United States v. Adolfo Santillan Lopez ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 8, 2008
No. 07-11010 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80139-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADOLFO SANTILLAN LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 8, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Adolfo Santillan Lopez appeals his 120-month sentence imposed
after he pled guilty to conspiracy to possess with the intent to distribute at least 5
kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A). On
appeal, Lopez first argues that the district court erred by finding that his sentence
warranted a two-level enhancement because he was a mid-level supervisor,
pursuant to U.S.S.G. § 3B1.1(c). Second, Lopez argues that the statutory
minimum sentence provisions of 21 U.S.C. § 841(b)(1)(A) are unconstitutional
under the Due Process and Equal Protection Clauses of the U.S. Constitution and
violate his Eighth Amendment right to be free from cruel and unusual punishment.
Based on our review of the record and the parties’ briefs, we vacate and remand for
resentencing as to the first issue and affirm as to the second.
I. Aggravating-Role Enhancement
We review a district court’s determination of a defendant’s role in an offense
for clear error. United States v. Jiminez, 224 F.3d 1243, 1250-51 (11th Cir. 2000).
“[T]he ultimate determination of role in the offense is also a fundamentally factual
determination entitled to due deference.” United States v. Rodriguez De Varon,
175 F.3d 930, 938 (11th Cir. 1999) (en banc). “The government bears the burden
of proving by a preponderance of the evidence that the defendant had an
aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226
(11th Cir. 2003). “The findings of fact of the sentencing court may be based on
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evidence heard during trial, facts admitted by a defendant’s plea of guilty,
undisputed statements in the presentence report, or evidence presented at the
sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989).
Section 3B1.1(c) of the Sentencing Guidelines provides, “If the defendant
was an organizer, leader, manager, or supervisor in any criminal activity [that
involved fewer than 5 participants and was not otherwise extensive], increase by 2
levels.” The commentary elaborates, “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.” U.S.S.G. § 3B1.1, comment. (n.2). A
“participant” is “a person who is criminally responsible for the commission of the
offense, but need not have been convicted.” U.S.S.G. § 3B1.1, comment. (n.1).
An undercover law enforcement officer is not a participant. U.S.S.G. § 3B1.1,
comment. (n.1). “‘[P]articipation’ under the aggravating and mitigating role
guidelines implies criminal liability and intent, that the individual be an actual
member of the plan or conspiracy.” United States v. Costales, 5 F.3d 480, 484
(11th Cir. 1993). We have held that “a mere buyer/seller relationship is inadequate
to link individuals to a conspiracy.” United States v. Revel, 971 F.2d 656, 660
(11th Cir. 1992).
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In order to warrant an enhancement under U.S.S.G. § 3B1.1(c), a defendant
must have “control over another participant in the criminal activity.” United States
v. Harness, 180 F.3d 1232, 1235 (11th Cir. 1999). The “assertion of control or
influence over only one individual is enough to support a § 3B1.1(c)
enhancement.” Jiminez, 224 F.3d at 1251. A district court errs if there is no
evidence or findings of fact that would support the conclusion that a defendant
organized, led, managed, or supervised one or more participants who engaged in
the criminal activities. See Harness, 180 F.3d at 1235.
Here, we conclude from the record that the district court clearly erred by
finding that Lopez warranted an aggravating-role enhancement under U.S.S.G.
§ 3B1.1(c) because there is no evidence to support the finding that Lopez
controlled another participant in the criminal offense.
II. Constitutionality of 21 U.S.C. § 841(b)(1)
We review de novo whether a statute is constitutional. United States v.
Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). Section 841(b)(1) of Title 21
provides, in part, that “any person who violates subsection (a) of this section
involving . . . 5 kilograms or more of a mixture or substance containing a
detectable amount of . . . cocaine . . . shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life . . .” 21 U.S.C.
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§ 841(b)(1)(A)(ii)(II).
We have upheld the constitutionality of 21 U.S.C. § 841(b)(1)’s mandatory
minimum sentencing provisions against due process, equal protection, and Eighth
Amendment challenges. See United States v. Holmes, 838 F.2d 1175, 1177-78
(11th Cir. 1988) (holding that § 841(b)(1)’s mandatory minimum provisions were
rationally related to the objectives of protecting public health and welfare); United
States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (holding that the mandatory life
sentence provisions of 21 U.S.C. § 841(b)(1) do not violate Eighth Amendment).
Because we previously have held that the mandatory minimum sentence
provisions in 21 U.S.C. § 841(b)(1) are constitutional, Lopez’s argument that they
are unconstitutional fails.
In conclusion, because no evidence supports the finding that Lopez
controlled another participant in the criminal offense, we vacate Lopez’s sentence
and remand this case for resentencing. Because we have held that the mandatory
minimum sentence provisions in 21 U.S.C. § 841(b)(1) are constitutional, we
affirm as to the second issue.
VACATED AND REMANDED in part, AFFIRMED in part.
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