United States v. Eddie Castilla-Lugo , 699 F.3d 454 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0377p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-1665
v.
,
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Defendant-Appellant. -
EDDIE CASTILLA-LUGO,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:10-CR-168-3—Paul Lewis Maloney, Chief District Judge.
Argued: July 26, 2012
Decided and Filed: November 1, 2012
Before: BOGGS and McKEAGUE, Circuit Judges; and WATSON, District Judge.*
_________________
COUNSEL
ARGUED: Madelaine C. Lane, WARNER, NORCROSS & JUDD LLP, Grand Rapids,
Michigan, for Appellant. Hagen W. Frank, UNITED STATES ATTORNEY’S OFFICE,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Madelaine C. Lane, WARNER,
NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant. Hagen W. Frank,
UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
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OPINION
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MICHAEL H. WATSON, District Judge. Mr. Castilla-Lugo appeals a sixty-
three month sentence imposed for conspiracy to produce and traffic fraudulent
identification documents and for possession of document-making implements. He
*
The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 11-1665 United States v. Castilla-Lugo Page 2
argues that the district court improperly applied the three-level managerial/supervisory
role enhancement pursuant to § 3B1.1(b) of the United States Sentencing Guidelines
(“U.S.S.G.”) and improperly applied a nine-level enhancement under § 2L2.1(b)(2)(C),
for the offense involving at least 100 documents. In addition, he argues his sentence is
substantively unreasonable. We affirm the judgment of the district court.
I. FACTS
Mr. Castilla-Lugo lived in Mexico City with his wife and two children until
2001. Unable to support his family financially, in 2001 he moved to New York to look
for employment. He lived in Queens until he was deported in November 2004.
Upon returning to Mexico City, Mr. Castilla-Lugo was again unable to support
his family. In 2009, he returned to the United States and worked in an auto body shop
in Wichita, Kansas until he was deported a second time later that year.
Undeterred, Mr. Castilla-Lugo entered the United States a third time. He again
worked in Kansas until he was laid off, at which point he contacted Mr. Reyes-Gonzalez
and made his way to Grand Rapids, Michigan, where Mr. Reyes-Gonzalez lived.
Mr. Reyes-Gonzalez made and sold false identification documents to illegal
immigrants and had been doing so with Mr. Lopez-Sosa for more than a year and a half
prior to Mr. Castilla-Lugo’s arrival. Shortly after his arrival, Mr. Castilla-Lugo joined
the operation and also began making and selling false documents. Mr. Reyes-Gonzalez
rented an apartment in Grand Rapids; Mr. Castilla-Lugo lived in one of the bedrooms,
and the documents were created in another. Mr. Castilla-Lugo then helped Mr. Reyes-
Gonzalez move the business to another apartment, again with Mr. Castilla-Lugo living
in one room and the documents being created in another. The “facility” (the room where
the documents were created) was kept locked, and when Mr. Reyes-Gonzalez was home,
no one had access to the room without Mr. Reyes-Gonzalez’s permission.
At some point, three additional men arrived from Kansas and joined the
conspiracy. These men, Mr. Armendariz-Becerra, Mr. Merlos-Gonzalez, and Mr.
Alvarado-Ponce, knew Mr. Castilla-Lugo in Kansas. Mr. Reyes-Gonzalez let them live
No. 11-1665 United States v. Castilla-Lugo Page 3
in the apartment/production facility, gave them false documents for themselves, and
provided them business cards and cell phones. Mr. Reyes-Gonzalez kept track of the
number of each associate’s sales in a notebook. He produced the fraudulent documents
and sold them for $50 each to the other defendants, who in turn fixed their own price
when selling to customers.
In 2009, Immigration and Customs Enforcement (“ICE”)1began investigating a
document production ring involving Mr. Reyes-Gonzalez. Through the use of
surveillance and controlled buys, ICE obtained information about the organization. ICE
agents also observed Mr. Reyes-Gonzelez and Mr. Lopez-Sosa selling documents. As
Mr. Castilla-Lugo was not involved in the production ring at that time, ICE agents did
not witness him making or selling documents during the course of their surveillance.2
ICE agents executed a search warrant on Mr. Reyes-Gonzalez’s apartment on
June 3, 2010. The agents found the six individuals identified above—Mr. Reyes-
Gonzalez, Mr. Lopez-Sosa, Mr. Castilla-Lugo,3 Mr. Armendariz-Becerra, Mr. Merlos-
Gonzalez, and Mr. Alvarado-Ponce—in the apartment. ICE agents seized from the
facility various materials related to the document production, including two Zebra
Technologies card printers and several thumb drives containing electronic fraudulent-
document templates. In Mr. Castilla-Lugo’s bedroom, agents found a box of his own
fraudulent business cards, a manual with instructions for changing the ribbon on the
Zebra card printer, a CD for the Zebra card printer, and a fraudulent driver’s license that
was matched to a used Zebra printer ribbon.
II. PROCEDURAL HISTORY
The Government filed a Superseding Indictment against Mr. Castilla-Lugo and
others on July 29, 2010, charging Mr. Castilla-Lugo with: one count of conspiring to
1
This particular section of ICE was renamed Homeland Security Investigations by the time of
trial.
2
In fact, ICE agents were not aware of Mr. Castilla-Lugo’s involvement prior to the raid.
3
Mr. Castilla-Lugo, Mr. Reyes-Gonzalez, and Mr. Lopez-Sosa were found hiding in the attic.
No. 11-1665 United States v. Castilla-Lugo Page 4
produce and traffic in fraudulent identification documents, in violation of 18 U.S.C.
§§ 371 and 1028 (“Count One”); one count of knowingly possessing document-making
implements with the intent they be used in the production of fraudulent identification
documents, in violation of 18 U.S.C. § 1028 (“Count Two”); and one count of illegal
reentry after previously being convicted of a felony, in violation of 8 U.S.C. § 1326(“Count 10”). Mr. Reyes-Gonzalez, Mr. Lopez-Sosa, Mr. Armendariz-Becerra, and Mr.
Merlos-Gonzalez4 were named as co-conspirators in Count One and co-defendants in
Count Two of the Superseding Indictment.
Mr. Castilla-Lugo pleaded guilty to the illegal reentry charge. Two of the co-
conspirators, Mr. Reyes-Gonzalez and Mr. Lopez-Sosa, pleaded guilty to Count One.
Mr. Castilla-Lugo and the other two co-conspirators were tried before a jury and
convicted on Counts One and Two. Both Mr. Reyes-Gonzalez and Mr. Lopez-Sosa
testified at the trial for the Government.
At sentencing, Mr. Castilla-Lugo objected to certain enhancements recommended
in the Pre-Sentence Investigation Report, but the district court overruled those objections
and applied a three-level enhancement for playing a managerial or supervisory role and
a nine-level enhancement because the offense involved 100 or more documents. The
district court also denied Mr. Castilla-Lugo’s request for a downward variance and
sentenced Mr. Castilla-Lugo to sixty-three months in prison, the top end of the
sentencing guideline range. He now appeals.
III. STANDARD OF REVIEW
“Sentences imposed post-Booker are reviewed for procedural and substantive
reasonableness.” United States v. Haj-Hamed, 549 F.3d 1020, 1023 (6th Cir. 2008)
(quoting United States v. Conatser, 514 F.3d 508, 519 (6th Cir. 2008) (citing United
States v. Booker, 543 U.S. 220, 261 (2005))). “Regardless of whether the sentence
imposed is inside or outside the Guidelines range, [this] court must review the sentence
4
Mr. Alvarado-Ponce was deported prior to the filing of the Superseding Indictment and was not
named therein.
No. 11-1665 United States v. Castilla-Lugo Page 5
under an abuse-of-discretion standard.” United States v. Vicol, 514 F.3d 559, 561 (6th
Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). We must first ensure
the district court did not commit a “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence . . . .” Haj-
Hamed, 549 F.3d at 1023 (citing Gall, 552 U.S. at 51). If the district court failed to
properly calculate the appropriate guideline range, we must remand for re-sentencing
unless the error was harmless. Vicol, 514 F.3d at 561. If the sentence is procedurally
sound, “we then review the sentence for substantive reasonableness under an abuse-of-
discretion standard.” Haj-Hamed, 549 F.3d at 1024 (citing Gall, 552 U.S. at 51).
IV. ANALYSIS
A. Procedural Reasonableness
1. Managerial Role Enhancement
Mr. Castilla-Lugo first argues the district court improperly applied a three-level
managerial role enhancement under U.S.S.G. § 3B1.1. He asserts the trial evidence
showed, at most, that he was present for six weeks of the conspiracy, made ten
documents, handed out business cards, and sold a couple of documents. He argues there
was no evidence he managed employees, directed sales, supervised salesmen, took
money, or even had authority over who to allow into the apartment.
The standard of review of a sentencing enhancement pursuant to U.S.S.G.
§ 3B1.1 is somewhat unsettled. Traditionally, “[a] district court’s legal conclusions are
. . . reviewed de novo, and its factual findings will not be set aside unless clearly
erroneous.” United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citing United
States v. Moncivais, 492 F.3d 652, 660 (6th Cir. 2007)). The Supreme Court held in
Buford v. United States, however, that review under U.S.S.G. § 4B1.2 should be
deferential rather than de novo, “in light of the fact-bound nature of the legal decision.”
532 U.S. 59, 66 (2001). This court has thus far “found it unnecessary to determine
No. 11-1665 United States v. Castilla-Lugo Page 6
whether Buford requires us to alter the standard of review we apply in reviewing § 3B1.1
enhancements.” Moncivais, 492 F.3d at 660 (citing United States v. McDaniel, 398 F.3d
540, 551 n.10 (6th Cir. 2005)); see also United States v. Currier, Nos. 11-5388, 11-5777,
2012 WL 1130427, at *3 (6th Cir. Apr. 4, 2012). Similarly, the uncertainty need not be
resolved here because the application of the enhancement was proper under either
standard of review.5
Under § 3B1.1(b), a three-level enhancement should be applied “[i]f 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 . . . .” U.S.
SENTENCING GUIDELINES MANUAL § 3B1.1(b) (2011). The Sixth Circuit requires a
showing that the defendant managed or supervised one or more participants in order to
justify an enhancement under this provision, and management or supervision of the
property, assets, or activities of the criminal organization may warrant an upward
departure but not an enhancement. United States v. Gort-DiDonato, 109 F.3d 318,
320–21 (6th Cir. 1997). Courts consider the following factors to determine whether to
apply an enhancement under § 3B1.1, and if so, whether the leader/organizer
enhancement or the lesser manager/supervisor enhancement is appropriate:
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 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.
U.S. SENTENCING GUIDELINES MANUAL § 3B1.1, app. n.4 (2011); see United States v.
Jeross, 521 F.3d 562, 579 (6th Cir. 2008). A district court need not find each factor in
order to warrant an enhancement. United States v. Gates, 461 F.3d 703, 709 (6th Cir.
2006).
5
“Regardless of the exact parameters of § 3B1.1(a) review in light of Buford, it is clear that
factual findings made by the district court are reviewed for clear error.” United States v. Walls, 546 F.3d
728, 735 (6th Cir. 2008) (citing United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005)). A factual
finding “is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.” Currier,
2012 WL 1130427, at *2.
No. 11-1665 United States v. Castilla-Lugo Page 7
Although the district court may have included factual and legal errors in its
analysis, it did not commit reversible error in its ultimate decision to apply the three-
level managerial enhancement to Mr. Castilla-Lugo. The district court made factual
findings that Mr. Castilla-Lugo recruited three other individuals—Mr. Armendariz-
Becerra, Mr. Merlos-Gonzalez, and Mr. Alvarado-Ponce—from Kansas to participate
in the conspiracy. Additionally, it found Mr. Castilla-Lugo sent those men into the street
to solicit customers, created false documents, moved the operation to a new apartment,
was the primary resident of the apartment, and had access to the document-making
implements. Most of these factual findings do not legally support a § 3B1.1
enhancement.
As noted above, the enhancement requires management or supervision of a
participant, not the assets of the criminal enterprise. Gort-DiDonato, 109 F.3d at 321.
Thus, while creation of documents, moving the operation between apartments, living in
the apartment, and having access or control over the implementations could warrant an
upward departure, they do not warrant an enhancement. Id.Moreover, the district court clearly erred in finding that Mr. Castilla-Lugo sent
Mr. Armendariz-Becerra and Mr. Merlos-Gonzalez into the street to solicit customers.
Facts relied upon in sentencing must be found by a preponderance of the evidence. See
Gates, 461 F.3d at 708. A review of the record shows there is no evidence to support
this finding.6 Thus, the district court committed clear error.
Nonetheless, other evidence supports the district court’s finding that Mr. Castilla-
Lugo recruited the three individuals from Kansas and brought them to the facility, which
is legally sufficient to support the § 3B1.1(b) enhancement. Before being deported, Mr.
Alvarado-Ponce stated in an interview that Mr. Castilla-Lugo invited him, Mr.
Armendariz-Becerra, and Mr. Merlos-Gonzalez from Kansas to Michigan for the express
6
There is record evidence that Mr. Castilla-Lugo was seen in a car with other co-defendants, that
Mr. Castilla-Lugo’s phone number was programmed into Mr. Merlos-Gonzalez’s phone, and that Mr.
Castilla-Lugo would pass out cards with both Mr. Armendariz-Becerra and Mr. Merlos-Gonzalez, but none
of this evidence supports an inference that Mr. Castilla-Lugo sent those co-defendants into the streets or
directed their activities.
No. 11-1665 United States v. Castilla-Lugo Page 8
purpose of selling counterfeit documents.7 Further, although not specifically mentioned
during sentencing by the district court, the evidence showed Mr. Castilla-Lugo allowed
the men to use his car to travel from Kansas to Michigan and to continue using it
throughout their involvement in the conspiracy and even created some of the false
identification documents for them upon their arrival in Michigan. Therefore, the district
court did not err in finding Mr. Castilla-Lugo recruited the three individuals from
Kansas.
Even under a de novo review, this evidence would warrant a § 3B1.1(b)
enhancement. Mr. Castilla-Lugo argues that he merely suggested the others participate
in the crime, which, under comment 4 to this provision, does not make him a manager.
Recruitment is distinguishable from suggesting criminal activity, however. In fact, the
same comment specifically lists recruitment of accomplices and the degree of planning
or organizing the offense within the seven factors courts should consider when
determining whether to apply the lesser manager/supervisor enhancement or the greater
organizer/leadership enhancement. U.S. SENTENCING GUIDELINES MANUAL § 3B1.1,
cmt. n.4 (2011).
It is evident that recruiting co-conspirators and planning and organizing their
entrance into the conspiracy suffices to warrant the enhancement, even though the
Government did not prove each of the other factors, such as receiving a larger share of
the profits or exercising decision-making authority. See Gates, 461 F.3d at 709. In fact,
Mr. Castilla-Lugo’s actions are similar to other cases for which § 3B1.1 enhancements
have been upheld by this court.8 See, e.g., United States v. Plunk, 415 F. App’x 650,
7
Mr. Castilla-Lugo argues the record evidence is that Mr. Reyes-Gonzalez recruited these men.
While Mr. Reyes-Gonzalez testified that he hired the men upon their arrival in Michigan, this does not
contradict Mr. Alvarado-Ponce’s statement that Mr. Castilla-Lugo recruited them, and that they came to
Michigan at his invitation.
8
This evidence would also likely warrant application of the enhancement in several of our sister
circuits. See United States v. Savarese, Nos. 10-1726, 10-1842, 2012 WL 2821563, at *14 (1st Cir. July
11, 2012) (“the evidence clearly establishes that DeSimone was primarily responsible for recruiting co-
defendant Richard Regnetta into the conspiracy. This conduct, by itself, constitutes a “managerial”
function under § 3B1.1[(c)].”); United States v. Clark-Thomas, No. 11-14131, 2012 WL 1537840, at *2
(11th Cir. May 2, 2012) (finding recruitment supports enhancement under § 3B1.1(c)); United States v.
Young, 334 F. App’x 477, 482 (3rd Cir. 2009) (manager enhancement proper where defendant recruited
accomplice to travel from Florida to Pennsylvania and paid for accomplice’s travel expenses, provided
No. 11-1665 United States v. Castilla-Lugo Page 9
653–54 (6th Cir. 2011) (“Under the caselaw of this Circuit, recruiting individuals to
complete narcotics deliveries, even on a one time or temporary basis, constitutes
supervisory conduct that warrants a § 3B1.1 enhancement.”); Gates, 461 F.3d at 709(enhancement proper where defendant recruited accomplices, drove them to the bank to
cash forged checks, and shared in the profits); United States v. Martinez, 16 F. App’x
410, 415 (6th Cir. 2001) (upholding enhancement where district court found defendant
had recruited a drug courier as part of conspiracy); United States v. Kraig, 99 F.3d 1361,
1370 (6th Cir. 1996) (managerial enhancement proper where defendant recruited
accomplices and provided information regarding crime to those recruits); see also United
States v. Gibson, 165 F. App’x 421, 422–23 (6th Cir. 2006) (recruitment plus exercise
of authority and control over co-conspirator warranted four-level enhancement for
leadership role).
Thus, the district court did not err under either standard of review when applying
the three-level enhancement for a managerial or supervisory role.
2. Specific Offense Characteristics Enhancement
Mr. Castilla-Lugo also appeals the district court’s application of the nine-level
enhancement under § 2L2.1(b)(2)(C) for the offense involving 100 or more documents.
Mr. Castilla-Lugo first argues that where a set of documents is intended for use by a
single person, all such documents should be treated as a single document, and therefore,
the Government did not prove the existence of 100 or more documents. Second, Mr.
Castilla-Lugo argues he cannot be held responsible for the documents created before he
joined the conspiracy.
As discussed above, we review the district court’s factual findings for clear error
and its application of the Guidelines provision to those facts de novo. Vasquez, 560 F.3d
at 473 (citing United States v. Moncivais, 492 F.3d at 660). Although this court has not
drugs, and directed accomplice to parking lot where exchange took place); United States. v. Erhart, 415
F.3d 965, 973 (8th Cir. 2005) (mere recruitment sufficient for enhancement); United States v. Jean, 29 F.
App’x 652, 654 (2nd Cir. 2002) (enhancement proper where defendant recruited others and received a cut
of the proceeds); United States v. Pippen, 115 F.3d 422, 424–25 (7th Cir. 1997) (manager enhancement
proper where defendant recruited at least one other individual and was the leader’s right-hand man).
No. 11-1665 United States v. Castilla-Lugo Page 10
yet reviewed a district court’s determination of the number of documents involved under
§ 2L2.1, it is a factual determination that will stand unless clearly erroneous. See, e.g.,
United States v. Murillo, 284 F. App’x 982, 984 (3rd Cir. 2008); United States v. Christ,
513 F.3d 762, 775 (7th Cir. 2008); United States v. Proshin, 438 F.3d 235, 238 (2nd Cir.
2006); United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004); United States v.
Hiralal, 44 F. App’x 176, 179 (9th Cir. 2002); United States v. Ojeda-Cruz, 29 F. App’x
152, 155 (4th Cir. 2002); United States v. Tonoc-Chan, 157 F.3d 901, No. 98-20016,
1998 WL 611511, at *1 (5th Cir. Aug. 18, 1998); United States v. Viera, 149 F.3d 7, 9
(1st Cir. 1998). A factual finding “is ‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United States v. Currier, 2012
WL 1130427, at *2. The Government must have proved the number of documents by
a preponderance of the evidence. See Gates, 461 F.3d at 708.
First, Mr. Castilla-Lugo argues that under § 2L2.1(b)(2), every document
prepared for an individual client constitutes a single document. In essence, he argues
that the Government would have to prove more than 100 individual clients in order for
the enhancement to apply. Because the Government could not prove how many of the
digital document templates were created for a single client, it could not prove 100
documents were created.
Application note 2 states, “[w]here it is established that multiple documents are
part of a set of documents intended for use by a single person, treat the set as one
document.” U.S. SENTENCING GUIDELINES MANUAL § 2L2.1(b)(2), cmt. n.2 (2011). At
sentencing, an ICE agent testified that more than 450 digital document templates were
retrieved from two thumb drives: approximately 200 United States documents and
approximately 250 foreign and state identity documents. He also testified that even
discounting the United States documents, the state identification and foreign documents
alone exceeded 100.
Mr. Castilla-Lugo argues that evidence was insufficient because one client could
have bought multiple state identification cards and foreign identification cards, which
No. 11-1665 United States v. Castilla-Lugo Page 11
together should count as only one document under the Sentencing Guidelines. He offers
no case law to support such a reading of application note 2, and decisions in other
Circuits suggest such a reading is incorrect. For example, United States v. Badmus
involved a defendant possessing multiple false identity documents. 325 F.3d 133, 136
(2nd Cir. 2003). Some of the documents bore identical photographs with different
names and biographical information. Id. The documents were to be submitted into
various country’s visa lottery programs, despite the fact that multiple entries were
against the law. Id. Both the trial court and the Second Circuit rejected the defendant’s
argument that since the multiple applications were meant for use by three or four
individuals, the applications constituted only three or four documents. Id. at 138, 140.
Likewise, in United States v. Castellanos, the Seventh Circuit considered
whether twenty four sheets of blank counterfeit resident alien cards (each with eight
impressions of the card) and two sheets of counterfeit Social Security cards (each with
twelve impressions of the card) constituted a total of 216 documents, as advanced by the
Government, or twenty-six documents, as advanced by the defendant. 165 F.3d 1129,
1130, 1132 (7th Cir. 1999). The Seventh Circuit noted that while a person may use both
one resident alien card and one Social Security card, “[o]ne person could not use, for
identification purposes, 12 Social Security cards or 8 resident alien cards found on one
sheet.” Id. at 1133. Even assuming one person could use both a resident alien card and
a Social Security card, the Seventh Circuit found the Government had proven
100 documents and upheld the enhancement. Id.The Ninth Circuit has also held that a sale of more than 1000 counterfeit Social
Security cards and more than 1000 fraudulent Alien Registration Receipt cards
constituted more than 1000 sets, despite being sold to a single person. United States v.
Perez-Gutierrez, 234 F.3d 1279, No. 99-10208, 2000 WL 1171129, at *1 (9th Cir. Aug.
17, 2000).
The reasoning of the Second, Seventh, and Ninth Circuits is sound. Any
documents that could be used at the same time for a single purpose should be considered
one document. While one person could use a combination of multiple counterfeit cards
No. 11-1665 United States v. Castilla-Lugo Page 12
together for a single purpose (for example one Social Security card, one green card, and
one driver’s license), a person would not likely use for a single purpose multiple state
identification or foreign identification cards. While it may be true, as Mr. Castilla-Lugo
contends, that an individual would want both a state driver’s license and a foreign
identification card, or a series of state identification cards, to show a timeline of
residency, it is speculative. Moreover, there were 250 foreign documents alone. Thus,
even if a person had one state and one foreign document in a “set,” there would still be
over 100 documents. The district court did not err in finding that the Government
proved by a preponderance of the evidence that at least 100 documents existed.
The next issue is whether all 100 documents can be attributed to Mr. Castilla-
Lugo given that he was only involved in the conspiracy for six weeks before he was
arrested. Mr. Castilla-Lugo argues that the enhancement only applies if 100 or more
documents were produced in the offense, and he should not be held responsible for
documents produced before he joined the conspiracy. He argues that to hold him
responsible for documents created before he joined the conspiracy, the district court had
to comply with United States v. Campbell, 279 F.3d 392, 399–400 (6th Cir. 2002), and
make particularized findings that the creation of 100 or more documents was within the
scope of his agreement to participate in the conspiracy and was foreseeable. The
Government argues that Mr. Castilla-Lugo was not held accountable merely because his
co-conspirators had previously produced 100 or more documents before he joined the
conspiracy but rather because 100 or more documents were “involved” in Mr. Castilla-
Lugo’s commission of the offense.
The Government’s argument is well-taken. The language of the applicable
guideline provides for an increase “[i]f the offense involved” 100 or more documents.
U.S. SENTENCING GUIDELINES MANUAL § 2L2.1(b)(2)(C) (2011) (emphasis added).
Circuits that have interpreted this provision have construed the word “involved” broadly
and noted that “involved” does not mean “produced.” Viera, 149 F.3d at 8. Because a
preponderance of the evidence showed that Mr. Castilla-Lugo created fraudulent
documents and that the fraudulent documents were created from the digital templates,
No. 11-1665 United States v. Castilla-Lugo Page 13
the district court did not err in finding those templates were involved in the offense.
See United States v. Najera-Luna, 262 F. App’x 889, 894–95 (10th Cir. 2008) (finding
that existence of ninety-three virtual templates, along with documents in various stages
of completion, proved that more than 100 documents were involved in the offense to
warrant nine-level enhancement); see also United States v. Singh, 335 F.3d 1321, 1324
(11th Cir. 2003) (counting all documents “involved” in the offense in determining a
§ 2L2.1(b)(2) enhancement); United States v. McDermott, 125 F.3d 859, No. 96-10471,
1997 WL 604051, at *1 (9th Cir. Oct. 1, 1997) (holding that where a defendant displayed
eleven documents for sale to an undercover officer, and subsequently transferred the five
sets selected by the undercover officer for purchase, the offense involved all eleven sets);
United States v. Salazar, 70 F.3d 351, 352 (5th Cir. 1995) (counting incomplete
documents that were intended to be falsified as involved in the offense).
The Campbell requirements would be appropriate in an instance where the
Government sought to impute, for example, the documents sold by Mr. Castilla-Lugo’s
co-defendants to him because those sales were reasonably foreseeable and part of the
conspiracy to which Mr. Castilla-Lugo agreed to participate, but they are not applicable
where Mr. Castilla-Lugo’s own offense involved the use of such documents.
In conclusion, the district court did not err in finding that at least 100 documents
were involved in the offense within the meaning of the guidelines and properly applied
the enhancement.
B. Substantive Reasonableness
Last, Mr. Castilla-Lugo argues his within-guidelines sentence is substantively
unreasonable. He argues first that it is not proportionate to the severity of the offense
or his specific characteristics in that it overstates his role in the conspiracy. He then
argues that a lesser sentence would have an equal deterrent effect.
“A sentence is substantively unreasonable if the sentencing court arbitrarily
selected the sentence, based the sentence on impermissible factors, failed to consider
pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent
No. 11-1665 United States v. Castilla-Lugo Page 14
factor.” United States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012). “In reviewing
the sentence’s substantive reasonableness, we consider ‘the length of the sentence and
the factors evaluated . . . by the district court in reaching its sentencing determination.’”
Id. (quoting United States v. Herrera-Zuniga, 571 F.3d 568, 581 (6th Cir. 2009).
“Because ‘[t]he sentencing judge is in a superior position to find facts and judge their
import under § 3553(a),’ this Court applies a great deal of deference to a district court’s
determination that a particular sentence is appropriate.” United States v. Mayberry,
540 F.3d 506, 519 (6th Cir. 2008) (citing Gall, 552 U.S. at 51). “The fact that the
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
Moreover, “[i]n evaluating the substantive aspect of a sentence, we may apply a
rebuttable presumption of reasonableness to sentences within the Guidelines.” United
States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008).
Mr. Castilla-Lugo first argues the sentence is not proportional to the nature and
circumstances of the offense and offender, as shown by the fact that it is longer than any
of his co-defendants’ sentences despite his limited role in the offense.9 Even considering
the differing sentences of his co-defendants, though, the district court did not abuse its
discretion.
Mr. Castilla-Lugo’s role, while perhaps not as extensive as Mr. Reyes-
Gonzalez’s, was not as limited as he argues. The evidence showed he recruited three
members into the conspiracy, which doubled the conspiracy’s size. He not only sold
fraudulent documents himself but also utilized the vast array of digital templates and
produced fraudulent documents. Further, he helped move the entire operation from one
apartment to another. He did all this in the approximately six-week span that he was
involved in the conspiracy.
9
Mr. Castilla-Lugo does not argue that his sentence resulted in a national disparity among similar
defendants but rather that the disparity among his co-defendants’ sentences proves his sentence fails to
consider his role in the conspiracy. As he concedes, the need to consider unwarranted sentence disparities
among defendants with similar records guilty of similar conduct requires a national comparison, not a
comparison of co-defendants in the same case. United States v. Simmons, 501 F.3d 620, 623–24 (6th Cir.
2007). The district court was permitted, but not required, to consider sentence disparities with respect to
the co-defendants. Id. at 624.
No. 11-1665 United States v. Castilla-Lugo Page 15
Additionally, although Mr. Reyes-Gonzalez was apparently the leader of the
operation, “a district court is not required to sentence at the low end of the guidelines
range simply because a co-defendant may be more culpable.” United States v. Casey,
No. 11-6147, 2012 WL 1676686, at *2 (6th Cir. May 15, 2012). Unlike Mr. Castilla-
Lugo, Mr. Reyes-Gonzalez accepted responsibility for his actions and pleaded guilty, as
did Mr. Lopez-Sosa. Moreover, they both provided assistance in the Government’s
investigation by testifying against Mr. Castilla-Lugo, Mr. Merlos-Gonzalez, and Mr.
Armendariz-Becerra. After considering their acceptance of responsibility and assistance,
it is not surprising that they received lesser sentences than Mr. Castilla-Lugo despite
having arguably greater culpability for the crime. See United States v. Stewart, 628 F.3d
246, 260 (6th Cir. 2010) (finding no abuse of discretion where district court sentenced
defendant more harshly than co-defendants who pleaded guilty and cooperated with
authorities). Similarly, the defendants who were tried with Mr. Castilla-Lugo were
incontrovertibly involved for a much shorter period of time, were not involved in the
document-production aspect of the operation, and did not recruit other members.
Therefore, even though his co-defendants were sentenced more leniently, Mr. Castilla-
Lugo’s sentence did not overstate his role in the offense.
Further, the district court did consider both offense and offender-specific
characteristics at sentencing. Although Mr. Castilla-Lugo suggests the district court did
not consider the offense particularly dangerous, the court’s statements at his own and
each of the other defendants’ sentencings show the district court considered the crimes
to be “very serious felonies” implicating national security. Any reduction in sentence
for the other co-defendants had nothing to do with the seriousness of the offense but
rather the acceptance of responsibility, cooperation they provided, small likelihood of
re-offending, or the small role those defendants played in the offense, none of which
weighed in Mr. Castilla-Lugo’s favor at his sentencing.
As to offender-specific characteristics, the district court noted that Mr. Castilla-
Lugo had twice entered the United States illegally after being deported. Further, the
district court found he was at a high risk of re-offending and that there was a great need
No. 11-1665 United States v. Castilla-Lugo Page 16
to protect the public from further crimes. The district judge also viewed Mr. Castilla-
Lugo’s act of moving the operation from one apartment to another as an attempt to evade
the law. Therefore, the district court fashioned a sentence proportionate to both the
seriousness of the offense and the offender’s characteristics.
Finally, while Mr. Castilla-Lugo argues that a sentence below the guidelines
range would deter this type of conduct among both himself and others similarly situated,
“[a] defendant’s ‘mere allegation that the sentence imposed is greater than necessary to
achieve the goals of punishment outlined in § 3553(a) is insufficient to rebut the
presumption of reasonableness . . . .’” Casey, 2012 WL 1676686, at *4 (quoting United
States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006)).
In conclusion, the district court’s within-guidelines sentence was proportionate
to both the offense and circumstances of the offender, and the court did not abuse its
discretion in sentencing Mr. Castilla-Lugo to a longer sentence than his co-defendants.
V. CONCLUSION
For the above reasons, the sentence is AFFIRMED.