United States v. Pascual Marroquin-Alvarez , 412 F. App'x 244 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12120 ELEVENTH CIRCUIT
Non-Argument Calendar FEB 2, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-00363-TWT-RGV-8
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
PASCUAL MARROQUIN-ALVAREZ,
a.k.a. Musico,
llllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 2, 2011)
Before EDMONDSON, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Pascual Marroquin-Alvarez (“Marroquin”) appeals his 235-month total
sentence, imposed within the applicable guideline range, after pleading guilty to
conspiracy to possess with intent to distribute cocaine and substantive cocaine
possession, pursuant to 21 U.S.C. §§ 841(a)(1) and 846. Following his plea of guilty
to his involvement in a large-scale cocaine distribution conspiracy, the pre-sentence
investigation report (“PSI”) alleged that, as the individual responsible for receiving
and unloading the cocaine shipments, Marroquin acted in a managerial role.
Marroquin objected, but the district court overruled his objection at sentencing after
a government witness testified to Marroquin’s role. On appeal, Marroquin argues that
the district court erred in applying a three-level managerial role enhancement. After
thorough review, we affirm.
We review the district court’s decision to apply an aggravating role
enhancement for clear error. United States v. Poirier, 321 F.3d 1024, 1036 (11th Cir.
2003). When reviewing for clear error, we will not reverse unless left with a “definite
and firm conviction that a mistake has been committed.” Id. at 1035 (quotation
omitted). When a defendant objects to a fact in the PSI, this requires the government
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to prove the disputed fact by a preponderance of the evidence. See United States v.
Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009).
Where “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,” sentencing courts should apply a three-level enhancement. U.S.S.G. §
3B1.1(b). Thus, two elements must be met: (1) the defendant must be a manager or
supervisor; and (2) the conspiracy must involve five or more people or be otherwise
extensive.
In evaluating whether a defendant played a managerial (or leadership) role, the
commentary to § 3B1.1 states that the court should consider: (1) the exercise of
decision making authority; (2) the nature of participation in the commission of the
offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of
the fruits of the crime; (5) the degree of participation in planning or organizing the
offense; (6) the nature and scope of the illegal activity; and (7) the degree of control
and authority exercised over others. U.S.S.G. § 3B1.1, comment. (n.4). All of these
considerations need not be present in any one case. Martinez, 584 F.3d at 1026.
A § 3B1.1 enhancement is appropriate as long as the defendant led, organized,
managed, or supervised “at least one other participant in the crime.” United States
v. Campa, 529 F.3d 980, 1013 (11th Cir. 2008) (quotation omitted); U.S.S.G. §
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3B1.1, comment. (n.2). A role enhancement requires that “the defendant exerted
some control, influence[,] or decision-making authority over another participant in
the criminal activity.” Martinez, 584 F.3d at 1026. Thus, a defendant’s management
of assets of the conspiracy, on its own, is insufficient to support a § 3B1.1
enhancement. Id.
In Martinez, upon which both parties rely in part, the defendant admitted at his
plea hearing that he “orchestrated the weekly shipment” of drugs through the mail,
and “utilized others” to help him. Id. at 1024. The PSI used this admission to support
a leadership enhancement, adding that he enlisted family members to assist him. Id.
The defendant objected to a leadership enhancement and the supporting factual
allegation, but the government introduced no evidence supporting its position at
sentencing. Id. at 1024-25. The district court summarily overruled the objection. Id.
at 1025.
We held that the defendant’s plea hearing admissions to orchestrating drug
shipments did not, on their own, show by a preponderance of evidence that he acted
as a leader. Id. at 1027-28. In doing so, we noted that in the absence of a government
sentencing presentation, there was no undisputed evidence that the defendant
exercised authority over any co-conspirators, and the admission to “orchestrat[ing],”
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on its own, did not suggest that the defendant managed the transaction. Id. at
1028-29.
The record here shows that the evidence the government provided at sentencing
corroborated the factual allegations in the PSI and supported the inference that
Marroquin was not only the manager of the cocaine itself during the unloading and
receiving phase of the conspiracy, but also the manager of any co-conspirators also
involved in that task. We note that Marroquin presented no evidence of his own to
rebut this inference. Accordingly, we hold that the district court did not clearly err
in finding that Marroquin played a managerial role in the conspiracy, and applying
a corresponding three-level enhancement.
AFFIRMED.
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