United States v. Rosales , 112 F. App'x 685 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-5002
NOE ROSALES, (D.C. No. 01-CR-4-C)
(N.D. Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.
Defendant Noe Rosales pled guilty to possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and was sentenced
to 168 months’ imprisonment. In his initial direct appeal, this court remanded to the
district court for specific factual findings to support its conclusion that Rosales was an
organizer or leader under U.S.S.G. § 3B1.1. On remand, the district court set out its
findings and made no change to Rosales’ sentence. Rosales now challenges the court’s
determination that he was an organizer or leader for purposes of U.S.S.G. § 3B1.1(c). He
*
This order and judgment is not binding precedent, except under the doctrines of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.
also contends the government breached the terms of the plea agreement. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
I.
In Rosales’ initial direct appeal, we summarized the relevant background facts of
his case:
Noe Rosales was part of a drug conspiracy operating in California,
Utah, and Oklahoma which involved more than five individuals. The
conspiracy operated from at least March 1996 to February 2001, although
Rosales only pleaded guilty to participating in the conspiracy from
December 2000 onward. Evidence in the record indicates that Rosales was
second-in-command of the drug conspiracy, under his father’s leadership.
Although in at least one instance Rosales had to seek his father’s final
authorization for pricing, Rosales generally set prices for the drugs, directed
subordinates, and negotiated with customers.
In February 2001, Rosales personally authorized the sale of two
pounds of methamphetamine in a recorded telephone conversation with a
[confidential informant]. Prior to that, Rosales had negotiated with a Drug
Enforcement Agency (“DEA”) undercover agent and with the [confidential
informant] for the sale of an additional 965.5 grams of methamphetamine.
Rosales was indicted along with his co-conspirators for the unlawful
distribution of methamphetamine and cocaine. Rosales entered into a plea
agreement with the government in which the government stipulated that
Rosales was a minor participant in the conspiracy. The plea agreement
makes it clear, however, that the stipulation is not binding upon the
sentencing court. Rosales pleaded guilty to one count of “Possession of a
Controlled Dangerous Substance with Intent to Distribute” in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C).
United States v. Rosales, 80 Fed. Appx. 57, 59 (10th Cir. 2003) (Rosales I). At
sentencing, the district court determined Rosales was not a minor participant for purposes
of U.S.S.G. § 3B1.2, and denied his request for a downward adjustment. Instead, the
district court determined Rosales was an organizer or leader for purposes of § 3B1.1 and
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increased his offense level by two points. The district court sentenced Rosales to 168
months’ imprisonment, the lowest possible sentence under the applicable guideline range.
In his initial direct appeal, Rosales raised several sentencing issues, including two
challenges to the district court’s determinations regarding his role in the offense. Rosales
asserted the district court erred in concluding he was not a minor participant under
§ 3B1.2. We disagreed, concluding a minor participant reduction was not warranted
because Rosales “received a lower offense level by virtue of being convicted of an
offense significantly less serious than warranted by his actual criminal conduct.” Rosales
I, 80 Fed. Appx. at 61. More specifically, we noted that “Rosales’ plea agreement
eliminated a 20-year minimum sentence and reduced his maximum sentence from life to
20 years.” Id. Rosales also argued the district court erred in finding he was an organizer
or leader under § 3B1.1(c), and in imposing a two-level upward adjustment. Because the
district court failed to make specific findings on the record describing its basis for
imposing the § 3B1.1(c) adjustment, we remanded for that purpose.
On remand, the district court issued written findings of fact, stating in pertinent
part:
The Court finds that the following facts, which were contained in the PSR
and not disputed by any party, were proven and support its conclusion that
Defendant exercised decision-making authority within the organization,
acted as a manager and supervisor in the commission of the offense, had a
high degree of participation in planning and organizing the offense and
exercised a high degree of control and authority over others involved in the
conspiracy:
1. In December 2000, Jorge Sanchez accompanied Defendant
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to Tulsa to collect drug debts. They stayed at a hotel near Fourth
Street and Lewis Avenue and collected $10,000 in approximately
twenty days. They returned to Salt Lake City and on December 23,
2000, Defendant was arrested there on state drug charges.
2. In January 2001, Marcos Rosales [defendant’s father]
asked Jorge Sanchez to make another trip to Tulsa. Sanchez
complained that he was not paid enough and Rosales agreed to pay
Sanchez $500 per pound of delivered methamphetamine. On
January 11, 2001, Sanchez went to Rosales’ Utah residence where
Marcos Rosales used a neoprene band to secure methamphetamine
packets to Sanchez’s mid-section. Defendant and Aurora Rosales
[defendant’s mother] were in the room when Sanchez was fitted with
the neoprene band. Defendant accompanied Sanchez in a cab to the
Salt Lake City airport. He gave Sanchez a telephone number for his
Tulsa contact, Filberto Rosales. Defendant instructed Sanchez to get
between $10,900 and $11,000 for the pound of methamphetamine.
3. Confidential sources informed federal investigators of the
trip before Sanchez left Salt Lake City. Tulsa Police and Drug
Enforcement Administration (“DEA”) Agents set up surveillance at
the Tulsa airport to await his arrival on the afternoon of January 11,
2001. These surveillance agents followed Sanchez to 1114 North
Hilton Road in Sapulpa. Investigators had set up DEA Agent Eric
Katz as a methamphetamine buyer in Tulsa. In preparation for a
controlled buy, they arranged [for] two rooms at the La Quinta Inn,
10829 East 41st Street, to be set up with video and audio
surveillance equipment. The room to be used for the “buy” had
cameras and microphones installed inconspicuously and the second
room held the agents who operated the recording equipment. In the
early evening, Sanchez arrived at the hotel room and met with Agent
Katz. He offered a pound of methamphetamine for sale but when
weighed, the amount was somewhat less than a pound. Through an
interpreter, Sanchez told Agent Katz the price was $10,900 but
Agent Katz haggled over the price. During negotiations, Sanchez
called Defendant to authorize a lower price. Agent Katz and
Defendant negotiated on the telephone and finally agreed on $9,500
for the methamphetamine, which had a net weight of 423.8 grams.
During the recorded conversation Defendant and Agent Katz
negotiated the delivery of additional quantities of methamphetamine
and crystal methamphetamine or “ice” from Utah to Tulsa,
Oklahoma. Sanchez returned to Salt Lake City that night and gave
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the money to Defendant. Sanchez was paid $500, which he wired to
his family in Mexico.
4. On January 18, 2001, Agent Katz met with Pedro Arias-
Garcia in Room No. 110 of the Howard Johnson Motel located at
4724 South Yale, Tulsa, Oklahoma. Arias produced three duct taped
packages that had been driven from Utah to Tulsa, Oklahoma by
Arias. The packages contained a pound of methamphetamine and a
quarter-pound of crystal methamphetamine. When asked why he did
not use commercial aircraft to travel to Tulsa, Arias stated that he
had transported crystal methamphetamine and that if he had been
caught with “crystal” he would have had “big fucking problems.”
Agent Katz told Arias that he had been given a price for the crystal
methamphetamine from Defendant. Agent Katz advised Arias that
the negotiated price for the crystal methamphetamine was $1,500 an
ounce and the methamphetamine was $9,500 per pound. Arias made
two telephone calls in an attempt to locate Marcos Rosales to verify
the prices. A confidential source (“CS”) present in the room was
able to reach Defendant who stated that the pound of
methamphetamine cost $10,500, but they would accept $9,500.
Agent Katz handed Arias $5,000 and stated he would have the
balance of $4,500 shortly. The crystal methamphetamine was
advanced to Agent Katz in order to find a buyer. Arias stated that he
would be leaving for Utah that evening and told Agent Katz to pay
the balance to Sanchez, who would be arriving on February 1, 2001,
with a quantity of cocaine. The d-Methamphetamine and
Amphetamine had a net weight of 541.7 grams.
5. On February 6, 2001, Defendant, in a recorded telephone
conversation, authorized the CS to sell two-pounds (907.2 grams) of
methamphetamine for $8,500 per pound and advised the CS that he
could keep $500 per pound as payment. The CS relayed to
Defendant his pager number and Defendant told the CS that the code
number for the transaction would be all sevens.
6. On February 6, 2001, the CS drove to Nanez’s residence at
2206 South 133rd East Avenue, Tulsa, Oklahoma to deliver one
pound of the two-pounds of methamphetamine Defendant authorized
him to sell. The CS went into Nanez’s garage as directed by Nanez.
Once inside, Nanez advised he only wanted to purchase one ounce of
methamphetamine. The CS replied he believed Nanez had requested
one pound, not one ounce, of the drugs. Nanez explained that he
never heard from his customer. After further negotiation, Nanez
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agreed to purchase the entire amount of drugs, 597 gross grams, the
CS had with him. Nanez agreed to pay half of the purchase price in
addition to some cowboy boots up front and pay the remainder at a
later date. Nanez placed the entire amount of drugs in a box. Then,
he directed the CS to leave the residence because Nanez was
expecting a customer to arrive at the house. Nanez directed the CS
to wait at a local restaurant until Nanez telephoned him. That
afternoon, Tulsa Police officers executed a search warrant at Jesus
Nanez’s residence. Officers recovered approximately 597 gross
grams of methamphetamine from inside a cardboard box in the
garage. Nanez was placed under arrest. During initial interviews
with the officers, Nanez denied any knowledge of the
methamphetamine found in his garage. A laboratory analysis was
performed on the methamphetamine recovered during the search. It
was determined that on February 6, 2001, Nanez possessed 539.3 net
grams of methamphetamine.
7. On February 8, 2001, agents with the Salt Lake City, Utah,
Drug Enforcement Administration conducted an undercover meeting
with Defendant and Michael Jerome Donald, a.k.a. “Emmitt.” The
agents rented a room #355 at a Salt Lake City Holiday Inn hotel. At
approximately 9:00 a.m., Agent Katz contacted Defendant by
telephone and informed him that he was in room #355 of the hotel
with a $3,000 payment for Defendant. The money was partial
payment for approximately one-quarter pound of crystal
methamphetamine delivered to the agent by Pedro Arias on January
18, 2001. Defendant advised that he was not in the area of the hotel
and would send someone else to retrieve the payment.
8. Defendant arrived at the hotel room at approximately 9:15
p.m. and left twenty minutes later. At about midnight, Michael
Jerome Donald arrived at the hotel room. He was allowed in by the
undercover agents who handed him the $3,000. Donald counted the
money and divided it into $500 stacks. One of the agents placed a
telephone call to Defendant and handed the phone to Donald.
Donald informed Defendant that the money was “straight.” After the
brief telephone conversation, Donald placed the money in his pocket
and left the hotel room.
ROA I, Doc. 379 at 2-4. The district court made no change to Rosales’ sentence.
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II.
Application of U.S.S.G. § 3B1.1(c)
Rosales contends the district court erred in determining he was an organizer or
leader for purposes of § 3B1.1(c). We review that determination for clear error. See
United States v. Cruz Camacho, 137 F.3d 1220, 1223-24 (10th Cir. 1998) (“we believe
the role of a defendant as a leader or organizer is among the sophisticated factual
determinations a district court makes which depend upon an assessment of the broad
context of the crime”) (internal quotations omitted).
Section 3B1.1 of the Sentencing Guidelines provides varying “aggravating role”
adjustments to a defendant’s base offense level. In particular, subsection (c) requires that
a defendant’s offense level be increased “by 2 levels” if he “was an organizer, leader,
manager, or supervisor in any criminal activity other than described in [subsections] (a) or
(b).”
To qualify for an adjustment under this section, the defendant must
have been the organizer, leader, manager, or supervisor of one or more
other participants. An upward departure may be warranted, however, in the
case of a defendant who did not organize, lead, manage, or supervise
another participant, but who nevertheless exercised management
responsibility over the property, assets, or activities of a criminal
organization.
U.S.S.G. § 3B1.1, cmt. n.2.
In distinguishing a leadership and organizational role from one of
mere management or supervision, titles such as “kingpin” or “boss” are not
controlling. Factors the court should consider include the exercise of
decision making authority, the nature of participation in the commission of
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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 and
organizing the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others. There can, of course,
be more than one person who qualifies as a leader or organizer of a criminal
association or conspiracy.
Id., cmt. n.4.
In relatively small criminal enterprises that are not otherwise to be
considered as extensive in scope or in planning or preparation, the
distinction between organization and leadership, and that of management or
supervision, is of less significance than in larger enterprises that tend to
have clearly delineated divisions of responsibility. This is reflected in the
inclusiveness of § 3B1.1(c).
Id., cmt. background.
Significantly, Rosales does not dispute the validity of any of the underlying factual
findings set forth in the district court’s written order on remand. Instead, Rosales
challenges whether those findings support a determination that he was a leader or
organizer for purposes of § 3B1.1(c). In particular, Rosales contends that none of the
facts found and cited by the district court demonstrate that he “exercised command and
control over others.” Aplt. Reply Br. at 2. According to Rosales, the district court’s
factual findings demonstrate only that he “passed along orders to others from his father,”
and otherwise gave no orders himself. Aplt. Br. at 9. Further, Rosales asserts the district
court’s factual findings do not indicate that he independently established any drug prices.1
1
At the original sentencing hearing, Rosales argued he did not qualify as an
organizer or leader because (a) he did not have decision-making authority “with regard to
setting the price of methamphetamine,” ROA III at 10, (b) he “did not recruit any
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The flaw in Rosales’ arguments is that they focus exclusively on the “leader” role
under § 3B1.1(c). As noted, however, a § 3B1.1(c) adjustment can be based on a
defendant playing any one of four roles in the offense: “organizer, leader, manager, or
supervisor.” U.S.S.G. § 3B1.1(c); see United States v. Valdez-Arieta, 127 F.3d 1267,
1270-71 (10th Cir. 1997) (discussing distinction between “leading” and “organizing,” and
noting defendant can be subjected to adjustment under § 3B1.1 for performing either
function in the commission of an offense). Thus, even if Rosales did not play a
leadership role in the offense of conviction, he can still be subjected to an adjustment
under § 3B1.1(c) if he played one of the other roles.
Having carefully examined the record on appeal, we conclude the district court’s
ultimate determination under § 3B1.1(c) was not clearly erroneous. The court’s
subsidiary factual findings clearly indicate that Rosales played an organizational role in
the offense by coordinating and overseeing methamphetamine transactions. See Valdez-
Arieta, 127 F.3d at 1272 (“a defendant may be punished as an organizer under § 3B1.1(c)
for . . . coordinating and overseeing the implementation of the conspiracy even though the
defendant may not have any hierarchical control over the other participants”). For
example, as outlined in paragraph 2 of the district court’s subsidiary factual findings, it
was uncontroverted that Rosales helped make arrangements for another person, Jorge
accomplices,” id., and (c) did not claim “a greater share of money or drugs because of an
elevated position,” id. at 11.
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Sanchez, to transport methamphetamine from Salt Lake City to Tulsa to complete a sales
transaction. More specifically, Rosales accompanied Sanchez in a cab to the Salt Lake
City airport, gave him “a telephone number for his Tulsa contact,” and instructed him as
to the amount “to get” for the methamphetamine. ROA I, Doc. 379 at 2. Likewise, as
outlined in paragraphs 3, 7, and 8 of the findings, it was uncontroverted that Rosales
arranged for delivery of methamphetamine to a buyer, and subsequently arranged for
collection of proceeds from the buyer (in each instance someone other than Rosales
actually performed the task). In addition to acting as an organizer, it is apparent that
Rosales also played a supervisory role. In particular, it is uncontroverted that Rosales
oversaw the activities of couriers who delivered methamphetamine from Salt Lake City to
Tulsa and, in turn, oversaw the collection of proceeds from buyers. In addition, it was
uncontroverted that Rosales oversaw negotiations between couriers and buyers, assisting
in determining prices for the methamphetamine.
Thus, even though Rosales’ father may have been the true “leader” in the drug
organization, we agree with the district court that Rosales acted as an organizer or leader
in the offense, and therefore was properly subjected to a 2-level increase pursuant to
§ 3B1.1(c).
Breach of plea agreement
Rosales contends the government breached the terms of the plea agreement by
arguing before this court in Rosales I that the district court acted properly in applying a 2-
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level adjustment under § 3B1.1(c) due to Rosales’ role as an organizer or leader.
Although the plea agreement makes no mention of § 3B1.1(c), Rosales argues that, in
light of the government’s stipulation that he was entitled to a minor participant
adjustment under § 3B1.2(b), it was reasonable to expect the government “to refrain from
arguing the exact opposite,” i.e., “that he deserved a two-level upward adjustment under
. . . § 3B1.1 .” Aplt. Br. at 13.
We conclude it is unnecessary to address this issue. Under the express terms of the
plea agreement, the only remedy available to Rosales is withdrawal of his guilty plea. See
ROA I, Doc. 200 at 9 (“In the event either party believes the other has failed to fulfill any
obligations under this agreement, then the complaining party shall, in its discretion, have
the option of petitioning the Court to be relieved of its obligations herein.”); see also
United States v. Berger, 251 F.3d 894, 909-10 (10th Cir. 2001) (indicating, in case
involving identical plea agreement language, that “the appropriate remedy” was to give
defendant “an opportunity to withdraw from the agreement”). However, it is clear from
Rosales’ appellate pleadings, as well as his counsel’s statements at oral argument, that he
does not seek that remedy (a review of the record demonstrates why – he was allowed to
plead guilty to a substantially lesser offense than the one originally charged). Absent a
request by Rosales to withdraw his guilty plea, it would be a pointless exercise for us to
determine whether the government’s actions violated the terms of the plea agreement.
Supplemental authority - Blakely v. Washington
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Approximately two weeks before oral argument, Rosales submitted a letter to the
court pursuant to Federal Rule of Appellate Procedure 28(j) citing the Supreme Court’s
recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Assuming Rosales’
letter is intended to raise a new issue, i.e., that he had a Sixth Amendment right to a jury
trial on his federal sentencing enhancements, we reject the issue. See United States v.
Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003) (refusing to address issue asserted for
first time in supplemental authority letter filed pursuant to Rule 28(j)); see also United
States v. Levy, 379 F.3d 1241, 1242-44 (11th Cir. 2004) (refusing to entertain Blakely-
based argument raised for first time in appellant’s petition for rehearing); id. at 1244(concluding language of Rule 28(j) “underscores that an appellant’s supplemental
authority must relate to an issue previously raised in a proper fashion, and that an
appellant cannot raise a wholly new issue in a supplemental authority letter or brief”).
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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