United States v. Martinez-Perez , 422 F. App'x 265 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4728
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEREMY MARTINEZ-PEREZ,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:08-cr-01074-TLW-1)
Submitted: March 22, 2011 Decided: April 8, 2011
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremy Martinez-Perez was charged by a federal grand
jury with conspiracy to possess with intent to distribute and to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 846 (2006). Martinez-Perez pleaded guilty, and the
district court sentenced him to 120 months’ imprisonment, the
mandatory statutory minimum. Martinez-Perez noted a timely
appeal. Finding no reversible error, we affirm.
On appeal, Martinez-Perez argues that the facts on the
record do not support the district court’s conclusion that
Martinez-Perez was a leader, supervisor, or manager within the
meaning of U.S. Sentencing Guidelines Manual (“USSG”) § 3B1.1(c)
(2009). He asserts that, because the district court erroneously
applied the leadership enhancement, it also improperly failed to
sentence him in accordance with the safety valve provisions of
USSG § 5C1.2 and 18 U.S.C. § 3553(f) (2006).
The district court’s determination that a sentencing
enhancement is warranted is a factual determination reviewed for
clear error. United States v. Kellam, 568 F.3d 125, 147-48
(4th Cir.), cert. denied, 130 S. Ct. 657 (2009). We will
reverse only if we are left with the “definite and firm
conviction that a mistake has been committed.” United States v.
Harvey, 532 F.3d 326, 337 (4th Cir. 2008) (internal quotation
marks omitted).
2
A defendant qualifies for a two-level enhancement if
he was an “organizer, leader, manager, or supervisor” in any
criminal activity that did not involve five or more participants
and was not otherwise extensive. USSG § 3B1.1(c). Factors
distinguishing a leadership or organization role from lesser
roles include:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4; United States v. Cameron, 573 F.3d 179,
184 (4th Cir. 2009). The leadership enhancement “is appropriate
where the evidence demonstrates that the defendant controlled
the activities of other participants or exercised management
responsibility.” United States v. Slade, 631 F.3d 185, 190
(4th Cir. 2011) (internal quotation marks omitted). The facts
establishing the enhancement must be by a preponderance of the
evidence. Harvey, 532 F.3d at 337.
We find that the district court did not clearly err in
concluding that the Government met this burden. Martinez-Perez
obtained cocaine in Texas for sale in South Carolina. He used
multiple individuals and bank accounts to transfer the proceeds
back to Texas. The district court permissibly concluded that in
doing so, Martinez-Perez did more than simply sell cocaine to
3
local suppliers — he actively managed the movement of the
proceeds of those sales from South Carolina back to Texas.
Moreover, because the district court did not clearly err in
applying the leadership enhancement, Martinez-Perez does not
meet the requirements for the safety valve. See USSG
§ 5C1.2(a)(4).
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 the
court and argument would not aid the decisional process.
AFFIRMED
4