United States v. J. Rodriguez-Medrano , 119 F. App'x 25 ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-2022
    ___________
    United States of America,            *
    *
    Appellee,                * Appeal from the United States
    * District Court for the
    v.                             * District of Minnesota.
    *
    Jose Enrique Rodriguez-Medrano,      * [UNPUBLISHED]
    *
    Appellant.               *
    ___________
    Submitted: December 13, 2004
    Filed: December 30, 2004
    ___________
    Before BYE, HANSEN, and GRUENDER, Circuit Judges.
    ___________
    PER CURIAM.
    Jose E. Rodriguez-Medrano pleaded guilty to one count of conspiracy to
    distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C.
    §§ 841(a)(1), (b)(1)(A) & 846. The district court1 sentenced Rodriguez-Medrano to
    eighty-seven months imprisonment, a sentence which reflected a two-level upward
    enhancement, pursuant to U.S.S.G. § 3B1.4, for use of a minor in the offense. On
    appeal, Rodriguez-Medrano contends the district court erred in imposing the upward
    1
    The Honorable Mark W. Bennett, United States District Judge for the
    Northern District of Iowa.
    enhancement because his conduct does not meet the definition of “use” for purposes
    of § 3B1.4.
    I
    After earlier spotting a man suspiciously watching him from a Super 8 Motel,
    a deputy county sheriff obtained a drug-sniffing canine to conduct an exterior drug
    sniff of vehicles located in the motel parking lot. The canine detected the odor of
    illegal drugs in two vans. The deputy sheriff then applied for and obtained search
    warrants for the vans. Upon searching the vans, the sheriff’s department found
    approximately 820 pounds of marijuana in a large plastic tote and five large duffel
    bags. The deputies arrested the three adults in the motel rooms associated with the
    vans. The three adults were traveling with their five children ranging in age from
    four to seven years old.
    Two of the adults (Saenz and Cortez) cooperated with authorities by giving the
    name of Rodriguez-Medrano as the name of the leader or organizer of the drug ring.
    On several occasions, Rodriguez-Medrano paid them to smuggle a vehicle loaded
    with drugs from Mexico to various locations in the United States. Rodriguez-
    Medrano suggested they put groceries in the trunks of the vehicles and bring their
    children along to make them look more like a family, less suspect.
    At Rodriguez-Medrano’s sentencing, the district court applied a two-level
    enhancement for use of a minor under § 3B1.4. In support of the enhancement, the
    district court made the following finding of fact:
    My finding of fact is that the defendant made a request of the
    codefendants to bring their children. It was ultimately the decision of
    the codefendants, meaning Saenz and Cortez, to bring the kids. But
    under this guideline that’s sufficient for the enhancement. . . I don’t find
    that he – that it was a condition precedent to Cortez and Saenz’s
    -2-
    involvment. He didn’t make it contingent on that. He didn’t put
    pressure on them to bring the kids, but he suggested it might help devoid
    – avoid detection.
    Because the district court found he merely requested the codefendants bring their
    children and it was ultimately the decision of each codefendant to bring their children,
    Rodriguez-Medrano claims the application of the two-level use of minor
    enhancement was erroneous. We disagree.
    II
    “A district court’s factual determination that leads to the application of a
    sentence enhancement is reviewed for clear error.” United States v. Fladten, 
    230 F.3d 1083
    , 1086 (8th Cir. 2000). We review de novo the applicability of a guideline to the
    facts. United States v. Guy, 
    349 F.3d 655
    , 658 (8th Cir. 2003).
    Section 3B1.4 provides for a two-level enhancement to a defendant’s guideline
    “if the defendant used or attempted to use a person less than eighteen years of age to
    commit the offense or assist in avoiding detection of, or apprehension for, the
    offense.” U.S.S.G. § 3B1.4. The phrase “‘used or attempted to use’ includes
    directing, commanding, encouraging, intimidating, counseling, training, procuring,
    recruiting, or soliciting.” 
    Id. at app.
    n.1. Active involvement of a minor is not
    required; the focus is on the defendant’s acts. United States v.Wingate, 
    369 F.3d 1028
    , 1032 (8th Cir. 2004).
    Rodriguez-Medrano claims his request is comparable to mere awareness of a
    minor’s involvement, which does not constitute “use” for purposes of the
    enhancement. United States v. Butler, 
    207 F.3d 839
    , 847 (6th Cir. 2000) (finding
    § 3B1.4 requires more than mere awareness of a minor’s involvement, it requires an
    affirmative act on the part of the defendant). However, contrary to Rodriguez-
    Medrano’s claim, his conduct involved more than mere awareness of a minor’s
    -3-
    involvement. Rodriguez-Medrano took the affirmative step of requesting that his
    subordinate codefendants bring their children to make them appear less suspicious.
    In essence, by requesting his subordinates bring their children, Rodriguez-Medrano
    encouraged them to use their children as props in a scheme to avoid detection. The
    subordinates testified they took his request very seriously. Even though the decision
    to bring their children was up to each individual defendant, without Rodriguez-
    Medrano’s request it was unlikely his subordinates would have endangered their
    children by bringing them on drug smuggling missions. Thus, § 3B1.4
    unambiguously applies to Rodriguez-Medrano’s conduct described herein.
    III
    We affirm the judgment of the district court.
    ______________________________
    -4-
    

Document Info

Docket Number: 04-2022

Citation Numbers: 119 F. App'x 25

Judges: Bye, Hansen, Gruender

Filed Date: 12/30/2004

Precedential Status: Non-Precedential

Modified Date: 11/5/2024