United States v. Gilberto Parada-Talamantes , 554 F. App'x 859 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14280
Non-Argument Calendar
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D.C. Docket No. 3:12-cr-00017-LC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO PARADA-TALAMANTES,
a.k.a. Peso,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(February 7, 2014)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
After pleading guilty, Gilberto Parada-Talamantes appeals his 165-month
sentence for conspiring to distribute and possess with intent to distribute
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five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) &
(b)(1)(A)(ii) and 846, and possessing with intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(ii) and 18 U.S.C. § 2.
On appeal, Parada-Talamantes argues that the district court erred by imposing a
three-level enhancement for being a manager or supervisor of more than five
participants, pursuant to U.S.S.G. § 3B1.1(b). After review, we affirm.
I. DISCUSSION
A. Section 3B1.1(b) Role Enhancement
Under § 3B1.1(b), the three-level managerial role enhancement applies if (1)
the defendant was a manager or supervisor, but not an organizer or leader; and (2)
the criminal activity involved five or more participants or was otherwise extensive.
U.S.S.G. § 3B1.1(b). To qualify for the enhancement, the defendant need only
manage or supervise one other participant in the criminal activity. Id. ' 3B1.1,
cmt. n.2.
At sentencing, Parada-Talamantes objected to the application of § 3B1.1(a)’s
four-level leadership-role enhancement, arguing that he was not a leader or
organizer. The district court sustained that objection and instead applied the three-
level enhancement in § 3B1.1(b) because Parada-Talamantes was a supervisor or
manager. Parada-Talamantes never objected to the three-level enhancement.
Thus, our review of the issue on appeal is for plain error. See United States v.
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McNair, 605 F.3d 1152, 1222 (11th Cir. 2010); Fed. R. Crim. P. 52(b). Here, as
explained below, Parada-Talamantes has not shown error, much less plain error, in
applying the three-level enhancement.
B. Defendant Parada-Talamantes’s Arguments
First, there is no merit to Parada-Talamantes’s contention that the district
court did not make adequate findings of fact to support the enhancement. The
district court explicitly found that Parada-Talamanets “was the manager . . . that
handled all of the arrangements.” The district court had no duty to make further
specific subsidiary factual findings so long as the ultimate conclusion as to the
defendant’s role is supported by the record. See United States v. De Varon, 175
F.3d 930, 939-40 (11th Cir. 1999) (involving a minor-role reduction under
U.S.S.G. § 3B1.2).
Second, the district court’s decision to impose the three-level enhancement
was supported by the record. Specifically, undisputed facts in the presentence
investigation report (“PSI”) established that Defendant Parada-Talamantes and his
codefendant, Luis Alonso Delarca-Munguia, were sources of cocaine for a family-
run drug trafficking organization involving Gabino Ortiz, Sr. and his two sons. In
post-arrest statements, all three Ortiz men said that Defendant Parada-Talamantes
and Delarca-Munguia were a source of supply for them and that the defendants
made multiple deliveries of cocaine and/or marijuana. In his post-arrest statement,
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Delarca-Munguia said, among other things, that Defendant Parada-Talamantes
recruited him to help deliver cocaine to the Ortizes and, when Ortiz refused a
cocaine delivery for poor quality, Defendant Parada-Talamantes directed him to
find another buyer, which he did. See United States v. Wade, 458 F.3d 1273, 1277
(11th Cir. 2006) (explaining that a defendant’s failure to object to a factual
allegation in the PSI constitutes an admission for sentencing purposes).
In addition to these undisputed PSI facts, sentencing testimony showed that
Defendant Parada-Talamantes supplied cocaine to the Ortiz family’s drug
trafficking organization, which then gave distribution-level quantities to multiple
individuals. Defendant Parada-Talamantes contacted Ortiz, Sr. to arrange cocaine
deliveries and met with Ortiz, Sr. to accept payment for the delivered cocaine.
Another individual, Jamie Rodriguez, was Defendant Parada-Talamantes’s source
for cocaine and, after the transactions were completed, Defendant Parada-
Talamantes gave the proceeds to Rodriguez. Codefendant Delarca-Munguia told
investigators that Defendant Parada-Talamantes recruited him into the cocaine
distribution conspiracy and instructed him to retrieve a shipment of low-quality
cocaine from the Ortizes.
Although Parada-Talamantes contends that the facts of his recruitment and
decisionmaking were disputed, the testimony at the sentencing hearing established
that he recruited Delarca-Munguia and that he arranged for the sale of drugs to the
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Ortizes. Resolving factual disputes, the district court found that Parada-
Talamantes handled all the arrangements of the drug transactions and concluded
that the § 3B1.1(b) enhancement was appropriate.
Moreover, the facts are sufficient to support the managerial-role
enhancement. Defendant Parada-Talamantes recruited and directed his
codefendant Delarca-Munguia, which is generally sufficient to show the defendant
is a manager. See U.S.S.G. § 3B1.1 cmt. n.2; United States v. Jiminez, 224 F.3d
1243, 1251 (11th Cir. 2000) (stating that “the assertion of control or influence over
only one individual” is sufficient to support a role enhancement under § 3B1.1). In
addition, Defendant Parada-Talamantes arranged the drug transactions and
negotiated the sales with the Ortizes. See United States v. Perry, 340 F.3d 1216,
1217-18 (11th Cir. 2003) (upholding a § 3B1.1 role enhancement where, among
other things, the defendant recruited two others to transport drugs and then
arranged for one of those individuals to transport cocaine). Given that Defendant
Parada-Talamantes exerted some influence and authority over Delarca-Munguia,
he was more than a mere middleman between Rodriguez and the Ortizes. See
United States v. Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (upholding a
§ 3B1.1 enhancement where the defendant recruited and instructed coconspirators).
The mere fact that Defendant Parada-Talamantes was subordinate to Rodriguez did
not render Parada-Talamantes ineligible for the § 3B1.1(b) enhancement. See
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United States v. Jones, 933 F.2d 1541, 1546-47 (11th Cir. 1991) (rejecting
defendant’s argument that he was not a manager or supervisor because he was
subordinate to another individual in the drug distribution scheme because he
coordinated and managed delivery and transportation of the drugs).
There is also no merit to Defendant Parada-Talamantes’s claim that there
were less than five participants in the criminal activity. A “participant” is defined
as a “person who is criminally responsible for the commission of the offense” even
if the person was not charged or convicted. See U.S.S.G. § 3B1.1, cmt. n.1. To
determine the number of participants, the district court must examine the number
of individuals involved in the relevant conduct for which the defendant was
responsible. See U.S.S.G. Ch. 3, Pt. B, intro. cmt.; United States v. Holland, 22
F.3d 1040, 1046 (11th Cir. 1994).
Here, the three Ortizes were involved in, and criminally responsible for,
Defendant Parada-Talamantes’s criminal activity of distributing and possessing
with intent to distribute cocaine and marijuana, as they were the recipients of the
drugs supplied by Parada-Talamantes’s conspiracy. 1 In addition to the three
1
Parada-Talamantes contends that the Ortizes cannot be counted as participants because
they were part of a separate conspiracy to distribute drugs at the retail level. Even assuming
arguendo that there were two conspiracies, the Ortizes still can be counted as “participants” in
Parada-Talamantes’s criminal activity under § 3B1.1. See Holland, 22 F.3d at 1046 (“[I]n
deciding whether individuals were participants in the criminal activity, the court must consider,
in addition to the criminal act itself, the individuals’ involvement in the events surrounding the
criminal act.”). The Ortizes participated in Parada-Talamantes’s criminal activity by purchasing
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Ortizes, codefendant Delarca-Munguia and Defendant Parada-Talamantes’s
superior, Rodriguez, were also involved. Thus, under the undisputed facts, there
were at least six participants in Defendant Parada-Talamantes’s criminal activity.
Accordingly, the district court did not err in applying § 3B1.1(b)’s three-
level managerial role enhancement.
AFFIRMED.
distribution-level quantities of drugs from him and Delarca-Munguia, and the Ortizes were
criminally culpable for their part in those drug transactions.
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