United States v. John Doe , 778 F.3d 814 ( 2015 )

FILED
FOR PUBLICATION FEB 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10385
Plaintiff - Appellee, D.C. No. 1:08-cr-00254-LJO-1
Eastern District of California,
v. Fresno
JOHN DOE,
ORDER
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted September 10, 2014
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
The opinion filed February 17, 2015 is hereby withdrawn. An opinion will
be filed in its place.
Counsel Page
Carolyn Wiggin (argued), Assistant Federal Defender; Heather E. Williams,
Federal Defender, Sacramento, California, for Defendant-Appellant.
Kathleen Servatius (argued), Assistant United States Attorney; Benjamin B.
Wagner, United States Attorney; Camil A. Skipper, Appellate Chief, Fresno,
California, for Plaintiff-Appellee.
FILED
FOR PUBLICATION FEB 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10385
Plaintiff - Appellee, D.C. No. 1:08-cr-00254-LJO-1
v.
OPINION
JOHN DOE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted September 10, 2014
San Francisco, California
Before: BEA, IKUTA, and HURWITZ, Circuit Judges.
Opinion by Judge IKUTA, Circuit Judge:
Defendant John Doe1 challenges several rulings of the district court, made
following our remand of his previous appeal. We hold that the district court did
1
We grant the defendant’s unopposed motion for use of a pseudonym in
this opinion because this is an “unusual case” where the defendant may face “a risk
of serious bodily harm if his role on behalf of the Government were disclosed to
other inmates.” United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980).
not clearly err in determining that Doe was an “organizer” for purposes of
§ 3B1.1(c) of the Sentencing Guidelines, where his role was “coordinating the
activities of the other participants to the extent necessary to complete the
transaction.” See United States v. Varela, 993 F.2d 686, 692 (9th Cir. 1993). We
also hold that the imposition of the § 3B1.1(c) enhancement made Doe ineligible
for the “safety valve” reduction, 18 U.S.C. § 3553(f)(4), and affirm the district
court’s other rulings.
I
We recounted the factual and procedural history of this case in our prior
opinion, United States v. Doe, 705 F.3d 1134 (9th Cir. 2013), and so provide only
the information necessary for our decision here. We include the additional facts
the district court found when it resolved the parties’ sentencing-related factual
disputes as required by Doe. See id. at 1156.
In early 2008, before engaging in the criminal activities for which he was
convicted, Doe contacted the Federal Bureau of Investigation (FBI), and asked if
he could provide information about illegal drug activities in exchange for
immigration assistance for his family. Id. at 1140. At a meeting with an agent,
Doe provided the names and phone numbers of individuals involved in drug
trafficking. Id. “The agent explained that Doe was ‘putting the cart before the
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horse,’ and while such requests were sometimes granted, this occurred only after
long and successful records of cooperation with the FBI that resulted in
prosecutions and convictions.” Id. Doe repeated his request for immigration
assistance at a second meeting with an FBI agent, but the agent told Doe that he
had not yet provided the kinds of specific information that could eventually make
him eligible for such assistance. “At no point did the agent authorize Doe to
engage in illegal activity either on his own behalf or on the FBI’s behalf.” Id.
Shortly after these contacts, Doe participated in one unsuccessful and two
completed drug transactions. Two confidential informants (Joe Reyna, nicknamed
“Gordo,” and Juan Duran, nicknamed “Pelón”) and one undercover police
detective (Detective Valdes of the Fresno Police Department) posed as the three
buyers in each transaction.
Gordo obtained Doe’s contact information from the subject of a different
police investigation. When Gordo first called Doe, Doe confirmed that he would
be able to make the arrangements to secure cocaine for Gordo and his co-buyers.
He told Gordo to meet him in Los Angeles to become better acquainted and further
discuss the transaction. A few days later, Gordo and Pelón drove to Los Angeles
and attended a meeting with Doe. During the meeting, the buyers told Doe their
specifications regarding the quantity and type of drugs they wanted to purchase (20
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kilograms of cocaine), and Doe gave them the pricing information ($19,000 per
kilogram). Doe confirmed that he had the contacts necessary for obtaining that
quantity of cocaine. Doe then took Gordo and Pelón to another location to sample
the type of cocaine that would be available for purchase. The two purported
buyers then took the sample back to Detective Valdes.
Shortly thereafter, Doe informed Gordo that a trustworthy supplier now had
cocaine available in Los Angeles. Gordo, Pelón, and Detective Valdes arrived in
Los Angeles and met with Doe. Notwithstanding Doe’s assurances, and repeated
calls to hurry the suppliers, the cocaine did not arrive. The buyers left empty
handed.
Doe contacted Gordo a few days later with the information that although
cocaine was not immediately available, Doe could supply methamphetamine if
Gordo and his co-buyers were interested. Gordo agreed to purchase 12 pounds of
methamphetamine. Doe gave him the price, $17,900 per pound, as well as the
contact information for Jesus Fletes, who was the contact person taking delivery of
the methamphetamine. Gordo and Pelón met with Fletes to arrange logistical
details. After this meeting, Gordo called Doe to express his doubts about Fletes,
but Doe assured him that Fletes could deliver the methamphetamine.
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Gordo and Pelón then went to Fletes’s establishment to consummate the
transaction, which took place under law enforcement surveillance. Although Doe
did not accompany them, he communicated with Gordo frequently during the
transaction. After Fletes showed Gordo and Pelón the methamphetamine, law
enforcement personnel arrested Fletes. Doe called Fletes shortly after Fletes’s
arrest to confirm the deal had succeeded, and Fletes, now cooperating with the
police, assured him it had. A few days later, Fletes called Doe and the two
discussed how they would divide the profits.
Following this transaction, Doe told Gordo that the 20 kilograms of cocaine
he had requested was available, and Doe could sell it to Gordo and his cohorts in
two 10 kilogram transactions. Doe asked Gordo and his co-buyers to come to Los
Angeles for the sale. Two other individuals involved in drug trafficking, Hector
Rodriguez and Jorge Bautista, were responsible for bringing the cocaine to the
location where the deal would be completed. On the day of the sale, Doe kept in
constant contact with Rodriguez and Bautista. He also spoke to Detective Valdes,
who was still undercover as a buyer. Valdez suggested that Doe place the drugs in
a car, which Doe could then exchange for a second car in which Valdes would
place the money. Later in the day, Doe met with Detective Valdes, Gordo, and
Pelón to verify that they had placed sufficient funds to purchase the cocaine in their
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vehicle. Doe and Pelón then drove to meet Rodriguez and Bautista, while Gordo
remained with Detective Valdes. Once Pelón confirmed that the cocaine was at the
appointed location, law enforcement officials arrested Doe, Bautista, and
Rodriguez. Doe immediately told Detective Valdes he was an informant working
with the FBI. Doe, 705 F.3d at 1141. But when Detective Valdes asked him if he
was working with the FBI on this specific case, Doe said “no.” Id.
Doe was indicted on August 7, 2008 for aiding and abetting each of the
following offenses: conspiracy to distribute methamphetamine, conspiracy to
distribute cocaine, possession of methamphetamine with intent to distribute, and
possession of cocaine with intent to distribute. At trial, Doe relied on a “public
authority defense,” namely, that he had engaged in the criminal acts with the
approval of the FBI for the purpose of providing the FBI with information
regarding criminal activities. Id. After a four-day trial and jury deliberations, the
jury returned guilty verdicts on all counts. Id. at 1141–42.
In his first appeal, Doe raised two claims relevant here. See Doe, 705 F.3d
at 1149–57. First, he argued that the district court had erred in denying two of his
discovery requests. Id. at 1150. Doe requested:
5. Any and all records or reports which document any and all
telephone numbers, license plate numbers, or individuals, provided or
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identified by [Doe] to FBI [agents,] as being associated, involved, or
related to criminal activity; [“Request Five”]
6. Any and all records, reports or calendars which document the date of any
meeting or communication, or planned meeting or communication between
[Doe] and FBI [agents]; [“Request Six”]
Id. at 1141 (alterations in original). Before trial, the district court rejected Doe’s
requests on the ground that they were so overbroad that it was not possible to
determine how the information sought was material to preparing a defense. Id at
1150 (citing Fed. R. Crim. P. 16(a)(1)(E)(i)). Doe explained that he sought this
information to support his public authority defense, which was based on evidence
that he met with FBI agents twice prior to his arrest, and provided them with at
least one name and telephone number that he claimed related to a drug trafficker.
Id. at 1140, 1150–51.
Doe also claimed that the government violated its obligation to disclose
material exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), by
failing to provide the information identified in the discovery requests. Doe, 705
F.3d at 1152.
Doe held that the district court abused its discretion in denying the requests,
which we deemed to be narrow and pointed. Id. at 1150–51. We stated that the
requests were “well tailored” in that they explained the specific information sought
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and identified the types of documents likely to contain that information. Id. at
1150. We also held that the requests related to a specific time frame: the periods
during which the FBI met with or spoke to Doe. Id. We therefore vacated Doe’s
conviction and remanded to the district court to address the discovery and Brady
issues. Id. at 1151–52. We directed the district court to grant Doe’s motion for a
new trial if the government’s responsive documents contained information that
might have altered the verdict. Id. at 1152–53. If the new information would not
have had such an effect, the district court was to reinstate the conviction. Id.
Second, Doe claimed that the district court made a number of procedural
errors at sentencing. Among other things, the court failed to address Doe’s
argument that he was not an “organizer” for purposes of § 3B1.1(c), id. at 1143,
which requires the imposition of a two-point sentence enhancement for a defendant
who “was an organizer, leader, manager, or supervisor” in a specified criminal
activity, U.S.S.G. § 3B1.1(c). We agreed, and rejected the government’s argument
that the district court had implicitly rejected Doe’s objection. Doe, 705 F.3d at
1155. First, we held that an “implicit ruling was insufficient to comply with this
court’s interpretation of Rule 32” of the Federal Rules of Criminal Procedure, id. at
1154–55; rather, a court must explicitly resolve objections and factual disputes
relating to sentencing enhancements, id at 1155. Moreover, we stated that the
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inadequacy of an implicit ruling in this case “is even more pronounced due to the
weak support for any implicit findings the court may have made,” and ruled that
“[i]f this enhancement is to be imposed, the judge must make more explicit
findings” on remand to resolve the factual disputes. Id. at 1156; see also id. at
1155 n.12. After finding in Doe’s favor on his other claims of procedural error, we
vacated the sentence and remanded for further proceedings. Id. at 1156–57.
On remand, the government responded to the discovery requests by
submitting additional declarations of two FBI agents who met with Doe. One
agent’s declaration stated he had met Doe only once, and attached a calendar entry
and an email referring to an April 15 meeting with Doe. The other agent’s
declaration stated that he “conducted a global search of the electronic records
database” of the FBI, that the FBI database “contains all reports that would be
responsive” to the requests, and that the search performed “encompassed the
requested information.” Based on this search, the second agent stated that the
government had already given Doe all responsive documents, including his notes
of and report on his meetings with Doe. The district court rejected Doe’s argument
that the government should have searched additional databases to see if they
contained any references, during any time period, to the same phone numbers,
license plate numbers, or names Doe had given the government. It concluded that
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all information responsive to the discovery requests had been produced. Because
nothing in the response to the discovery requests would have affected the jury’s
verdict, the district court reinstated the conviction.
At Doe’s re-sentencing, the district court imposed a two-level enhancement
under § 3B1.1(c) for being an organizer. The district court responded to Doe’s
mandate that it resolve the objections and factual disputes affecting the organizer
enhancement; it heard the parties’ arguments and then verified and incorporated as
part of its factual findings a portion of the fact section of the government’s
sentencing memorandum. In addition, the district court made a number of findings
supporting its determination that Doe was the “nexus” who “connected all the
participants together.” The district court noted that Doe not only introduced the
parties, but also “actively participated at many levels, doing many other things.”
Doe “participated in specific and repetitive arrangements for distribution of
methamphetamine and cocaine in some course at some level” and “directly or
indirectly, negotiated the price of the methamphetamine.” Based on these findings,
the district court concluded that Doe qualified as an “organizer” and overruled his
objection to the imposition of the organizer enhancement. The district court also
ruled that Doe did not merit a safety valve reduction and denied a reduction for
acceptance of responsibility.
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II
In this second appeal, Doe claims the district court erred in concluding that
one of the two discovery requests, Request Five, was satisfied by the documents
the government produced. He also claims that the district court made two
erroneous decisions under the Sentencing Guidelines by imposing the § 3B1.1(c)
enhancement for being an organizer and by denying him a sentence reduction for
acceptance of responsibility under § 3E1.1. Finally, he claims that the district
court erred by denying him a reduction under the safety valve provision, pursuant
to 18 U.S.C. § 3553(f)(4).
We review discovery orders for an abuse of discretion. Doe, 705 F.3d at
1149–50. We first determine “whether the district court identified the correct legal
standard” and then “determine whether the district court’s findings of fact, and its
application of those findings of fact to the correct legal standard, were illogical,
implausible, or without support in inferences that may be drawn from facts in the
record.” United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
We review alleged Brady violations de novo. United States v. Stever, 603 F.3d
747, 752 (9th Cir. 2010).
We review the district court’s interpretation of the Sentencing Guidelines de
novo, United States v. Swank, 676 F.3d 919, 921 (9th Cir. 2012), and review its
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factual findings in sentencing for clear error, United States v. Bonilla-Guizar, 729
F.3d 1179, 1186 (9th Cir. 2013) (citing United States v. Kimbrew, 406 F.3d 1149,
1151 (9th Cir. 2005)). The district court’s determination that a defendant is an
“organizer” for purposes of the § 3B1.1(c) enhancement is a question of fact
reviewed for clear error. United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th
Cir. 1998). “A district court’s decision about whether a defendant has accepted
responsibility is a factual determination reviewed for clear error.” United States v.
Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010) (quoting United States v. Cantrell, 433
F.3d 1269, 1284 (9th Cir.2006)).2 We consider each of Doe’s claims in turn.
A
We first consider Doe’s claim that the district court abused its discretion in
holding that the government’s disclosures satisfied Request Five. Doe argues that
the language of Request Five, asking for “[a]ny and all records or reports which
document any and all telephone numbers, license plates numbers, or individuals,
2
The government notes our intracircuit split on whether we review a district
court’s application of the Sentencing Guidelines to the facts de novo or for an
abuse of discretion. See Swank, 676 F.3d at 921. We need not reach this issue,
however. Doe raises only two Sentencing Guidelines issues: the district court’s
determination that he is an “organizer” for purposes of the § 3B1.1(c)
enhancement, and its holding that he did not accept responsibility for purposes of
§ 3E1.1. Our cases consistently apply the clear error standard of review to each of
these objections.
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provided or identified” by Doe to the government, broadly requests all records in
the government’s possession that mention those telephone numbers, license plate
numbers, or names of individuals, regardless whether the records are related to
Doe’s interaction with the FBI. Doe argues that if he could prove he provided
information that relates to actual criminals, it would demonstrate that he genuinely
intended to help the FBI.
The district court’s holding is consistent with the most natural reading of
Request Five. Request Five asks for reports regarding Doe’s conveyance of
specified information to the government, not reports unrelated to Doe’s alleged
assistance that happen to contain the same information. This natural interpretation
of the discovery request is also consistent with our analysis in Doe, where we
stated that the requests were narrowly tailored and limited to documents created
within the time frame during which Doe met with the FBI agents. Doe, 705 F.3d at
1150. Under Doe’s interpretation, by contrast, the government would have to
search for records spanning an indefinite period of time. Because the district
court’s narrower reading of the requests is not “illogical, implausible, or without
support in inferences that may be drawn from facts in the record,” see Hinkson,
585 F.3d at 1251, the district court did not err in holding there was no discovery
violation.
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Doe also argues that because the government did not respond fully to
Request Five, it failed to fulfill its Brady obligations. Doe has not shown that he
has been prejudiced by the government’s failure to disclose documents responsive
to his broader reading. See Doe, 705 F.3d at 1152–53. Even if the government
produced documents showing that the telephone numbers, license plates, or names
provided by Doe belonged to real criminals, such evidence would not materially
bolster Doe’s defense that he committed criminal acts as an FBI informant or
undermine confidence in the verdict. We therefore also affirm the district court’s
rejection of Doe’s Brady claim.
B
We next consider Doe’s challenge to the two-level enhancement under
§ 3B1.1(c).
Chapter 3, Part B of the Sentencing Guidelines “provides adjustments to the
offense level based upon the role the defendant played in committing the offense.”
U.S.S.G. § 3B, introductory cmt. Section 3B1.1 provides for enhancements of a
defendant’s offense level if the defendant played an aggravating role in the
criminal activity. It states, in full:
§3B1.1. Aggravating Role
Based on the defendant’s role in the offense, increase the offense level as
follows:
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(a) If the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive, increase by 4
levels.
(b) If the defendant was a manager or supervisor (but not an organizer or
leader) and the criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in
any criminal activity other than described in (a) or (b), increase by 2 levels.
The plain text of §§ 3B1.1(a) and (b) requires only that the participants be
“involved” in the criminal activity the defendant organizes, leads, manages, or
supervises. On its face, § 3B1.1(c) does not require even the involvement of a
participant. Nevertheless, under our precedent, see Varela, 993 F.2d at 692, and
the relevant application note, the defendant must have “been the organizer, leader,
manager, or supervisor of one or more other participants,” § 3B1.1, cmt. n.2
(emphasis added). The term “participant” is defined to mean someone “who is
criminally responsible for the commission of the offense,” which does not include
undercover officers or informants. § 3B1.1, cmt. n.1.
In light of this requirement, we have held that in order for a defendant to
qualify as an “organizer” for purposes of § 3B1.1(c), there must be “evidence that
the defendant [1] exercised some control over others involved in the commission
of the offense or [2] was responsible for organizing others for the purpose of
carrying out the crime.” United States v. Whitney, 673 F.3d 965, 975 (9th Cir.
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2012) (internal quotation marks omitted). Doe’s role is best described by the
second prong of this disjunctive test, and we therefore focus on this aspect of the
organizer enhancement under § 3B1.1(c).
The Sentencing Guidelines do not define the key term “organizer,” so we
turn to the dictionary definition. See United States v. Flores, 729 F.3d 910, 914
(9th Cir. 2013) (stating that undefined Sentencing Guidelines terms are given their
plain meaning, for which we may consult dictionary definitions). The dictionary
defines “organizer” as “[a] person who organizes,” and defines “organize” as to
“make arrangements or preparations for (an event or activity); coordinate” or to
“coordinate the activities of (a person or group of people) efficiently: organize and
lead a group of people.” New Oxford American Dictionary 1236 (3rd ed. 2010)
(italics omitted). This dictionary definition is consistent with language in the
application notes to § 3B1.1, which suggests that a court should consider
organizing, planning, and preparation activities, in addition to the degree of
authority and control over others. See § 3B1.1, cmt. n.4.
Consistent with the plain language of the Sentencing Guidelines, we have
held that a defendant who has the “organizational authority,” Lopez-Sandoval, 146
F.3d at 717, necessary to coordinate the activities of others to achieve a desired
result is an “organizer” for purposes of the enhancement under § 3B1.1(c), see
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Varela, 993 F.2d at 692.3 In Varela, we affirmed the district court’s ruling that a
defendant who “coordinated the procurement and the distribution of drugs from
numerous suppliers” qualified for the § 3B1.1(c) enhancement. 993 F.2d at 691.
Likewise in United States v. Avila, we upheld a district court’s finding that the
defendant was an organizer where he “coordinated the procurement and the
distribution of both cocaine and heroin” and “had numerous sources for his drugs.”
905 F.2d 295, 299 (9th Cir. 1990). In sum, the organizer enhancement is
appropriately applied to defendants who coordinate drug transactions because
“[t]he enhancement reflects the greater level of culpability of the participant who
arranges the transaction.” Varela, 993 F.2d at 691–92; see also United States v.
Montano, 250 F.3d 709, 716 (9th Cir. 2001).4
3
Section 3B1.1(c) applies to an “organizer” of a criminal organization that
has less than five participants, whereas § 3B1.1(a) applies to an “organizer” of a
criminal activity “that involved five or more participants.” The Sentencing
Guidelines application notes indicate that the terms “organizer, leader, manager, or
supervisor” have different meanings in “relatively small criminal enterprises” than
they do in “larger enterprises that tend to have clearly delineated divisions of
responsibility.” U.S.S.G. § 3B1.1, background cmt. Because we are interpreting
the term “organizer” for purposes of a smaller organization described in
§ 3B1.1(c), we do not address the extent to which our decision may apply to the
term “organizer” in § 3B1.1(a).
4
Doe attempts to distinguish Avila and Varela on the ground that they were
decided before a 1993 amendment to the Sentencing Guidelines application notes,
which added the current language requiring evidence that the defendant was “the
(continued...)
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An organizer need not also be a supervisor or a superior in a hierarchy of
criminal associates. See U.S.S.G. § 3B1.1(c); see also Varela, 993 F.3d at 691. As
we explained in Varela, the text of the Sentencing Guidelines requires this
conclusion. 993 F.2d at 691. “[A] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous . . . .”
Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks
omitted). Because “[s]ection 3B1.1 allows enhancements for ‘organizers’ as well
as for ‘supervisors,’ ‘leaders,’ or ‘managers,’” Varela, 993 F.3d at 691, requiring
an organizer to also be a supervisor would make the term “organizer” superfluous.
Thus, the organizer enhancement properly applies to a defendant who “organizes
others in the commission of the criminal activity even though he does not retain a
supervisory role over the other participants.” Id.
4
(...continued)
organizer, leader, manager, or supervisor of one or more other participants.” His
argument is based on an erroneous view of our case law prior to that amendment.
The 1993 amendment to the application note resolved a circuit split as to whether
the § 3B1.1(c) enhancement could apply if a defendant merely organized
“property, assets, or activities of a criminal organization,” § 3B1.1 cmt. n.2, but did
not organize participants. U.S.S.G. app. C, amendment 500. In clarifying that a
defendant must organize participants, not just property or activities, to be eligible
for the § 3B1.1(c) enhancement, the amendment made the Sentencing Guidelines
section consistent with our pre-existing decisions. See Varela, 993 F.2d at 692; see
also U.S.S.G., Appendix C, amendment 500. Therefore, our pre-1993 case law,
including Avila and Varela, is consistent with the amendment.
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Applying this interpretation in Varela, we confirmed that “[t]he fact that [the
defendant] and his suppliers were not in a permanent hierarchical relationship does
not preclude our conclusion” that the district court did not clearly err in imposing
the organizer enhancement. Id. at 691. Similarly, in Montano we held that the
defendant, who sold Mexican pharmaceuticals his suppliers smuggled into the
United States, was eligible for an organizer enhancement even though he had no
supervisory relationship with his suppliers, who were “independent contractors,
smugglers-for-hire, with [the defendant] being only one of their many customers.”
250 F.3d at 711, 715. Applying the enhancement was appropriate because the
defendant coordinated the smuggling operation to achieve its objective, telling his
suppliers “when to make a crossing, what pharmaceuticals to purchase, and where
to deliver them.” Id. at 716. Accordingly, we conclude that the term “organizer”
in § 3B1.1(c) applies to defendants who have the ability and influence necessary to
coordinate the activities of others to achieve the desired result, whether or not they
have a superior rank in a criminal hierarchy.5
5
This conclusion is consistent with the well-reasoned conclusions of the
First, Seventh, Eighth, and Tenth Circuits. See United States v.
Carrero-Hernandez, 643 F.3d 344, 350 (1st Cir. 2011) (observing that a defendant
“may be classified as an organizer, though perhaps not as a leader, if he
coordinates others so as to facilitate the commission of criminal activity” (internal
quotation marks omitted)); United States v. Brown, 315 F.3d 929, 932 (8th Cir.
(continued...)
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Doe argues that Bonilla-Guizar and Whitney stand for the principle that the
§ 3B1.1(c) enhancement requires supervision and some degree of control over
others. We disagree. Bonilla-Guizar does not address the issue. In Bonilla-
Guizar, we remanded for clarification of whether the defendant supervised a
“participant.” 729 F.3d at 1186–87. The district court held that the defendant, a
drug “stash house sitter,” had supervised “whatever went on in that house,” but it
was unclear whether the defendant directed the actions of other criminal
participants, or only the actions of the hostages kept there. Id. Likewise, Whitney
does not support Doe’s argument. In Whitney, a defendant participated in a
scheme for filing fraudulent tax returns by supplying a co-defendant with tax forms
and information on filing false returns, and “filing his own false returns as well as
false returns using other inmates’ identities.” 673 F.3d at 969. We concluded that
5
(...continued)
2003) (“[W]e do not require proof of control so long as the criminal activity
involves more than one participant and the defendant played a coordinating or
organizing role.” (internal quotation marks omitted)); United States v.
Valdez-Arieta, 127 F.3d 1267, 1271 (10th Cir. 1997) (holding that “devising a
criminal scheme, providing the wherewithal to accomplish the criminal objective,
and coordinating and overseeing the implementation of the conspiracy even though
the defendant may not have any hierarchical control over the other participants” is
sufficient to apply the § 3B1.1(c) enhancement); United States v. Bush, 79 F.3d 64,
67 (7th Cir. 1996) (stating that although control is a “significant factor, the overall
focus of § 3B1.1 is relative responsibility within a criminal organization,” so the
enhancement applies even absent control if the defendant “played a coordinating or
organizing role”).
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this evidence showed only that the defendant had “facilitated the crime,” id. at
975–76, which was “insufficient to support a determination that [the defendant]
was an organizer or leader warranting a two-level upward adjustment,” id. at 976.
In explaining why a facilitating role was an insufficient basis for imposing the
enhancement, we focused on the defendant’s failure to exercise “the necessary
level of control,” id. at 975, or have the requisite “supervisory role” in the offense,
id. at 976. Contrary to Doe’s argument, however, we did not hold that an
“organizer” must also be a supervisor to qualify for the § 3B1.1(c) enhancement or
suggest that a defendant who took a leading role in coordinating a transaction
would lack the requisite degree of control. Rather, we correctly explained that “[a]
court may impose this enhancement if there is ‘evidence that the defendant
exercised some control over others involved in the commission of the offense or
was responsible for organizing others for the purpose of carrying out the crime.’”
Id. at 975 (quoting United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007))
(emphasis added). Accordingly, Whitney is best read as reiterating our long-
standing rule that evidence showing that a defendant merely facilitated a criminal
activity is insufficient to show that the defendant had the aggravating role required
under § 3B1.1(c), whether as an organizer, leader, manager, or supervisor. See id.
at 975; see also Lopez-Sandoval, 146 F.3d at 716–17.
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As indicated in Whitney and Lopez-Sandoval, we do not apply the
enhancement merely because a defendant’s “important role” makes him “integral
to the success of the criminal enterprise” and gives him a “high degree of
culpability.” Whitney, 673 F.3d at 975; see also Lopez-Sandoval, 146 F.3d at
717–718 (holding that the defendant’s role as a translator for his co-conspirators,
though important, was an insufficient basis for applying the § 3B1.1(c)
enhancement). We have also rejected a district court’s use of a “but/for test” in
this context, and reversed a decision that a defendant qualified for the organizer
enhancement because the criminal enterprise could not succeed without him. See
United States v. Harper, 33 F.3d 1143, 1151 (9th Cir. 1994). Rather, to qualify for
the § 3B1.1(c) organizer enhancement, the defendant must have the necessary
influence and ability to coordinate the behavior of others so as to achieve the
desired criminal result. See Varela, 993 F.2d at 691; Avila, 905 F.2d at 299; see
also U.S.S.G. § 3B1.1, cmt. n.2.
We conclude that, in light of the facts and our precedent, the district court
did not clearly err in determining that Doe was an “organizer” for purposes of
§ 3B1.1(c). As required by Doe, the district court resolved the objections and
factual disputes raised by the parties. Its findings were not clearly erroneous and
they support the court’s conclusion that Doe’s efforts to coordinate “the
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procurement and the distribution of drugs from numerous suppliers,” and his role
in “coordinating the activities of the other participants to the extent necessary to
complete the transaction,” is sufficient to uphold the organizer enhancement.
Varela, 993 F.2d at 691–92. Doe’s coordination of the activities of the criminal
participants, namely Fletes, Bautista, and Rodriguez, as well as non-criminal
participants, including Gordo, Pelón, and Detective Valdez, was the driving force
behind the success of two drug transactions and near completion of a third. Doe
put the deal together by negotiating the type, quantity, and price of drugs for each
transaction, and then ensured the drugs, money, and participants arrived when and
where needed. Imposing the organizer enhancement when a defendant has this
level of involvement “reflects the greater culpability of the participant who
arranges the transaction.” Varela, 993 F.2d at 691–92; see also Montano, 250 F.3d
at 716.
As an organizer, Doe is ineligible for safety valve relief, pursuant to 18
U.S.C. § 3553(f)(4). We therefore also affirm the district court’s denial of relief
under the safety valve.
C
Finally, we turn to Doe’s claim that the district court erred in denying him a
two-level offense reduction for acceptance of responsibility. A defendant may
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receive at two-level offense reduction if he “clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). The “adjustment is not
intended to apply to a defendant who puts the government to its burden of proof at
trial by denying the essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse,” U.S.S.G. § 3E1.1 cmt. n.2, though going to
trial does not necessarily preclude the adjustment if the defendant asserts an
incomplete, rather than complete, defense at trial, see United States v. Burrows, 36
F.3d 875, 883 (9th Cir. 1994). The district court’s decision on this point is entitled
to “great deference” because “[t]he sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.5.
The decision is “not to be disturbed ‘unless it is without foundation.’” United
States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993) (quoting United States v. Aichele,
941 F.2d 761, 767) (9th Cir. 1991)).
At sentencing, the district court found that Doe’s testimony that he engaged
in criminal conduct for the purpose of gaining information to give to the FBI was
not believable, and that Doe was not truthful to the government or to the jury when
he testified. Although Doe challenges this finding on the ground that he could
subjectively believe that he was helping the FBI, even though the jury and judge
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decided that this belief was not reasonable, the district court’s findings are well
supported by the record and not clearly erroneous.
We have previously held that a defendant’s persistence in maintaining that
he lacked criminal intent because he engaged in criminal actions at the behest of
the government is “incompatible with acceptance of responsibility.” Burrows, 36
F.3d at 883. In Burrows, the defendant “freely admitted committing the actus reus
of the crime,” but “maintained even after trial that he had a complete defense based
on his purported lack of mens rea.” Id. We held that the defendant’s continued
insistence that he was working for the government showed that he “placed
responsibility on others and accepted none himself.” Id. Here, like in Burrows,
Doe’s defense was inconsistent with accepting responsibility.6 See id. Doe’s
argument that he is eligible for the downward adjustment because he admitted to
criminal acts and expressed remorse fails, given his continued insistence that he
lacked criminal intent. The district court did not err in determining that Doe failed
6
Doe claims that he did not deny his criminal intent at trial. He reasons that:
(1) Doe held that a public authority defense does not negate mens rea; (2) Doe
raised a public authority defense at trial; (3) therefore, Doe did not deny his
criminal intent. This argument fails because the court’s finding that Doe did in fact
deny his criminal intent at trial is well supported by the record. Indeed, Doe
requested a jury instruction stating that if the jury accepted his public authority
defense, “the defendant may not be convicted of violating the criminal statute,
because the requisite intent is lacking.” Doe, 705 F.3d at 1141.
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to show he accepted responsibility for his offense, and it therefore did not err in its
denial of the downward adjustment.
AFFIRMED.
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Counsel Page
Carolyn Wiggin (argued), Assistant Federal Defender; Heather E. Williams,
Federal Defender, Sacramento, California, for Defendant-Appellant John Doe.
Kathleen Servatius (argued), Assistant United States Attorney; Benjamin B.
Wagner, United States Attorney; Camil A. Skipper, Appellate Chief, Fresno,
California, for Plaintiff-Appellee United States of America.
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