United States v. Villareal , 350 F. App'x 840 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO VILLAREAL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:07-cr-00195-RJC-4)
Submitted: October 26, 2009 Decided: November 6, 2009
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
F. Lane Williamson, GARLITZ & WILLIAMSON, P.L.L.C., Charlotte,
North Carolina, for Appellant. Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Villareal was convicted by a jury of
conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine, 21 U.S.C. § 846 (2006) (Count
One), and conspiracy to commit money laundering, 18 U.S.C.
§ 1956(h) (2006) (Count Two), and was sentenced to a term of 360
months imprisonment. He appeals his sentence, arguing that the
district court clearly erred in finding that he was a manager or
supervisor in the conspiracy, U.S. Sentencing Guidelines Manual
§ 3B1.1(b) (2008), and erred in calculating his offense level
under USSG § 3D1.3(a). We affirm.
The evidence produced at trial established that
Villareal was involved in a conspiracy that transported large
amounts of cocaine from Mexico into the Rio Grande Valley area
in Texas and then in tractor-trailer trucks to North Carolina,
Florida, Georgia, New York and Texas for distribution. Large
amount of currency — drug proceeds — were also transported
regularly. Eduardo Saenz oversaw operations in Charlotte, North
Carolina, and Villareal, his long-time friend, assisted him. As
part of apparent counter-surveillance efforts, the conspirators
made a practice of switching vehicles frequently while
transporting drugs or money. Because they were in fact under
surveillance for much of the year before Villareal’s arrest,
many such vehicle-swaps were witnessed by law enforcement
2
agents. At Villareal’s trial, Yomil Prado and Jesus Balderas
testified that they made trips to destinations in North Carolina
and South Carolina under the direction of both Saenz and
Villareal during which vehicles were switched. They were
usually paid $2000 per trip, and received the money sometimes
from Saenz and sometimes from Villareal. On some trips, both
Saenz and Villareal were present, but frequently only Villareal
made the trip with them.
Under USSG § 3B1.1(b), a three-level enhancement
applies “[i]f 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.” Under
Application Note 2 to § 3B1.1, to qualify for the adjustment, a
defendant must have managed or supervised “one or more other
participants.” An upward departure may be warranted if the
defendant managed an organization’s property, assets or
activities. Id. The district court’s factual finding
concerning the defendant’s role in the offense is reviewed for
clear error. United States v. Sayles, 296 F.3d 219, 224 (4th
Cir. 2002). The court found that Villareal had a managerial
position because he coordinated drivers, paid the drivers,
handled large amounts of money, and acted independently of Saenz
at times. We conclude that the district court did not clearly
err in so finding.
3
Villareal’s two counts of conviction were grouped
together for sentencing purposes under USSG § 3D1.2(c). Under
USSG § 3D1.3(a), when counts are grouped together pursuant to
§ 3D1.2(a)-(c), the offense level for the group is the offense
level “for the most serious of the counts comprising the Group,
i.e., the highest offense level of the counts in the Group.”
Accordingly, the district court determined that the adjusted
offense level for the group was 43, the offense level for Count
Two, the money laundering offense. The district court then
varied downward to offense level 42.
Villareal contends on appeal that the district court
misapplied § 3D1.3, which provides that, when counts are grouped
together under § 3D1.2(c), the offense level for the group is
the offense level for “the most serious of the counts comprising
the Group, i.e., the highest offense level of the counts in the
Group.” Villareal claims that “the most serious of the counts”
should be taken to mean the count with the highest statutory
maximum.
However, the guideline explicitly defines the term
“the most serious of the counts comprising the group” as the
count with the highest offense level. Villareal relies on
United States v. Brinton, 139 F.3d 718 (9th Cir. 1998), as
support for his interpretation, based on the appeals court’s
statement that “since the [manufacturing counts] have the
4
potential to produce the highest offense level, the group
offense level should be determined under the guideline
applicable to those offenses.” Id. at 722. However, Brinton
did not address the interpretation of § 3D1.3(a) that Villareal
seeks to advance here. See United States v. Eversole, 487 F.3d
1024, 1032-33 (6th Cir. 2007) (the Brinton “court did not
calculate the respective offense levels . . . nor did it
explicitly hold that the ‘seriousness’ determination is
controlled by the statutory maximum sentence”). Eversole went
on to reject the interpretation of § 3D1.3(a) urged here by
Villareal and the view that Brinton “tacitly” supported that
view. Two other circuits have also rejected Villareal’s
interpretation of § 3D1.3(a). United States v. Kroeger, 229
F.3d 700, 703-04 (8th Cir. 2000) (“[T]he most serious count is
not the count with the greatest available maximum statutory term
of imprisonment; it is the count with the highest offense
level”); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir.
2003) (same). We find no error in the district court’s
calculation of Villareal’s offense level. Because his claims of
error are without merit, Villareal is not entitled to
resentencing.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
5
materials before the court and argument would not aid the
decisional process.
AFFIRMED
6