United States v. Saul Ruelas-Valdovinos , 747 F.3d 941 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2685
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAUL RUELAS-VALDOVINOS,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 11-CR-30046-02-MJR — Michael J. Reagan, Judge.
ARGUED MARCH 5, 2014 — DECIDED APRIL 7, 2014
Before EASTERBROOK, MANION, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. For nearly three years, appellant
Saul Ruelas-Valdovinos supplied most of the cocaine that his
22 co-conspirators sold in southern Illinois and Missouri. He
pleaded guilty to conspiring to distribute cocaine. When the
district court calculated the sentencing guideline range, it
applied a three-level upward adjustment for Ruelas-
Valdovinos’s role as a supervisor or manager in the conspiracy.
2 No. 12-2685
See U.S.S.G. § 3B1.1(b). Ruelas-Valdovinos challenges the
adjustment on appeal, arguing that he supplied cocaine but did
not supervise or manage anyone. We affirm.
From 2008 to 2011, Ruelas-Valdovinos obtained cocaine
imported from Mexico and delivered it to a house in Chicago
owned by Ivan Vazquez-Gonzalez. At Vazquez-Gonzalez’s
direction, other co-conspirators would pick up the cocaine,
drive it south, sell it, and return to Chicago with the proceeds
to pay Ruelas-Valdovinos. In 2010 Vazquez-Gonzalez prepared
to go to Mexico for six months. He instructed Luis Hernandez-
Barahono, a co-conspirator who primarily transported and
distributed the cocaine, to work directly with Ruelas-
Valdovinos.
Around that time law enforcement acted on a tip and
stopped Hernandez-Barahono and another co-conspirator for
a supposed traffic violation. The officers searched the vehicle
and seized $205,000 in cash. Two later traffic stops also
involving Hernandez-Barahono—one in July, the other in
September—yielded $85,000 and $91,000. Hernandez-Barahono
reported what happened to both Ruelas-Valdovinos and
Vazquez-Gonzalez.
Ruelas-Valdovinos, however, suspected that the reported
seizures were a ruse hatched by Hernandez-Barahono and
Vazquez-Gonzalez to keep cash that he should have received.
He questioned both of them in phone conversations. He
threatened—if they were stealing from him—to kill them, to
“close down the company there,” or to replace some co-
conspirators. Despite his suspicions, though, Ruelas-
No. 12-2685 3
Valdovinos gave Vazquez-Gonzalez the money he needed to
return to the United States in November 2010.
A grand jury in the Southern District of Illinois returned a
28-count indictment against 23 co-conspirators, all of whom
were arrested in 2011. Ruelas-Valdovinos pleaded guilty to
conspiring to distribute cocaine and to possess cocaine with
intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). The
presentence report recommended a three-level upward
adjustment to the Sentencing Guideline calculation on the
ground that Ruelas-Valdovinos was a supervisor or manager.
See U.S.S.G. § 3B1.1(b). Ruelas-Valdovinos objected, both in
writing and at the sentencing hearing, that he was just a
cocaine supplier who reported to his own supplier and did not
supervise or manage anyone. The district judge rejected this
argument, finding that Ruelas-Valdovinos had exercised
control and “played [a] coordinating or organizing role.”
The judge based his finding on transcripts of thirteen phone
calls between Ruelas-Valdovinos and others (mostly
Hernandez-Barahono); on Hernandez-Barahono’s testimony
that Ruelas-Valdovinos gave him orders during Vazquez-
Gonzalez’s absence; and on Ruelas-Valdovinos’s threats to
retaliate if his co-conspirators were stealing from him. The
judge also applied a two-level upward adjustment for making
credible threats of violence. See U.S.S.G. § 2D1.1(b)(2). After
calculating a guideline imprisonment range of 235 to 293
months, the judge found that the multiple credible threats of
violence warranted more than a two-point upward adjustment,
so he imposed an above-guideline sentence of 327 months.
4 No. 12-2685
Ruelas-Valdovinos’s sole contention on appeal is that the
upward adjustment under § 3B1.1 was an error. In his view,
the evidence showed only that he supplied cocaine, not that he
had control over anyone. He points out that he had to pay his
own supplier, who had fronted him the cocaine, and he insists
that the phone conversations with Hernandez-Barahono and
the threats he made to his co-conspirators were his way of
checking on them and urging them to pay quickly.
Supplying drugs, by itself, does not warrant an upward
adjustment under § 3B1.1. See United States v. Weaver, 716 F.3d
439, 444–45 (7th Cir. 2013); United States v. Vargas, 16 F.3d 155,
160 (7th Cir. 1994); United States v. Brown, 944 F.2d 1377,
1385–86 (7th Cir. 1991). Even though a supplier’s relationship
with co-conspirators may provide an opportunity to exercise
control, see Brown, 944 F.2d at 1385–86, § 3B1.1 applies only if
the supplier actually exercised control. See Weaver, 716 F.3d at
443–44; Vargas, 16 F.3d at 160. The upward adjustment under
§ 3B1.1 was properly applied if Ruelas-Valdovinos “help[ed]
manage or supervise the criminal scheme.” United States v.
Grigsby, 692 F.3d 778, 790 (7th Cir. 2012); see also United
States v. Figueroa, 682 F.3d 694, 697 (7th Cir. 2012) (“A
supervisor, a manager, tells people what to do and determines
whether they’ve done it.”). We review de novo the district
court’s legal interpretation and application of the sentencing
guidelines, but review factual findings only for clear error.
United States v. Medina, 695 F.3d 702, 704 (7th Cir. 2012); United
States v. Tichenor, 683 F.3d 358, 362 (7th Cir. 2012).
Ruelas-Valdovinos’s argument that he did not exercise
control is unpersuasive for two reasons. First, the district judge
interpreted the phone calls with co-conspirators and various
No. 12-2685 5
threats against them as a form of supervision, going beyond
merely supplying cocaine and urging prompt payment. That
was a reasonable interpretation of the evidence. See United
States v. Bennett, 708 F.3d 879, 892 (7th Cir. 2013) (“Although
most supervisors do not terrorize their subordinates (at least
not physically), administering sanctions for poor work quality
is a quintessential supervisory task.”); Weaver, 716 F.3d at 444
(“[T]he ability to coerce underlings is a key indicator of control
or authority suggestive of managerial or supervisory
responsibility in the criminal enterprise.”).
Second, the record as a whole—including facts in the
presentence report that Ruelas-Valdovinos did not dispute, see
United States v. Hawkins, 480 F.3d 476, 477–78 (7th Cir. 2007);
United States v. Mustread, 42 F.3d 1097, 1101–02 (7th Cir.
1994)—bolsters the conclusion that Ruelas-Valdovinos
exercised control. Besides supplying the cocaine, following up
with his co-conspirators, and threatening to kill or replace
individual conspirators, he provided a van for transporting
cocaine and even showed a co-conspirator the trap
compartment in the van for hiding drugs. He also reported that
he handled Vazquez-Gonzalez’s work while Vazquez-
Gonzalez was in Mexico; instructed a co-conspirator to open
up Vazquez-Gonzalez’s house when Hernandez-Barahono
planned to be in Chicago; recruited a co-conspirator to join him
if he decided to “visit” Hernandez-Barahono; and paid for
Vazquez-Gonzalez’s return to the United States. The district
judge, who was intimately familiar with the conspiracy’s facts
from presiding over the proceedings for all 23 co-defendants,
did not err by finding that Ruelas-Valdovinos was a supervisor
or manager.
6 No. 12-2685
Moreover, even if we might have found an error in
applying § 3B1.1, we would deem it harmless. The judge
indicated that if the upward adjustment did not apply, he
would have exercised his sentencing discretion to account for
Ruelas-Valdovinos’s role in the offense by applying a
“departure of three levels” under Application Note 2 to
§ 3B1.1. The net effect on the sentence would have been the
same. See, e.g., United States v. Rabiu, 721 F.3d 467, 470–71 (7th
Cir. 2013) (finding guideline error harmless where district
judge made similar statement).
AFFIRMED.