United States v. Oscar Alcides-Mendez , 587 F. App'x 72 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR ALCIDES-MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:13-cr-00631-HMH-4)
Submitted: November 25, 2014 Decided: December 11, 2014
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Andrew Burke Moorman, Sr., Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oscar Alcides-Mendez pled guilty to one count of
conspiracy to possess with intent to distribute and distribution
of five kilograms or more of cocaine and 100 kilograms or more
of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
and 846 (2012). The district court sentenced Alcides-Mendez to
130 months’ imprisonment. Alcides-Mendez timely appeals his
sentence, arguing that the district court (1) erred in applying
a three-level enhancement under U.S. Sentencing Guidelines
Manual (“USSG”) § 3B1.1(b); (2) should have granted him safety
valve relief under USSG § 5C1.2; and (3) failed to adequately
inquire into a presentence conflict between Alcides-Mendez and
his counsel. Finding no error, we affirm.
Alcides-Mendez’s argument regarding the three-level
enhancement is two-fold: first, he contends that the district
court failed to make factual findings supporting the
enhancement, and second, he asserts that the evidence does not
support application of the enhancement. To permit meaningful
appellate review, a district court should make factual findings
when ruling on a disputed Sentencing Guidelines enhancement.
See Fed. R. Crim. P. 32(i)(3)(B) (providing that, at sentencing,
the district court “must – for any disputed portion of the
presentence report or other controverted matter – rule on the
dispute or determine that a ruling is unnecessary”); United
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States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010) (“[A]
sentencing court must provide a sufficient explanation of its
rationale in making factual findings to support its calculation
of a defendant’s Guidelines range.”). A district court may
satisfy this requirement, however, by adopting factual findings
in the record, so long as it is clear what disputed issues are
resolved. United States v. Bolden, 325 F.3d 471, 497 (4th Cir.
2003). Here, following the Government’s arguments in favor of
the enhancement, the district court adopted the facts as
summarized by the Government. Accordingly, the district court
properly established its factual basis for applying the disputed
enhancement.
As to the second aspect of the enhancement challenge,
Alcides-Mendez argues that the Government offered insufficient
evidence to sustain the enhancement. Under USSG § 3B1.1(b), a
three-level enhancement is warranted if “the defendant was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants.” A
district court’s “ruling regarding a role adjustment is a
factual determination reviewed for clear error.” United
States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
Alcides-Mendez concedes that the conspiracy involved five or
more participants, challenging only whether he was a manager or
supervisor. The three-level enhancement is applicable if the
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defendant managed or supervised at least one other participant
in the conspiracy. United States v. Rashwan, 328 F.3d 160, 166
(4th Cir. 2003).
Evidence considered by the district court revealed
that Alcides-Mendez recruited a coconspirator to transport
cocaine on Alcides-Mendez’s behalf and at his direction.
Evidence was further offered that Alcides-Mendez determined how
much cocaine his recruit would transport on any given trip,
arranged the travel logistics, and paid his recruit on a flat,
by-the-trip basis, much like one would pay an employee. Based
on this evidence, the district court did not clearly err in
ruling that a preponderance of the evidence supported the
conclusion that Alcides-Mendez was a manager or supervisor over
at least one participant in the conspiracy.
The conclusion that Alcides-Mendez was a manager or
supervisor is dispositive on the second issue, whether Alcides-
Mendez was eligible for safety valve relief. Pursuant to USSG
§ 5C1.2(a)(4), a defendant is eligible for sentencing under the
safety valve only if “the defendant was not an organizer,
leader, manager, or supervisor of others in the offense.”
Accordingly, the district court properly denied safety valve
relief.
Finally, Alcides-Mendez argues that the district court
failed to make proper inquiry into a conflict he had with his
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attorney prior to sentencing that resulted in his inadequate
understanding of the presentence report. The record belies this
claim, however, and reflects that the district court did explore
this issue and found that counsel provided Alcides-Mendez with a
full explanation of the report. Therefore, this claim warrants
no relief.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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