United States v. Javier Rodriguez ( 2024 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0399n.06
No. 23-5514
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Oct 02, 2024
KELLY L. STEPHENS, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE WESTERN DISTRICT OF
) KENTUCKY
JAVIER H. RODRIGUEZ, )
Defendant-Appellant. ) OPINION
)
Before: SUTTON, Chief Judge; LARSEN and MURPHY, Circuit Judges.
MURPHY, Circuit Judge. Javier Rodriguez ran a large drug-trafficking organization. As
part of his illicit operation, Rodriguez helped murder a drug dealer whom he suspected had taken
part in a robbery of the organization. Rodriguez pleaded guilty to drug and firearm offenses for
his crimes. At his sentencing, the district court imposed an aggravating-role enhancement because
Rodriguez had been a “manager” of the drug operation and because the operation had “involved
five or more participants[.]” U.S.S.G. § 3B1.1(b). Rodriguez objected to this enhancement. He
primarily argued that, because the court had used the murder guideline to calculate his base offense
level, it could not use the drug-trafficking guideline to impose the enhancement. He added that
his murder involved only three (not five) coconspirators. We disagree and affirm.
I
Because Rodriguez did not dispute his presentence report’s description of the events, we
rely on that report to summarize most of the facts. See Fed. R. Crim. P. 32(i)(3)(A); United States
No. 23-5514, United States v. Rodriguez
v. Warren, 2023 WL 1961222, at *1 (6th Cir. Feb. 13, 2023). In late 2016, the Drug Enforcement
Administration learned of a large drug-trafficking organization in Louisville, Kentucky, run by
Rodriguez’s father. The organization regularly imported kilograms of illegal drugs, including
methamphetamine, heroin, and cocaine, for resale in Louisville.
Starting in November 2017, the DEA used a confidential source to buy large quantities of
drugs from Rodriguez. Wiretaps also disclosed Rodriguez’s conversations managing the drug
operation. He often negotiated drug deals with “multiple sources of supply” in the United States
and Mexico. Rep., R.471, PageID 4477. When the large shipments of drugs arrived in Louisville,
Rodriguez would coordinate with an accomplice, Dwain Castle, to store the drugs at various
“stash” houses. Id. Rodriguez also tasked Castle with redistributing the drugs to lower-level
dealers for their ultimate sale to end users.
In January 2018, Rodriguez learned of a lucrative deal from another member of the
drug-trafficking organization: Vincent Ramirez. According to Ramirez, a new buyer wanted a
kilogram of heroin for $70,000. Unsure of this buyer’s trustworthiness, Rodriguez took
precautions when setting up the deal. The precautions proved warranted. At the exchange site,
another (unknown) individual began firing at Rodriguez and Castle. A shootout ensued. This
individual successfully made off with the $70,000 worth of heroin.
After the robbery, an angry Rodriguez wanted revenge. And the supplier of the stolen
heroin offered to forgive his $70,000 debt if the robbers were “taken care of.” Id., PageID 4479.
Ramirez, by contrast, felt remorse because he had unwittingly arranged the deal gone bad. To
make up for it, Ramirez offered to sell Rodriguez’s marijuana without taking a cut. This offer
failed to smooth things over. Rodriguez soon came to suspect that Ramirez had participated in the
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robbery. Rodriguez and Castle told another member of the organization, Charles Cater, that they
would pay him $15,000 to kill Ramirez.
The three men carried out this murder. Rodriguez instructed Ramirez to meet at a certain
location to obtain the marijuana. Rodriguez, Castle, and Cater drove to this location together.
Rather than provide marijuana, Cater walked up to Ramirez’s car and shot him. Ramirez died.
Rodriguez and Castle then picked up Cater and fled.
A federal grand jury indicted Rodriguez on five counts. It charged him with using a firearm
during a drug-trafficking crime that resulted in Ramirez’s murder. See 18 U.S.C. § 924(c)(1)(A),
(j)(1). It also charged him with conspiring to possess with the intent to distribute various amounts
of several drugs from November 2017 to February 2018. See 21 U.S.C. §§ 841(a)(1), 846. And
it charged him with three counts of possession with the intent to distribute various drugs. See id.§ 841(a)(1). Rodriguez pleaded guilty to all counts without a plea agreement.
At sentencing, the parties agreed on the starting point for Rodriguez’s guidelines range.
Neither party disputed that the guideline for first-degree murder (U.S.S.G. § 2A1.1) applied to
Rodriguez’s four drug offenses, not just his murder offense. Why? The drug-offense guideline
contains a cross-reference that instructs courts to use this murder guideline “[i]f a victim was killed
under circumstances that would constitute murder” and if the use of the murder guideline would
lead to a higher offense level. U.S.S.G. § 2D1.1(d)(1). This cross-reference generated the highest
possible base offense level: 43. See id. § 2A1.1(a).
The parties’ agreement ended there. They disagreed over whether the district court should
increase this base offense level under U.S.S.G. § 3B1.1. This guideline directs courts to increase
the offense level between two and four levels if a defendant had an “aggravating role” in the crime.
See id. § 3B1.1(a)–(c). As relevant here, subsection (a) imposes a four-level enhancement “[i]f
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the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive[.]” Id. § 3B1.1(a). And subsection (b) imposes a
three-level enhancement “[i]f the defendant was a manager or supervisor (but not an organizer or
leader)” in the same type of criminal activity. Id. § 3B1.1(b). Relying on Rodriguez’s drug
operation, the government requested a four-level increase because Rodriguez had organized or led
the conspiracy and because the conspiracy had involved at least five coconspirators. In response,
Rodriguez pointed out that the government had relied on the murder cross-reference for his drug
offenses and that this murder included only three participants: Rodriguez, Castle, and Cater.
According to Rodriguez, the government could not use the murder to choose the base offense level
but then switch to the drug conspiracy to identify the five participants for the aggravating-role
enhancement.
The district court partially sided with the government. The court reasoned that it was “well
within the nature of [§] 3B1.1 to take into account the entire conspiracy” when deciding whether
Rodriguez’s “criminal activity” “involved five or more participants[.]” Sent. Tr., R.500, PageID
4722; U.S.S.G. § 3B1.1(a). And it held that this conspiracy had at least five participants. But it
applied only a three-level enhancement because it found that Rodriguez had been a “manager or
supervisor” rather than an “organizer or leader” of the drug-trafficking ring. U.S.S.G. § 3B1.1(b).
The court calculated Rodriguez’s guidelines range as life imprisonment. It varied downward by
sentencing him to a total of 480 months’ imprisonment.
II
On appeal, Rodriguez renews his challenge to the aggravating-role enhancement. Recall
that this guideline directs courts to increase a defendant’s offense level by three “[i]f the defendant
was a manager or supervisor (but not an organizer or leader) and the criminal activity involved
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five or more participants or was otherwise extensive[.]” U.S.S.G. § 3B1.1(b). This text requires
a court to make two basic findings. See Warren, 2023 WL 196122, at *3. The defendant must
have been a “manager or supervisor” of the “criminal activity.” U.S.S.G. § 3B1.1(b). And this
activity must have “involved five or more participants” or been “otherwise extensive[.]” Id.
When evaluating a district court’s use of this enhancement, we review its factual findings
for clear error. See United States v. Sexton, 894 F.3d 787, 794 (6th Cir. 2018). We review its legal
conclusions de novo. See United States v. Minter, 80 F.4th 753, 757 (6th Cir. 2023). And we give
“deferential” review to its ultimate holding that the historical facts satisfied our legal standards.
United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013).
If Rodriguez’s drug conspiracy was part of the “criminal activity” that we may consider
under § 3B1.1(b), the district court’s decision easily meets these review standards. Start with the
“manager or supervisor” element. Although Rodriguez now hints that he did not manage the drug
operation, Appellant’s Br. 12–13, his counsel conceded in the district court that Rodriguez had a
“managerial” role. Sent. Tr., R.500, PageID 4717. Trial counsel even agreed to “stipulate that
[Rodriguez] had managerial discretion.” Id., PageID 4723. So Rodriguez waived any contrary
claim. See United States v. Carter, 89 F.4th 565, 568 (6th Cir. 2023).
Turn to the element requiring “five or more participants.” The district court did not commit
a clear error by finding that Rodriguez’s drug operation included at least five participants. See
Sexton, 894 F.3d at 794. If anything, the presentence report shows that the operation had well over
this many actors: Rodriguez himself, Castle, Cater, Ramirez, an associate nicknamed “Burnt
Rubber,” Rodriguez’s “multiple sources of supply,” and the “lower level traffickers” that resold
the drugs. Rep., R.471, PageID 4477–79. In response, Rodriguez criticizes the district court’s use
of the presentence report to find the historical facts. But he did not object to any of these facts and
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so the court could treat them as “undisputed” when calculating his guidelines range. Fed. R. Crim.
P. 32(i)(3)(A); see United States v. Baker, 559 F.3d 443, 449 (6th Cir. 2009).
All of this said, our analysis began with the assumption that we could consider Rodriguez’s
drug conspiracy when deciding whether the aggravating-role enhancement should apply. And
Rodriguez next claims that we must ignore this drug conspiracy. He relies on the district court’s
decision to invoke the cross-reference to the first-degree murder guideline when calculating his
base offense level for his drug crimes. See U.S.S.G. § 2D1.1(d)(1). Once the district court relied
on this murder cross-reference, Rodriguez says, the court should have evaluated the aggravating-
role enhancement by reference only to the murder, not the drug conspiracy.
The aggravating-role guideline says little on this topic. It requires a court to consider
whether a defendant was a manager of “criminal activity” but does not define this phrase.
Id. § 3B1.1(b). Another guideline clarifies the phrase in part. See id. § 1B1.3(a). Section 1B1.3
provides an expansive definition of the “relevant conduct” that courts must consider when making
“adjustments” under Chapter Three. Id. The introductory comment to Part 3B (which contains
the aggravating-role guideline) reiterates that courts should consider “all conduct within the scope
of § 1B1.3 (Relevant Conduct)” and not focus “solely on the . . . elements and acts cited in the
count of conviction.” Id. § 3B intro. cmt. This relevant conduct can include, among other things,
the defendant’s “acts” committed “during the commission of the offense of conviction[.]”
Id. § 1B1.3(a)(1).
But this clarification leads to an order-of-operations question: Should we start with the
murder and ask if the drug conspiracy was “relevant conduct” to this violent crime? Or should we
start with the drug conspiracy and ask whether the murder was “relevant conduct” to this drug
crime? The district court simply said it could consider the “entire conspiracy” without answering
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this question. Sent. Tr., R.500, PageID 4722. And the parties’ briefing does not directly address
the question either. We see room for reasonable debate. On the one hand, the “offense of
conviction” for Rodriguez’s drug conspiracy was the conspiracy itself. U.S.S.G. § 1B1.3(a)(1).
In a similar case, then, we have relied on the drug conspiracy to determine the propriety of an
aggravating-role enhancement even after applying the murder cross-reference in § 2D1.1(d)(1).
See United States v. Anderson, 795 F.3d 613, 616–18 (6th Cir. 2015). On the other hand, Anderson
did not expressly consider this order-of-operations question. And a separate guideline (one that
Rodriguez has not cited) contains special instructions for the use of cross-references. It says that
“[i]f the offense level is determined by a reference to another guideline,” “the adjustments in
Chapter Three (Adjustments) also are determined in respect to the referenced offense guideline,
except as otherwise expressly provided.” U.S.S.G. § 1B1.5(c). One might read this language to
require courts to start with the conduct underlying the cross-referenced offense (the murder) rather
than the offense of conviction (the drug conspiracy). Cf. United States v. Scott, 70 F.4th 846, 863–
64 (5th Cir. 2023); United States v. Arellanes-Portillo, 34 F.4th 1132, 1138–40 (10th Cir. 2022).
Ultimately, though, we need not decide this unbriefed issue. Rodriguez has never claimed
that the drug conspiracy would fail to qualify as “relevant conduct” for the murder. Indeed, he
admitted orchestrating the murder “during” his “conspiracy to distribute controlled substances.”
Plea Tr., R.352, PageID 3213–14; see 18 U.S.C. § 924(c)(1)(A), (j)(1). Given Rodriguez’s failure
to dispute the point, the district court could treat the drug conspiracy as relevant conduct even if it
should have started with the murder as its frame of reference for the aggravating-role enhancement.
Rather than argue that the conspiracy was not relevant conduct for the murder, Rodriguez
instead suggests that § 3B1.1 limits our review to the “offense of conviction” and ignores “relevant
conduct.” Reply Br. 5. But he offers no reasoning to support this claim. Section 1B1.3 instructs
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courts to consider relevant conduct when making adjustments (like the aggravating-role
adjustment) “[u]nless otherwise specified.” U.S.S.G. § 1B1.3(a). And Rodriguez points to
nothing in § 3B1.1 that specifies otherwise. So we have long held that district courts may rely on
relevant conduct when deciding whether to impose an aggravating-role enhancement. See United
States v. Townsend, 396 F. App’x 239, 243 (6th Cir. 2010); United States v. Ushery, 968 F.2d 575,
581–82 (6th Cir. 1992); see also United States v. Bjorkman, 270 F.3d 482, 496 (7th Cir. 2001) (per
curiam).
We affirm.
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