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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12612
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20471-RNS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCESCO FLABIO GUERRA PEREZ,
a.k.a. Alvaro Rios,
a.k.a. Juan Diaz,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 21, 2021)
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
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Francesco Flabio Guerra Perez appeals his 90-month concurrent sentences for
thirteen counts of mail fraud, wire fraud, conspiracy to commit mail and wire fraud,
and attempted extortion. Guerra Perez argues that the district court erred in applying
a three-level enhancement to his sentence based on a finding that he was a manager
or supervisor in a criminal activity involving five or more people. Guerra Perez
challenged the sufficiency of the government’s evidence at sentencing, but he did
not challenge the reliability, authenticity, or credibility of that evidence. Because the
evidence shows that Guerra Perez more likely than not was a manager or supervisor
in a criminal activity, we cannot conclude that the court erred. Accordingly, we
AFFIRM.
BACKGROUND
We presume familiarity with the factual and procedural history and describe
it below only to the extent necessary to address the issues raised in this appeal.
Guerra Perez pleaded guilty to being involved in a criminal scheme involving
a call center with employees in Peru and Miami. The center employed dozens of
individuals who together impersonated a business’s “legal department.” The scheme
involved an employee calling a victim in the United States with a false claim that
the victim had failed to accept delivery of and pay for products from unaffiliated
companies. The employee then would state that the victim was liable for substantial
costs arising from the failed delivery and that the victim faced potential deportation,
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detention, negative credit reports, confiscation of property, and community service.
To avoid these measures, the victim could instead settle the claim for a fraction of
the fraudulent total. Once the call center employee received an extorted settlement,
the center would send a package to the victim with the products that the victim had
allegedly purchased. The center then used shipping records of these packages to
defend against victim complaints and payment refund requests. Those involved in
this fraudulent scheme duped more than 8,400 victims out of more than $1.5 million.
The scheme came to an end in 2015 when Guerra Perez and his co-
conspirators were arrested in Peru. Four years later, they were extradited to the
United States where Guerra Perez pleaded guilty to thirteen counts of mail fraud,
wire fraud, conspiracy to commit mail and wire fraud, and attempted extortion.
Guerra Perez’s presentence investigation report set his base offense level at seven
and enhanced it by 29 levels. Guerra Perez objected to a three-level enhancement
for his role as a supervisor or manager and requested a downward variance based on
his youth and the difficult conditions of being imprisoned in Peru while he contested
extradition.
The government opposed the motion and attached to its opposition a series of
relevant exhibits, including an affidavit signed by U.S. Postal Inspector Bryan
Masmela, who had acted as the lead case agent. The government also presented
statements from two call center managers in Peru, Johnny Hidalgo and Rodolfo
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Hermoza Vega, and from one of Guerra Perez’s former Miami colleagues, Cinthya
Guerrero. Guerrero stated that Guerra Perez supervised the call center, trained
employees, processed payments, and worked with the Florida employees to address
victim complaints. The government provided emails that corroborated her
declaration by describing Guerra Perez’s transition to an administrative role. Both
Hidalgo and Hermoza Vega identified Guerra Perez as a manager or supervisor. And
Guerra Perez described himself as management on his Facebook page.
At sentencing, Guerra Perez spoke at length about his role in the scheme and
his relative culpability compared to that of the other defendants. Masmela was
present at the hearing, but Guerra Perez did not question him. The court overruled
Guerra Perez’s objection to the aggravating-role enhancement but granted his
motion for a downward variance and sentenced him to concurrent terms of 90
months’ incarceration.
DISCUSSION
Guerra Perez asks us to remand his case for resentencing. He argues that the
district court erred in applying a three-level aggravating-role enhancement for a
“defendant [who] was a manager or supervisor (but not an organizer or leader) and
[where] the criminal activity involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(b). He argues that the government failed to present
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sufficient and reliable evidence at sentencing to show he had control or supervisory
authority over any other individuals involved in the conspiracy.
Most of Guerra Perez’s arguments are being raised for the first time on appeal.
At sentencing, Guerra Perez argued that he never managed or supervised anyone,
was subordinate to Hidalgo and Hermoza Vega, and was not compensated as a
manager or supervisor. But only now has he specifically argued that neither the
government’s evidence nor witnesses were properly presented at sentencing for a
credibility determination; that the affidavit, declaration, and Facebook page were all
unreliable hearsay; and that many of the government’s documents were not
authenticated.
We review for clear error a district court’s decision to impose an aggravating-
role enhancement at sentencing. United States v. Sosa,
777 F.3d 1279, 1300 (11th
Cir. 2015). Clear error review is deferential, and we will disturb a district court’s
factual findings only if we are left with “a definite and firm conviction that a mistake
has been committed.” United States v. Cruickshank,
837 F.3d 1182, 1192 (11th Cir.
2016) (cleaned up).
When an argument is raised for the first time on appeal, however, we review
for plain error. United States v. Henderson,
409 F.3d 1293, 1307 (11th Cir. 2005).
To reverse under the plain error standard, “we must conclude that: (1) an error
occurred, (2) the error was plain, (3) the error affected substantial rights in that it
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was prejudicial and not harmless, and (4) the error seriously affected the fairness,
integrity, or public reputation of a judicial proceeding.” United States v. Perez,
661
F.3d 568, 583 (11th Cir. 2011). That test is satisfied if the district court contravenes
either the explicit language of a statute or rule or controlling precedent from the
Supreme Court or this Court. United States v. Lejarde-Rada,
319 F.3d 1288, 1291
(11th Cir. 2003).
When sentencing a defendant, the district court may consider any information
with sufficient indicia of reliability to support its probable accuracy. U.S.S.G.
§ 6A1.3(a). Such information might include written statements of counsel or
affidavits of witnesses and need not be admissible at trial. Id. § 6A1.3, cmt. The
sentencing court may consider the evidence so long as: (1) it has sufficient indicia
of reliability, (2) the court makes explicit credibility findings, and (3) the defendant
has an opportunity to rebut the evidence. United States v. Hernandez,
906 F.3d 1367,
1369 (11th Cir. 2018). But we will not necessarily reverse or remand a district
court’s failure to make explicit findings regarding the reliability of a witness’s
hearsay testimony “where the reliability of the statements is apparent from the
record.” United States v. Docampo,
573 F.3d 1091, 1098 (11th Cir. 2009) (cleaned
up).
Here, the sentencing court did not err in applying an aggravating-role
sentencing enhancement and its finding did not contravene the Sentencing
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Guidelines or controlling precedent. Guerra Perez objects that the court did not make
detailed factual findings at sentencing. But no such detailed findings were required
because the court found that the undisputed facts clearly established that Guerra
Perez had a role as a supervisor or manager in a criminal activity involving more
than five people.
Nor was the court required to make an explicit determination that the
government’s evidence was reliable; sufficient indicia of reliability were apparent
from the record. Masmela’s statements were detailed and corroborated by the
government’s other evidence. The statements of Hidalgo, Hermoza Vega, and
Guerrero were all made under oath or under penalty of perjury and were against each
person’s penal interests. Each statement identified Guerra Perez as a manager or
supervisor. Guerra Perez also identified himself as management in a statement on
his Facebook page. If Guerra Perez disputed this evidence, he should have developed
those objections at sentencing. For example, he could have cross-examined
Masmela, who was present at sentencing, to challenge Masmela’s credibility or the
reliability of his affidavit. But he did not.
The evidence presented supports the district court’s finding that Guerra Perez
was a manager or supervisor in a criminal activity. Guerra Perez relies on seven
factors in the Guidelines commentary to evaluate whether a role enhancement was
warranted, but those factors apply to “distinguishing a leadership and organizational
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role from one of mere management or supervision.” U.S.S.G. § 3B1.1 cmt. n.4.
Accordingly, even if we were to agree with Guerra Perez’s analysis of these factors,
we would only know that Guerra Perez was not in a leadership or organizational
role; we would not know much about whether he held a management or supervision
role. Regardless, the evidence from the statements and Guerra Perez’s own
Facebook account support the court’s finding that Guerra Perez was a manager or
supervisor and, therefore, that the aggravating-role enhancement applied.
CONCLUSION
The court did not err in applying the aggravating-role enhancement to Guerra
Perez’s sentence. The sentence is AFFIRMED.
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