United States v. Cuevas , 15 F. App'x 567 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 26 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5034
(D.C. No. 98-CR-172-003-K)
RUBEN CUEVAS, a/k/a Harley, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL, and BRISCOE, Circuit Judges.
Defendant-Appellant Ruben Cuevas appeals the district court’s decision to
impose a three-level enhancement for being a “manager” or “supervisor” pursuant
to United States Sentencing Guidelines § 3B1.1(b). We find that the district
court’s decision was not clearly erroneous, and thus we AFFIRM. Because we
affirm the enhancement under U.S.S.G. § 3B1.1, we need not reach the second
issue Cuevas presents for appeal. (See Aplt. Br. at 1, 5 (conceding Issue II (drug
quantity) as moot if this court affirms Issue I).)
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
BACKGROUND
Ruben Cuevas (a.k.a. “Harley”) pled guilty to participating in a drug
conspiracy to possess with intent to distribute marijuana in excess of 1,000
kilograms. On the basis of testimony from FBI Special Agent Keith Kohne, the
district court concluded that Cuevas exercised supervisory discretion within the
conspiracy and controlled at least one other participant. The district court’s
finding that Cuevas was a “manager” or “supervisor” for purposes of U.S.S.G.
§ 3B1.1 is factual and thus is reviewed for clear error. See United States v. Cruz
Camacho, 137 F.3d 1220, 1223-24 (10th Cir. 1998) (noting and resolving an
intra-circuit split on the question of whether a finding of “organizer” or “leader”
under § 3B1.1 is factual (and thus reviewed for clear error) or legal (and thus
reviewed de novo)); see also United States v. Spears, 197 F.3d 465, 468 (10th Cir.
1999) (following Cruz Camacho and reviewing for clear error); United States v.
Tagore, 158 F.3d 1124, 1130 (10th Cir. 1998) (same).
In approximately 1994, Jorge Hernandez-Mata and Manuel Pena Garcia
began a large-scale marijuana distribution network that moved thousands of
pounds of marijuana from Mexico through Texas and to the upper-Midwest, e.g.,
central Michigan, northern Indiana, and Illinois. The Mata-Garcia organization
involved about twelve people, including Cuevas. There were three stages to
moving the marijuana from producer to consumer: (1) transporting it from Mexico
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to Waller, Texas (near Houston); (2) packaging and transporting it from Texas to
the distribution states; and (3) distributing it and collecting the money from sales.
For stage two, couriers would either fly shipments from small airfields in Texas to
others in Michigan or drive the shipments north using tractor-trailer trucks.
Flights would carry two- to three-hundred pounds, while typical truck-loads
would move two-hundred fifty pounds (93.25 kilograms). At the time the
organization was in business, marijuana was selling in the upper-Midwest for
about $500 - $700 per pound. Thus, a shipment of two-hundred fifty pounds
could generate about $150,000 (250 x $600).
Cuevas began working for the Mata-Garcia organization in early to mid-
1997. But see Vol. III at 7-8 (stating that in January or February 1996 Severiano
Aguilar introduced Cuevas to pilot-courier Steven Moore as Moore’s “connection
or the person [Moore] will be contacted by for further trips”). The record reveals
that Cuevas had several responsibilities. First, when marijuana would arrive in
Texas from Mexico, either Cuevas or Hernandez-Mata would receive it. Either
one or both of them would then re-weigh and re-package it. They would wrap it
in plastic wrap, put it in suitcases, and place other things in the suitcases to try to
disguise the smell. Then either Cuevas or Hernandez-Mata would pay those who
helped package the marijuana for shipment. Marcos Perez was one of those
workers who did the packaging.
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Once the shipments were ready for transport, often Cuevas would call co-
conspirator Steven Moore, a pilot, and, using code words, communicate where
and when the shipment was to be picked up and where it was to be delivered.
Moore flew about fifteen trips from Texas to Lansing, Michigan, each time
carrying approximately two- to three-hundred pounds (74.6 to 111.9 kilograms) of
marijuana. Cuevas initiated every conversation with Moore; the only time Moore
called Cuevas was when Moore was responding to a page from him. During the
time the Government had a wiretap on Moore’s phone, the FBI overheard about
ten conversations between Cuevas and Moore and only one between Hernandez-
Mata and Moore. Except for Moore’s first flight, which occurred before Cuevas
had joined the organization, Cuevas paid Moore for his work.
Cuevas was also involved in the final leg of distribution: picking up the
shipments when they arrived in Michigan, distributing them to local dealers, and
collecting money earned on the sales. From Texas, Cuevas would fly commercial
airlines to Michigan. Pilots, like Moore, would contact Cuevas once they arrived
in Michigan. Cuevas would call co-conspirators to tell them when and where a
shipment would arrive and where to deliver it. Moore reported that Cuevas would
decide, in cooperation with salespersons in the area, where shipments would be
distributed. Cuevas would also collect and re-count the money earned from sales.
Normal collections ranged from thirty- to fifty-thousand dollars in cash. After
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being counted, the money would be boxed and sealed. It would then be shipped
back down to southern Texas by means of one of the organization’s couriers.
During 1997 to 1998, Marcos Perez worked for the Mata-Garcia
organization in and around Houston, Texas. Perez packaged and loaded the
marijuana for shipment north. According to Special Agent Kohne, Perez knew
and took instructions from Cuevas.
Co-conspirator Gilberto Quesada was involved in at least seven tractor-
trailer deliveries to Michigan, each load carrying about two-hundred fifty pounds
(93.25 kilograms). Quesada’s job was to collect proceeds from the sale of
marijuana in Lansing, Michigan. Cuevas was Quesada’s contact with the Mata-
Garcia organization. On many occasions when Quesada collected the revenue,
Cuevas accompanied him and was the one actually handling the money.
In June 1998, Missouri Highway Patrol discovered 561 pounds of marijuana
in a tractor-trailer truck being driven by Hector Melchor. Melchor admitted that
he had picked up the marijuana in Houston, Texas, and was to be paid $10,000
upon delivery to Chicago, Illinois. Three to four months later, Cuevas, Moore,
Mata, Garcia, and others had dinner at Jamil’s Restaurant in Tulsa, Oklahoma.
They discussed Melchor’s arrest and how to provide him with legal
representation.
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In the fall of 1998, police obtained a warrant to search the home of co-
conspirator Victor Carlos Riojas-Valadez. Police found Valadez hiding in the
basement with about fifty pounds of marijuana. Police stopped a car, driven by
co-conspirator William Mills, which was leaving Valadez’s house when the police
arrived to search. Cuevas was the passenger in Mills’s car. A search of the car
turned up about $66,000: $65,000 in a bag at Cuevas’s feet and over $1000 in
Cuevas’s pocket. To the police officers, Cuevas called this money “pocket
change.”
Special Agent Kohne related a statement from Brad Renville, a pilot-
courier, saying that Cuevas was the contact-person for couriers upon arriving in
Michigan. According to Kohne, an FBI wiretap confirmed that Cuevas gave
Renville “command and control communication” regarding drug deliveries.
Renville stated that, in his opinion, Cuevas was “a step above Steven Moore in
the chain of command.”
Special Agent Kohne recounted how everyone in the Mata-Garcia
conspiracy knew Cuevas, either by his name or by the nickname “Harley,” and
they recognized Cuevas’s picture on sight. In response to questioning from the
bench, Kohne opined that, in his experience, only persons who are “well-trusted,
well-thought of in the organization” collect and count the money from drug sales.
Finally, Kohne testified, over defense counsel’s objection, that, in his opinion,
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Cuevas “fit in right under Jorge Hernandez-Mata, inasmuch as he was the one that
would be there instead of Jorge Hernandez-Mata when he was not present.”
DISCUSSION
The burden rests on the Government to prove by a preponderance of the
evidence the facts necessary to establish defendant’s managerial role under
U.S.S.G. § 3B1.1. See United States v. Cruz Camacho, 137 F.3d 1220, 1224 (10th
Cir. 1998). We review for clear error the sentencing court’s finding that a
defendant was a “manager” or “supervisor” of criminal activity involving five or
more participants. See id. at 1223-24. It is undisputed that the criminal drug
conspiracy of which Cuevas was a part involved five or more participants.
Cuevas challenges the district court’s finding that he was a manager or
supervisor, contending instead that he played merely a clerical or administrative
role. A supervisor is “one who exercised some degree of control over others
involved in the commission of the offense or must have been responsible for
organizing others for the purpose of carrying out the crime.” United States v.
Allemand, 34 F.3d 923, 931 (10th Cir. 1994) (alterations omitted) (citing United
States v. Roberts, 14 F.3d 502, 524 (10th Cir. 1993) (stating that a manager or
supervisor must have “decision-making authority or control over a subordinate”);
United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990) (“Key determinants
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of the applicability of § 3B1.1 are control or organization . . . .”)). “[T]he
gravamen of [§3B1.1] is control, organization, and responsibility for the actions
of other individuals . . . .” United States v. Anderson, 189 F.3d 1201, 1211 (10th
Cir. 1999). To qualify as a manager or supervisor under § 3B1.1 a defendant
need manage or supervise only one participant. See Cruz Camacho, 137 F.3d at
1224.
The district court did not clearly err in rejecting Cuevas’s contention that
he played merely a clerical or administrative role and finding instead that he was
a manager or supervisor for purposes of § 3B1.1(b). The court found that, at the
least, Cuevas controlled Perez. Furthermore, the court found that there was also
evidence that Cuevas controlled Moore and Quesada, too, and that he certainly
exercised management responsibility over property assets and other activities of
the criminal organization.
There is ample support for these findings. When a marijuana shipment
would arrive from Mexico, Cuevas would often receive, weigh, and package it for
further transport north. Cuevas instructed and paid Perez for his work at this
stage. Cuevas would contact Moore, the principal pilot-courier, and tell him
when and where to pick up a shipment, and where to deliver it. Although there
were conflicting statements as to whether Cuevas ranked above Moore in the
organization, the district court could certainly have concluded that he did.
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Cuevas paid Moore and controlled virtually all the information flowing from the
organization to Moore. Finally, when the marijuana arrived in Michigan, Cuevas
directed co-conspirators, like Quesada, as to when and where to pick it up and
where and to whom to deliver it. In addition, Cuevas was responsible for
collecting and counting the sales proceeds.
Cuevas’s involvement mirrors the sort of control and authority we have
found to be sufficient in other cases. For example, in United States v. Green, 175
F.3d 822, 833 (10th Cir. 1999), we found that the district court did not err in
giving a § 3B1.1(b) “manager” enhancement based on evidence that the defendant
was the “gatekeeper to the money,” distributed the drug for further distribution,
and “inform[ed] others as to what steps they should take for transmission of the
money back to California [the organization’s headquarters].”
Therefore, we conclude that the district court did not clearly err when it
found Cuevas to be a “manager” or “supervisor” under U.S.S.G. § 3B1.1(b).
Consequently, we AFFIRM.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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