United States v. Gonzalo Ponce-Hurtado , 583 F. App'x 595 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1766
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gonzalo Ponce-Hurtado
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: November 10, 2014
Filed: November 20, 2014
[Unpublished]
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Before BYE, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
Gonzalo Ponce-Hurtado pled guilty to conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court1
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The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
sentenced Ponce-Hurtado to 210 months imprisonment. Ponce-Hurtado appeals,
arguing the district court erred in the calculation of his Sentencing Guidelines range.
We affirm.
From January 2012 to May 2012, a confidential informant and an undercover
police officer purchased methamphetamine from Marceleno Pacheco-Huizar a total
of six times. In May 2012, Pacheco-Huizar arranged a meeting between the
undercover officer and his “boss,” Ponce-Hurtado. At the meeting, which involved
Ponce-Hurtado, Pacheco-Huizar, and two other co-conspirators, Ponce-Hurtado asked
the undercover officer to transport nine pounds of methamphetamine from
Pennsylvania to Arkansas. The four co-conspirators present at the meeting inspected
the undercover officer’s vehicle to determine whether it was capable of making the
trip to and from Pennsylvania. Three days after this meeting, the undercover officer
met with Pacheco-Huizar and one other co-conspirator and declined the opportunity
to travel to Pennsylvania. The undercover officer was then put on the phone with
Ponce-Hurtado who told the officer that there would be other opportunities to
transport methamphetamine from closer destinations. Following this encounter, the
undercover officer made six more methamphetamine purchases from Pacheco-Huizar.
A grand jury returned a 17-count indictment against Ponce-Hurtado and other
co-conspirators for conspiracy to distribute methamphetamine. After Ponce-Hurtado
pled guilty, the United States Probation Office prepared a presentence report (PSR),
recommending, as relevant, that Ponce-Hurtado be held accountable for 5.49
kilograms of methamphetamine mixture and that he receive a four-level upward
adjustment for being an organizer or leader. See United States Sentencing
Commission, Guidelines Manual, § 2D1.1(c)(2) (setting a base offense level of 36 for
at least 5 kilograms of methamphetamine mixture); § 3B1.1(a) (increasing base
offense level by 4 levels where defendant was an organizer or leader of a criminal
activity that involved 5 or more participants).
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On appeal, Ponce-Hurtado argues that the district court failed to make adequate
factual findings in support of the drug quantity attributed to him for sentencing
purposes. Federal Rule of Criminal Procedure 32 requires the district court “for any
disputed portion of the presentence report or other controverted matter—[to] rule on
the dispute or determine that a ruling is unnecessary either because the matter will not
affect sentencing, or because the court will not consider the matter in sentencing.”
Fed. R. Crim. P. 32(i)(3)(B). We review a district court’s drug quantity determination
for clear error. United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012), cert.
denied, 133 S. Ct. 902 (2013).
At sentencing, Ponce-Hurtado objected to the PSR’s attribution of 5.49
kilograms of methamphetamine mixture to him. Ponce-Hurtado admitted to being
responsible for 4.87 kilograms of methamphetamine mixture, which included the
quantity the undercover officer would have brought back from Pennsylvania as well
as the quantity of drugs one of the co-conspirators sold to the undercover officer from
September 2012 to November 2012. He denied, however, being the source of the
drugs that a co-conspirator supplied the undercover officer from January 2012 to June
2012, and thus objected to the PSR’s inclusion of those drug quantities in determining
his base offense level.
The district court heard testimony from a narcotics officer concerning Pacheco-
Huizar’s sale of methamphetamine to the undercover officer. According to the
officer’s testimony, Pacheco-Huizar admitted to receiving the methamphetamine he
sold in 2012 to the undercover officer and the confidential informant from another co-
conspirator, but he only made the sales after Ponce-Hurtado had given permission for
the transactions to take place. After hearing the testimony at sentencing, the district
court held, because those drug sales were in furtherance of the conspiracy to which
Ponce-Hurtado pled guilty, the drug quantities could be included in determining the
amount of methamphetamine attributable to him. Thus, the district court overruled
Ponce-Hurtado’s objection as to drug quantity and found he was responsible for at
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least 5 kilograms of methamphetamine mixture. See United States v. Plancarte-
Vazquez, 450 F.3d 848, 852 (8th Cir. 2006) (holding district court “may consider all
transactions known or reasonably foreseeable to the defendant that were made in
furtherance of the conspiracy” in determining drug quantity). The district court’s
finding that Ponce-Hurtado was responsible for at least 5 kilograms of
methamphetamine mixture was a sufficient finding for purposes of Rule 32. See
United States v. Allmon, 500 F.3d 800, 804-05 (8th Cir. 2007). In light of the record
before the district court, there was no clear error in the court’s drug quantity
determination and its overruling of Ponce-Hurtado’s objections to the drug quantity
calculation. See United States v. Davis, 471 F.3d 938, 950 (8th Cir. 2006) (“The
District Court satisfies Rule 32(i)(3)(B) if it makes a clear statement indicating it was
relying on its impression of the testimony of the witnesses at trial, coupled with its
specific rejection of the defendant’s quantity objections.” (internal quotation marks
omitted)).
Ponce-Hurtado also objected to the PSR’s four-level leader or organizer
enhancement. He argued at sentencing that the evidence presented by the government
did not show he served in a leader or organizer capacity; rather he merely relayed
information and directions he received from others. The district court rejected Ponce-
Hurtado’s argument, finding he was not a credible witness and that the preponderance
of the evidence showed that Ponce-Hurtado served as an organizer or leader.
We review for clear error the factual findings underlying a district court’s
imposition of an enhancement for a defendant’s role in the offense, United States v.
Johnson, 619 F.3d 910, 921 (8th Cir. 2010), and we broadly construe the terms
“organizer” and “leader,” as set out in section 3B1.1, United States v. De Oliveira, 623
F.3d 593, 599 (8th Cir. 2010). To determine whether a person is an organizer or
leader of a criminal activity, the court should consider a number of “factors,”
including “the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
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larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.” USSG § 3B1.1, comment. (n.4).
The district court found Ponce-Hurtado’s testimony was not credible and
determined he qualified for the enhancement in light of his activities in managing the
criminal enterprise. For instance, the undercover officer was told to contact one of the
other co-conspirators who would relay to Ponce-Hurtado the undercover officer’s
decision of whether to transport the methamphetamine. Also, co-conspirator Pacheco-
Huizar claimed that he only sold drugs to the confidential informant and the
undercover officer after Ponce-Hurtado, who Pacheco-Huizar referred to as “boss,”
had given permission for those sales to occur. Considering these factual findings
under the clearly erroneous standard of review, we find no reason to disturb the
district court’s determination that Ponce-Hurtado qualified for the four-level organizer
or leader enhancement.
Accordingly, we affirm the sentence.
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