United States v. Nolberto Martinez , 631 F. App'x 668 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11380
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00014-WLS-TQL-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY CHARLES TAYLOR,
a.k.a. Big Fifty,
Defendant,
NOLBERTO MARTINEZ,
a.k.a. Negro,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Georgia
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(November 5, 2015)
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Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Nolberto Martinez, Bobby Taylor and Victor Salinas were indicted, in Count
One, for conspiring among themselves and several others to possess with intent to
distribute cocaine and crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1).
The indictment also charged Martinez, in Count Three, with distribution of
cocaine, in violation of 21 U.S.C. § 841(a). Martinez and Taylor stood trial and
based in large part on the testimony of their coconspirators, were found guilty as
charged.
In this appeal, Martinez argues that the evidence was insufficient to convict
him of the Count One conspiracy charge and that the District Court erred in
sentencing him to prison for a total of 360 months (360 months on Count One and
a concurrent term of 240 months on Count Three). We consider first his challenge
to Count One.
I.
We review de novo whether the evidence was sufficient to convict Martinez
on Count One, taking the evidence in the light most favorable to the jury’s verdict.
United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence is
sufficient if a reasonable trier of fact could have found that it established guilt
beyond a reasonable doubt. Id. at 1284-85.
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To convict a defendant for violating 21 U.S.C. § 846, the government must
prove beyond a reasonable doubt that: (1) a conspiracy existed; (2) the defendant
knew of the essential objectives of the conspiracy; and (3) the defendant
knowingly and voluntarily participated in the conspiracy. United States v.
Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997). The government can show the
existence of such an agreement via circumstantial evidence, which would include
drawing inferences based on the conduct of those allegedly involved in the scheme.
United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005).
While the existence of a simple buyer-seller relationship alone is insufficient
to prove a conspiratorial agreement, an agreement to enter into a conspiracy may
be inferred when the evidence shows a continuing relationship that results in the
repeated transfer of illegal drugs to a purchaser. United States v. Johnson, 889
F.2d 1032, 1035-36. “Where the buyer's purpose is merely to buy, and the seller's
purpose is merely to sell, and no prior or contemporaneous understanding exists
between the two beyond the sales agreement, no conspiracy has been shown.”
United States v. Beasley, 2 F.3d 1551, 1560 (11th Cir. 1993) (quotation omitted).
In Beasley, we held that there was sufficient evidence to establish the existence of
a conspiracy where the defendant had purchased drugs multiple times from another
party, the drugs had been fronted without payment, the initial seller knew where
the defendant was selling the drugs he had purchased, and they worked together to
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arrange a sale to another party. Id. This evidence demonstrated that the
relationship between the supplier and the defendant was “far more than merely a
buyer-seller relationship.” Id.That is what the evidence established in this case. Martinez of course
disagrees, contending that, at best, all the evidence showed was a buyer-seller
relationship involving himself, Winbush and Johnson and that Barge was
sometimes present associating with them. Had a conspiracy existed, he continues,
there would have been evidence that he and his alleged coconspirators shared the
proceeds of the drug sales; that they made cocaine sales on credit; that he gave
advice to the others about the cocaine sales; that the cocaine purchases were
coordinated; and that they solicited customers for each other.
Martinez seems to discount the fact that he did sell cocaine. His problem is
that the testimony of the prosecution witnesses showed a continuing agreement to
sell drugs, an agreement that was executed time and time again. Moreover, a
reasonable jury could have found that he was a member of the Gulf Cartel and
based on the testimony of Agent Jordan, Mark Simpson and Stuart Cole, that he
was transporting drugs into the United States. In sum, the evidence fully supported
the jury’s verdict on Count One.
II.
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Martinez contends that in determining his sentence range under the
Guidelines, the District Court erred when it enhanced his base offense level by four
levels pursuant to U.S.S.G. § 3B1.1(a) for being a leader or organizer of criminal
activity involving five or more persons. We review the court’s determination of
Martinez’s role in the offense for clear error. United States v. Rodriguez De
Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). Under clear error review,
when two permissible views of the evidence exist, the factfinder’s choice between
them will not be clearly erroneous. Id. at 945.
The Guidelines provide that a four-level enhancement may be applied if “the
defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The
commentary provides that the district court should consider the following factors:
(1) exercise of decision-making authority, (2) nature of participation in the offense,
(3) recruitment of accomplices, (4) claimed right to a larger share of the fruits of
the crime, (5) degree of participation in planning or organizing the offense, (6)
nature and scope of the illegal activity, and (7) degree of control and authority
exercised over others. U.S.S.G. § 3B1.1, comment. (n.4). There is no requirement
that all the considerations have to be present in any one case. United States v.
Ramirez, 426 F.3d 1344, 1356 (11th Cir. 2005).
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Section 3B1.1 requires that the defendant exercise some degree of control,
influence, or leadership over another participant. United States v. Martinez, 584
F.3d 1022, 1026 (11th Cir. 2009). However, the assertion of control or influence
over only one individual is enough to support a § 3B1.1 enhancement. United
States v. Lozano, 490 F.3d 1317, 1323 (11th Cir. 2007).
We find no clear error in the District Court’s application of § 3B1.1(a).
The evidence presented showed that Martinez exercised some degree of control,
influence, or leadership, as § 3B1.1(a) requires.
AFFIRMED.
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