United States v. Jesus Ayala, Jr. ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4678
JESUS AYALA, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4679
JAVIER AYALA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4680
MARICELLA AYALA,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-98-1234)
Submitted: March 31, 2000
Decided: April 21, 2000
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
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COUNSEL
A. Peter Shahid, Jr., SHAHID LAW OFFICE, L.L.C., Charleston,
South Carolina; Donald H. Howe, HOWE & WYNDHAM, L.L.C.,
Charleston, South Carolina; Kenneth C. Krawcheck, KRAWCHECK
& DAVIDSON, L.L.C., for Appellants. J. Rene Josey, United States
Attorney, Matthew R. Hubbell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Pursuant to their guilty pleas, Jesus Ayala, Jr. ("Jesus"), Javier
Ayala ("Javier"), and Maricella Ayala ("Maricella") were convicted of
conspiracy to knowingly possess forged or counterfeited alien regis-
tration cards. On appeal, all three Appellants challenge the district
court's decision to enhance their base offense levels for their roles in
the offense.1 Appellants also allege that the district court should have
reduced their base offense levels by three levels because the offense
was committed other than for profit.2 Finding no reversible error, we
affirm.
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1 See U.S. Sentencing Guidelines Manual § 3B1.1 (1998). Jesus and
Javier each received a four-level enhancement as organizers or leaders
under subsection (a). Maricella received a three-level enhancement as a
manager or supervisor under subsection (b).
5130 35 5 2 See USSG § 2L2.1(b)(1).
2
The basic facts of this case are undisputed. Appellants are siblings
who own and operate a series of Mexican restaurants in the Charles-
ton, South Carolina, area. After a lengthy investigation, INS and Cus-
toms Service agents raided several restaurants, including the seven
owned by Appellants. Seventy illegal aliens were found working in
Appellants' restaurants.3 Forged and counterfeited registration docu-
ments were also seized. The record shows that a manager at one of
Appellants' restaurants ("Lumbardo") supplied the aliens with fake
"green cards."
We review the district court's factual determination concerning
Appellants' roles in the offense for clear error and find none. See
United States v. Campbell, 935 F.2d 39, 46 (4th Cir. 1991). Appel-
lants contend that the district court erroneously focused on their man-
agerial roles in the legitimate aspects of their restaurant business
rather than the narrow offense of conviction. We disagree. The court
was clearly allowed to look at all relevant conduct in fashioning its
sentences.4 Moreover, the district court correctly concluded that the
object of the conspiracy was not merely to possess fake alien registra-
tion documents. Rather, the primary focus of the conspiracy was to
bring illegal aliens into the United States from Mexico, where they
would work long hours for low pay in Appellants' restaurants,
thereby greatly increasing the restaurants' profits.
We find that there was substantial evidence to support the district
court's conclusion that Appellants played significant roles in bringing
illegal aliens into the United States and using them to work in their
restaurants. Three restaurant managers, including Lumbardo, agreed
to cooperate with investigators. Other workers and a confidential
informant hired by Appellants also agreed to cooperate.
The evidence showed that Jesus and Javier controlled most of the
operation. One of the managers told agents that Jesus told him that it
was the managers' responsibility to obtain fake green cards for their
employees. Another manager stated that Jesus told him to go to Sears
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3 In fact, nearly all of the employees at Appellants' restaurants were
illegal aliens.
4 See USSG § 1B1.3.
3
to get photographs taken of the workers and to send the photos to
Lumbardo for use in the fake green cards. The cost of the false docu-
ments would then be taken out of the workers' pay. Jesus leased
apartments for the workers, and on one occasion told Javier to change
workers' living arrangements because they were too expensive. Jesus
closely monitored the workers' pay, and either he or one of the other
managers would sign the workers' payroll checks and redeposit them
into the restaurants' bank accounts, paying the workers in cash --
usually for less than the amount of the payroll checks. Witnesses fur-
ther stated that Jesus frequently paid the smuggling fee for workers
and then had them reimburse him from their pay. Finally, Jesus con-
trolled the money for the organization and reaped a large share of the
profits.
Javier also played a significant role. One of the managers stated
that Javier and Jesus were equals in the organization. Javier hired a
confidential informant who clearly stated that he was an illegal alien.
Javier told the informant that fake papers were acceptable and that the
informant could get a fake green card from Lumbardo. Javier also
leased rooms for workers and paid smuggling fees. Finally, Javier and
Jesus were the only ones with access to the safe where the restaurants'
profits were kept, and he also reaped a larger share of those profits.
The district court properly found that Maricella played a large role
in the conspiracy, but that she was subservient to her brothers. The
Government produced a tape recorded conversation between Mari-
cella and a Border Patrol agent5 in which she bragged about employ-
ing a lot of illegal aliens in the family's restaurants. She also stated
that she recently paid $5000 to bring aliens into the United States ille-
gally and to obtain documents. One of the managers testified that she
hired him knowing that he was an illegal alien, but had to get Jesus'
permission first. Finally, the record shows that Maricella helped
workers obtain driver's licenses from a corrupt official at the Depart-
ment of Motor Vehicles.
We likewise find no clear error in the district court's refusal to
reduce Appellants' base offense level under USSG§ 2L2.1(b)(1).
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5 At the time, Maricella and the agent were involved in a romantic rela-
tionship.
4
Appellants bore the burden of showing that they were entitled to the
adjustment, and they failed to meet this burden. See United States v.
Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). Although
Appellants were not paid directly for the fake green cards, the record
shows that the cost of the cards was taken from the workers' pay.
More importantly, Appellants realized significant profits by employ-
ing illegal aliens who would work long hours for low pay.6
Accordingly, we affirm Appellants' sentences. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court, and argument would not
aid the decisional process.
AFFIRMED
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6 Appellants further employed the aliens in violation of wage and hour
and tax laws.
5