United States v. Jonathan Alonso Vasquez , 486 F. App'x 830 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 11-13370
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D.C. Docket No. 0:11-cr-60056-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN ALONSO VASQUEZ,
Defendant - Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
___________________________
(August 14, 2012)
Before CARNES, BARKETT and HILL, Circuit Judges.
PER CURIAM:
Jonathan Vasquez appeals his 121-month prison sentence for his
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convictions of one count of conspiracy to import heroin and one count of
conspiracy to possess with intent to distribute heroin. He contends that the district
court miscalculated his guidelines range.
I.
Kevyn Castaneda asked Vasquez to help him smuggle heroin from
Colombia into the United States, and Vasquez agreed. Vasquez then wired his
own money to the heroin source, and he recruited David Sella and Cameron
Wornick to take a round-trip cruise with Castaneda to Colombia to pick up the
heroin and smuggle it into the United States. Castaneda, Sella, and Wornick took
the cruise, and Vasquez was supposed to pick them up after the cruise ship
returned to the United States. But when the ship arrived at a Florida port, law
enforcement officers arrested Vasquez’s co-conspirators and found the heroin.
Sella and Wornick agreed to cooperate with the arresting officers, and they told
the officers that they were supposed to call Vasquez once the ship arrived at port.
An officer then directed Sella to call Vasquez and get instructions about what to
do with the heroin. An unidentified co-conspirator, acting at Vasquez’s direction,
told Sella that he and Wornick should take a taxi to a nearby fast-food restaurant.
Officers escorted Sella and Wornick to that restaurant in an undercover taxi, and
once there, the officers arrested Vasquez.
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A federal grand jury indicted Vasquez on one count of conspiracy to import
heroin into the United States in violation of 21 U.S.C. § 952(a) and § 963, and one
count of conspiracy to possess heroin in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(i), and § 846.1 Vasquez pleaded guilty to both counts without a plea
agreement. The presentence investigation report recommended a base offense
level of 32 under United States Sentencing Guidelines § 2D1.1(c)(4) (Nov. 2010).
It added 3 levels under U.S.S.G. § 3B1.1(b) because Vasquez was a “manager or
supervisor” of the drug-smuggling conspiracy and the conspiracy involved more
than five participants (Vasquez, Castaneda, Sella, Wornick, and unindicted co-
conspirators). It then subtracted 3 levels under U.S.S.G. § 3E1.1 for acceptance of
responsibility, which resulted in a total offense level of 32. The PSR determined
that Vasquez had a criminal history category of I. The result was a recommended
guidelines range of 121 to 151 months in prison.
Vasquez objected to the manager-or-supervisor enhancement, contending
that the evidence did not support a finding that he was a manager or supervisor of
the conspiracy. The probation officer responded to Vasquez’s objection by
1
The grand jury also indicted Castaneda, Sella, and Wornick on the two conspiracy
counts and on another count that applied only to those three: possession of heroin with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(i). Castaneda, Sella, and Wornick
pleaded guilty to the conspiracy to possess count; the district court dismissed the other two
counts; and the court sentenced them to 135, 46, and 46 months in prison, respectively.
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contending that the enhancement was proper for two reasons: (1) Vasquez gave
“Sella and Wornick instructions once they arrive[d] at Port” that “direct[ed them]
as to what to do and where to go in order for him to obtain the heroin,” and (2)
Vasquez assisted “the ‘head guy’ by providing money for the purchase [of the
heroin].”
Vasquez responded that his instructions to Sella and Wornick once they
arrived at port were not evidence that he was a manager or supervisor of the
conspiracy, arguing that he provided those instructions only because Sella had
called him three hours late. According to Vasquez, “[h]e felt like something was
wrong and didn’t want to go to the port. So the original plan was he would pick
them up there once they called but they never called.”
The district court overruled Vasquez’s objection, “adopt[ing] the probation
officer’s response to the objection as the court’s finding as to [Vasquez’s] role in
the activity.” The court then sentenced Vasquez to 121 months in prison on each
count, with each sentence to run concurrently, followed by 5 years of supervised
release.
II.
Vasquez contends that the district court erred by finding that he was a
manager or supervisor of the drug-smuggling conspiracy for two reasons: (1) the
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court improperly based its finding that he was a manager or supervisor on
evidence that he gave instructions to Sella and Wornick after they began
cooperating with the government, and (2) the other evidence in the record does not
support the manager-or-supervisor enhancement. We review for clear error a
district court’s finding that a defendant was a manager or supervisor. See United
States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004). “A factual finding is clearly
erroneous when . . . the reviewing court . . . is left with the definite and firm
conviction that a mistake has been committed.” United States v. Gupta, 572 F.3d
878, 887 (11th Cir. 2009) (quotation marks omitted). But we review only for plain
error arguments that are raised for the first time on appeal in a criminal case. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
The guidelines provide for a 3-level increase in a defendant’s offense level
“[i]f the defendant was a manager or supervisor (but not an organizer or leader)
and the criminal activity involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(b).2 To qualify for the manager-or-supervisor
enhancement, “the defendant [must have] asserted control or influence over at
least one other participant in the crime.” United States v. Campa, 529 F.3d 980,
2
“If the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive,” the guidelines provide for a 4-level increase.
U.S.S.G. § 3B1.1(a).
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1013 (11th Cir. 2008) (quotation marks omitted); accord U.S.S.G. § 3B1.1 cmt.
n.2. (“To qualify for an [enhancement] under this section, the defendant must have
been the . . . manager[] or supervisor of one or more other participants.”). The
commentary defines “participant” as “a person who is criminally responsible for
the commission of the offense, but need not have been convicted. A person who is
not criminally responsible for the commission of the offense (e.g., an undercover
law enforcement officer) is not a participant.” U.S.S.G. § 3B1.1 cmt. n.1.
Vasquez argues that the district court erred because it based its finding that
he was a manager or supervisor on evidence that he gave instructions to Sella and
Wornick after they began cooperating with the government. As government
cooperators, Vasquez argues, Sella and Wornick were no longer “participants” in
the crime, so his instructions to them are not evidence that he “asserted control or
influence over at least one other participant in the crime.” Campa, 529 F.3d at
1013 (quotation marks omitted). Although Vasquez objected to the manager-or-
supervisor enhancement in the district court, he did not make the argument about
Sella and Wornick not being “participants” in the conspiracy when he gave them
instructions. For that reason, we review only for plain error whether the district
court erred in considering Vasquez’s conduct once Sella and Wornick began
cooperating with the government. See Rodriguez, 398 F.3d at 1298; United States
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v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (“The defendant . . . fails to
preserve a legal issue for appeal if the factual predicates of an objection are
included in the sentencing record, but were presented to the district court under a
different legal theory.”); United States v. Maurice, 69 F.3d 1553, 1557–58 (11th
Cir. 1995) (“The general rule that an appellate court will not hear arguments
advanced for the first time on appeal applies to sentencing proceedings. . . . [If] a
party is silent or fails to state the grounds for objections, the objections are
waived.” (citations, emphasis, and quotation marks omitted)); id. (“On this appeal
Maurice makes three arguments in support of his objection; . . . . [Maurice] waived
[two of] these arguments by not presenting them at the sentencing hearing and we
will only consider them under a plain error standard.”); cf. United States v.
Emmanuel, 565 F.3d 1324, 1333 (11th Cir. 2009) (“At trial, Emmanuel made a
hearsay objection to the evidence, but did not mention the Confrontation Clause.
A hearsay objection to testimony at trial, standing alone, does not preserve a
constitutional challenge under the Confrontation Clause for appeal.” (quotation
marks omitted)); United States v. Deverso, 518 F.3d 1250, 1255 (11th Cir. 2008)
(“This trial objection is different [from] the objections Deverso proffers on appeal.
Consequently, to obtain relief, Deverso must demonstrate plain error warranting
relief.”).
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Under plain error review, “an appellate court may not correct an error the
defendant failed to raise in the district court unless there is: (1) error, (2) that is
plain, and (3) that affects substantial rights.” Rodriguez, 398 F.3d at 1298. An
error affects substantial rights if it creates a “reasonable probability of a different
result” in the district court proceedings that is “sufficient to undermine confidence
in the [actual] outcome.” Id. at 1299 (quotation marks omitted). “In regard to this
third prong, it is the defendant rather than the government who bears the burden of
persuasion with respect to prejudice.” Id. (quotation marks omitted). If “we
would have to speculate” about “the effect of an error on the result in the district
court,” the defendant has not met his burden. Id. at 1301. “If all three conditions
are met, an appellate court may then exercise its discretion to notice a forfeited
error, but only if . . . the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1298 (quotations marks omitted).
The government concedes that the district court erred in considering
“Vasquez’s conduct once Sella and Wornick became cooperators,” Appellee Br.
14, and we will assume that concession is correct. We will also assume that the
court’s error was “plain,” which is the second requirement of the plain error test.
See Rodriguez, 398 F.3d at 1298. Those assumptions are not enough, however,
because Vasquez cannot meet the third requirement of the test, which is that he
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show that the district court’s alleged error prejudiced him—that it created a
reasonable probability of a different result. See id. at 1299. One reason that he
cannot show that is because the court also based the manager-or-supervisor
enhancement on the undisputed fact that Vasquez provided the money with which
the conspirators bought the heroin. We have held that “provid[ing] funding for [a]
criminal endeavor” supports a § 3B1.1 enhancement. United States v. Ramsdale,
61 F.3d 825, 830 (11th Cir. 1995); cf. United States v. Packer, 70 F.3d 357, 362
(5th Cir. 1995) (holding that “provid[ing] the necessary funding” for criminal
activity supports a § 3B1.1 enhancement).
Another reason Vasquez cannot show that the assumed error prejudiced him
is that other evidence supports the finding that he was a manager or supervisor of
the conspiracy. In the district court, Vasquez did not object to the PSR’s statement
that he “recruited Wornick and Sella” into the conspiracy. Although the district
court did not explicitly find that Vasquez recruited two of his co-conspirators, “[i]t
is the law of this circuit that a failure to object to allegations of fact in a [PSR]
admits those facts for sentencing purposes.” United States v. Wade, 458 F.3d
1273, 1277 (11th Cir. 2006). And we have held many times that a defendant’s
recruitment of co-conspirators supports a § 3B1.1 enhancement. See, e.g., United
States v. Thomas, 446 F.3d 1348, 1355 n.2 (11th Cir. 2006) (holding that the
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district court did not clearly err in finding that the defendant was an “organizer or
leader” under § 3B1.1(a) in part because he recruited co-conspirators); United
States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (holding that the district
court did not clearly err in finding that the defendant was an “organizer or leader”
under § 3B1.1(a) because the defendant “recruit[ed] and instruct[ed]
co-conspirators”); United States v. Njau, 386 F.3d 1039, 1041 (11th Cir. 2004)
(per curiam) (holding that the district court did not clearly err in finding that the
defendant was a “manager or supervisor” under § 3B1.1(b) in part because he
“recruited” accomplices); United States v. Perry, 340 F.3d 1216, 1217–18 (11th
Cir. 2003) (per curiam) (holding that the district court did not clearly err in finding
that the defendant was an “organizer, leader, manager, or supervisor” under §
3B1.1(c) in part because the defendant “actively recruited two individuals to
transport drugs”); cf. U.S.S.G. § 3B1.1 cmt. n.4 (“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 recruitment of accomplices . . . .”).
In light of Vasquez’s undisputed role in funding the conspiracy and
recruiting two of the co-conspirators, there is an abundant basis for the manager-
or-supervisor enhancement even without considering anything that he did after
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Sella and Wornick began cooperating with the government. As a result, we do not
know and cannot know that the district court would not have applied the
enhancement if it had not considered that later conduct. The most we can do is
speculate that but for the assumed error the court might not have applied the
enhancement, even though there are two other perfectly valid and sufficient bases
for doing so.
Speculation is not enough to satisfy the prejudice requirement for finding
plain error. Rodriguez, 398 F.3d at 1299–300; see also id. at 1301 (“[W]here the
effect of an error on the result in the district court is uncertain or indeterminate—
where we would have to speculate—the appellant has not met his burden of
showing a reasonable probability that the result would have been different but for
the error; he has not met his burden of showing prejudice; he has not met his
burden of showing that his substantial rights have been affected.”). We have held
that “if it is uncertain whether the error affected the result, if the effect is
indeterminate, if we simply cannot tell from the appellate record, then the
defendant loses.” Id. at 1306. At best for Vasquez, that is the situation here, but
that best is not good enough. See United States v. Pantle, 637 F.3d 1172, 1177
(11th Cir. 2011) (per curiam) (“A defendant’s burden under the plain error
standard to show prejudice is anything but easy—the burden truly is on the
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defendant to show that the error actually did make a difference.” (quotation marks
omitted)).
AFFIRMED.
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