United States v. Diana Gamboa ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1265
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Diana Belinda Gamboa
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of North Dakota - Fargo
____________
Submitted: October 15, 2012
Filed: December 5, 2012
____________
Before LOKEN, SMITH, and BENTON, Circuit Judges.
____________
BENTON, Circuit Judge.
Diana Belinda Gamboa pled guilty to one count of conspiring to distribute (and
to possess with intent to distribute) methamphetamine, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. The district court1 sentenced her to 120 months’
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
imprisonment. She appeals, arguing the district court erred in denying safety-valve
relief and an opportunity to withdraw her guilty plea. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
Gamboa gave information to law enforcement under a proffer agreement. After
initially pleading guilty, she moved to withdraw her plea, but then withdrew her
motion at sentencing. The district court denied a safety-valve reduction under 18
U.S.C. § 3553(f), finding that she was a “supervisor” under USSG § 3B1.1(c) and that
she gave incomplete and false information in her proffer.
Gamboa argues that the district court should have granted safety-valve relief.
“The district court’s factual findings, including its determination of a defendant’s role
in the offense, are reviewed for clear error, while its application of the guidelines to
the facts is reviewed de novo.” United States v. Gaines, 639 F.3d 423, 427-28 (8th
Cir. 2011).
Gamboa must meet five criteria for safety-valve relief. United States v.
Alvarado-Rivera, 412 F.3d 942, 944-45 (8th Cir. 2005) (en banc). At issue are the
last two requirements:
(4) [she] was not an organizer, leader, manager, or supervisor of others
in the offense . . . and was not engaged in a continuing criminal
enterprise . . . and
(5) not later than the time of the sentencing hearing, [she] . . . truthfully
provided to the Government all information and evidence [she] ha[d]
concerning the offense . . . that w[as] part of the same course of conduct
or of a common scheme or plan . . . .
18 U.S.C. § 3553(f)(4)-(5).
-2-
Gamboa contends that the district court erred in finding that she was a
supervisor of the conspiracy. See USSG § 3B1.1(c). The government must prove “by
a preponderance of the evidence that the [manager or supervisor] enhancement is
warranted.” Gaines, 639 F.3d at 427. “[M]erely distributing or selling drugs is not
sufficient for [the] . . . enhancement.” United States v. Lopez, 431 F.3d 313, 318 (8th
Cir. 2005). However, “it is only necessary that the defendant supervise or manage
one other participant.” United States v. Johnson, 619 F.3d 910, 921 (8th Cir. 2010).
The term “‘supervisor’ [is] to be construed broadly.” United States v. Richart, 662
F.3d 1037, 1045-46 (8th Cir. 2011). The sentencing court may consider, inter alia,
“the nature of participation in the commission of 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; see United States v. Vasquez, 552 F.3d 734, 737-38 (8th
Cir. 2009) (upholding enhancement where the defendant sold meth at a set price and
occasionally purchased an ingredient used to manufacture meth); Gaines, 639 F.3d
at 428-29 (upholding enhancement under similar facts); United States v. Cole, 657
F.3d 685, 687-88 (8th Cir. 2011) (upholding enhancement where the defendant
“directed and controlled [another] as part of the conspiracy” and “handled large
quantities of drugs and money”).
According to the testimony here, Gamboa directed a co-conspirator to buy
seven ounces (almost 200 grams) of meth. Cf. United States v. Vega, 676 F.3d 708,
715, 721 (8th Cir. 2012) (holding that 8.6 grams of meth was a distribution amount);
United States v. Atkinson, 85 F.3d 376, 378 (8th Cir. 1996) (“[B]y merely selling a
controlled substance to an individual [for personal use], the seller [does not] . . .
necessarily become[] the manager or supervisor of the buyer.”). A number of times,
Gamboa directed another man to sell meth and then collected the money from him.
Thus, she “control[led] another participant in [the] drug trafficking offense.” Cole,
657 F.3d at 687; Lopez, 431 F.3d at 318 (upholding enhancement where the
defendant asked his roommate “to serve as a lookout on one occasion”).
-3-
Gamboa attacks the credibility of the government’s witnesses. “Credibility
determinations . . . are virtually unreviewable on appeal . . . and [the district court
may choose] between two permissible views of the evidence . . . .” United States v.
Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008). The district court did not clearly err in
finding Gamboa was a supervisor of the conspiracy and denying safety-valve relief.2
Gamboa also claims that the district court erred in denying her an opportunity
to withdraw her guilty plea. The government contends that by withdrawing her
motion to withdraw her guilty plea, she waived her right to raise this argument on
appeal, because she “intentional[ly] relinquish[ed] . . . a known right.” United States
v. Harrison, 393 F.3d 805, 806 (8th Cir. 2005), quoting United States v. Olano, 507
U.S. 725, 733 (1993). “Only when the right is inadvertently left unasserted is the
defendant saved by Rule 52(b)’s plain error review.” United States v. Thompson,
289 F.3d 524, 527 (8th Cir.2002).
At the sentencing hearing, the court explained to Gamboa the consequences of
withdrawing her guilty plea and then recessed to allow her to consult with counsel.
After the recess, defense counsel said they had discussed the “difficult likelihood of
success” if she withdrew her guilty plea. He then stated:
She has decided at this point in time, with the Court’s permission and if
there’s no objection from the United States, that at this time she will
withdraw her motion to withdraw her guilty plea and she sits before the
Court prepared as best she can be to proceed with sentencing.
The government did not object. The court engaged in a colloquy with Gamboa on
these issues. She repeatedly affirmed her desire to withdraw her motion. Thus,
2
Alternatively, Gamboa gave incomplete and false information in her proffer
for the reasons stated by the district court. See 8th Cir. R. 47B; United States v.
Gamboa, No. 3:10-cr-49-7 at 67 (D.N.D. Jan. 19, 2012) (Resentencing Tr.).
-4-
Gamboa knowingly and voluntarily withdrew her motion and “is precluded from
arguing [her claim] on appeal.” Id.*******
The judgment of the district court is affirmed.
______________________________
-5-