, 89-90.) Thus, the factual record supports a finding that the 617.3 grams
of methamphetamine in Parga’s trunk belonged to defendant Vega.
Because the district court’s findings regarding the relevant conduct are not
clearly erroneous, we affirm the calculation of Vega’s relevant conduct and base
offense level.
Aggravating Role
Vega also appeals from the district court’s imposition of a two-level
sentence enhancement for his role as an “organizer, leader, manager or
supervisor” of his co-defendants Parga and Ramon Villares-Palacios in the
criminal activity. U.S. Sentencing Guidelines Manual § 3B1.1(c) (2001). Factors
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to consider when evaluating whether a defendant should receive this enhancement
include
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 exercised over others.
Id. at n.4.
In determining that Vega should receive this enhancement, the district court
made specific factual findings that Vega negotiated the transactions with
Zimmerman, instructed Villares-Palacios to assist him in the transactions, had
Villares-Palacios accompany him on numerous transactions, exercised the
authority to advance drugs to Zimmerman, and used Parga to store and distribute
drugs to him. (ROA at 210.) These findings are supported in the record and
suffice to show that Vega was an organizer, leader, manager or supervisor of the
operation.
For the foregoing reasons, we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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