United States v. Silvia Duhart-Orea , 488 F. App'x 165 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1009
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Silvia Susana Duhart-Orea
lllllllllllllllllllll Defendant - Appellant
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No. 12-1124
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Allan Roustand-Rolon
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: September 17, 2012
Filed: September 25, 2012
[Unpublished]
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Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
After a government investigation uncovered a large counterfeit identification
scheme, both Silvia Duhart-Orea and Allan Roustand-Rolon pled guilty to conspiracy
to transfer false identification documents in violation of 18 U.S.C. § 371, and Duhart-
Orea also pled guilty to the actual transfer of the documents in violation of 18 U.S.C.
§ 1028(a)(2). The district court1 sentenced Duhart-Orea to 24 months and Roustand-
Rolon to 57 months imprisonment, the low end of the guideline range for each
defendant. In a consolidated appeal, both Duhart-Orea and Roustand-Rolon argue
that the district court erred in applying enhancements, and Duhart-Orea contends that
her sentence is substantively unreasonable. We affirm.
In December 2010 a confidential informant and an undercover agent executed
separate controlled purchases of counterfeit identification documents from Duhart-
Orea in Omaha, Nebraska. After her arrest Duhart-Orea told law enforcement that
she had received the identity documents from Jorge Fernandez-Rouston (Gordo). She
estimated that she had sold one to three sets of counterfeit identification documents
at Gordo's direction each day throughout the past year.
Duhart-Orea alerted law enforcement of three additional coconspirators,
including Gordo's assistant Roustand-Rolon. One of the coconspirators reported that
1
The Honorable Lyle E. Strom, United States District Court Judge for the
District of Nebraska.
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Gordo and Roustand-Rolon had been exclusively responsible for manufacturing the
counterfeit documents. In a search of the premises where the documents had been
produced, agents recovered over 20 printer cartridges that had been used to create
approximately 2,000 identity documents. Duhart-Orea and Roustand-Rolon
subsequently pled guilty to conspiracy to transfer false identification documents, and
Duhart-Orea also pled guilty to the underlying substantive charge.
The presentence investigation report (PSR) calculated Duhart-Orea's guideline
range to be 24 to 30 months for each count. It recommended a nine level
enhancement for the transfer of more than 100 documents, see U.S.S.G. §
2L2.1(b)(2)(C), and a two level reduction for acceptance of responsibility, see
U.S.S.G. § 3E1.1(a). At Duhart-Orea's sentencing a case agent testified that she had
admitted to selling between one and three sets of identity documents daily for a year.
The government urged the district court to impose the nine level enhancement for
transferring more than 100 sets of documents because "if you do the simple math"
Duhart-Orea had transferred at least three times that many. Since Duhart-Orea's
admission supported the enhancement, the district court adopted the PSR's guideline
calculation.
The government argued that Duhart-Orea should be sentenced at the high end
of the guideline range because the conspiracy involved so many documents.
Duhart-Orea urged the district court to vary downward in light of her remorse,
cooperation with authorities, and lack of criminal history. After discussing the scope
of the conspiracy, Duhart-Orea's substantial involvement, and the factors set out in
18 U.S.C. § 3553(a), the district court imposed concurrent sentences of 24 months for
each count to which Duhart-Orea had pled.
Roustand-Rolon's PSR calculated his guideline range to be 57 to 60 months.
It recommended a nine level enhancement for the transfer of more than 100
documents, see U.S.S.G. § 2L2.1(b)(2)(C), a three level enhancement for his role as
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a manager or supervisor in a conspiracy with five or more participants, see U.S.S.G.
§ 3B1.1(b), and a two level reduction for acceptance of responsibility, see U.S.S.G.
§ 3E1.1(a). The maximum sentence under the guideline calculation would have been
71 months, but it was reduced to 60 months since the conspiracy charge carried a five
year maximum.
At Roustand-Rolon's sentencing the government argued that the district court
should apply a three level enhancement for his supervisory role because Roustand-
Rolon had been Gordo's assistant and had manufactured the false documents.
Roustand-Rolon objected, arguing that the nature of Gordo's leadership showed that
he was not a manager or supervisor. After discussing the participants' relative roles
in the conspiracy, the district court determined that the evidence supported the
manager or supervisor enhancement and sentenced Roustand-Rolon to 57 months.
Duhart-Orea and Roustand-Rolon appeal. Duhart-Orea argues that the
enhancement for transferring more than 100 sets of documents was unsupported by
evidence and that her sentence is substantively unreasonable. Roustand-Rolon
contends that there was insufficient evidence to support the enhancement for his role
as a manager or supervisor.
This court reviews sentences first for procedural error and then for substantive
reasonableness. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc). We review substantive reasonableness under a deferential abuse of discretion
standard, Gall v. United States, 552 U.S. 38, 41 (2007), and presume that a sentence
within the guideline range is reasonable. United States v. Keating, 579 F.3d 891, 894
(8th Cir. 2009). We review a district court's findings of fact for clear error. United
States v. Hatchett, 622 F.3d 984, 986 (8th Cir. 2010) (citation omitted). A finding of
fact, including the defendant's role in a conspiracy, is not clearly erroneous if it is
based on a "permissible view of the evidence." United States v. Moreno, 679 F.3d
1003, 1004 (8th Cir. 2012) (per curiam) (quotation omitted).
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Duhart-Orea first argues that there was insufficient evidence to support the
application of an enhancement under U.S.S.G. § 2L2.1(b)(2)(C) for transferring more
than 100 sets of documents. We disagree. In Duhart-Orea's post arrest interview she
stated that she "sold an average of about 1-3 sets of documents per day for the past
year." This statement indicates that well over 100 sets of documents were involved
in the conspiracy and sufficiently supports the district court's application of the nine
level enhancement.
Duhart-Orea also argues that her sentence is substantively unreasonable
because she had a minor role in the conspiracy. This argument was properly rejected
by the district court, which noted that "this was a fairly substantial conspiracy
involving a lot of documents" and Duhart-Orea had been "doing this on a daily basis
for a year, maybe three years." We conclude that the district court did not abuse its
discretion in imposing a sentence at the bottom of the guideline range. See United
States v. Phelps, 536 F.3d 862, 869 (8th Cir. 2008).
Roustand-Rolon contends that the district court erred in applying the three
level enhancement for his manager or supervisor role because there was no evidence
he "controlled or managed" his coconspirators. This court does not require "evidence
of control or decision making authority over one or more accomplices . . . for a
manager/supervisor enhancement." United States v. Gaines, 639 F.3d 423, 429 n.4
(8th Cir. 2011). Rather, "the exercise of 'management responsibility over the
property, assets, or activities of a criminal organization' may warrant an
enhancement." Moreno, 679 F.3d at 1004 (citing U.S.S.G. § 3B1.1 cmt. n.2). Since
the evidence at sentencing showed that Roustand-Rolon exercised control over the
production of false documents and acted as Gordo's assistant, the district court's
application of the three level enhancement was not clearly erroneous.
Accordingly, we affirm the judgments.
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