United States v. Mario Baras Gonzalez

Case: 12-10434 Date Filed: 05/31/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10434
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00002-SJ-LTW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO BARAS GONZALEZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
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(May 31, 2013)
Before TJOFLAT, PRYOR, and JORDAN, Circuit Judges:
PER CURIAM:
Mario Gonzalez appeals the 41-month sentence imposed by the district court
after he pled guilty to conspiring to transport stolen goods, in violation of 18
U.S.C. § 371, and aiding and abetting the transportation of stolen goods in
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violation of 18 U.S.C. §§ 2314 and 2. Mr. Gonzalez challenges the district court’s
decision to apply a three-level role enhancement under U.S.S.G. § 3B1.1(b) based
on a finding that he was a “manager or supervisor” in the conspiracy. After
reviewing the parties’ briefs and the record, we affirm.
I
A company identifying itself as “LaRolle Transport, Inc.” responded to a
solicitation posted on the Internet by a shipment broker to pick up approximately
129,000 pounds of copper wire from Georgia, valued at $457,114.60, and deliver it
to Indiana. At the direction of Henry and Jacinto Diaz, three men—Mr. Gonzalez,
Anthony Foubelo, and Jesus Ramirez—each driving a separate truck and
purporting to represent LaRolle Transport, picked up the copper wire and
transported it to Miami, Florida, instead of its intended destination. According to
the Probation Office, Mr. Gonzalez “directed the actions of Foubelo and Ramirez
and was a manager and/or supervisor within the conspiracy.” Presentence
Investigation Report ¶ 21. Mr. Gonzalez objected to the proposed aggravating role
enhancement and the district court heard relevant testimony at a joint sentencing
hearing.
II
The Sentencing Guidelines authorize a three-level enhancement if “the
defendant was a manager or supervisor (but not an organizer or leader) and the
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criminal activity involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(b). The government must prove the existence of a leadership
role by a preponderance of the evidence. See United States v. Yates, 990 F.2d
1179, 1182 (11th Cir. 1993). We review a district court’s role determination for
clear error. See United States v. Barrington, 648 F.3d 1178, 1200 (11th Cir. 2011);
United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010).
To qualify for this enhancement, the defendant “must have been the
organizer, leader, manager, or supervisor of one or more other participants.”
U.S.S.G. § 3B1.1, cmt. n.2. 1 There “must be evidence that the defendant exerted
some control, influence or decision-making authority over another participant in
the criminal activity.” United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir.
2009). In determining the defendant’s role, “factors the court should consider
include (1) the exercise of decision making authority, (2) the nature of participation
in the commission of the offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the crime, (5) the degree of
participation in planning or organizing the offense, (6) the nature and scope of the
illegal activity, and (7) the degree of control and authority exercised over others.”
U.S.S.G. § 3B1.1, cmt. n.4 (enumeration added). There is no requirement that all
1
The commentary in the Sentencing Guidelines is authoritative, unless it is plainly erroneous,
inconsistent with the provision it interprets, or contrary to the Constitution or federal law. See
Stinson v. United States, 508 U.S. 36, 45 (1993); United States v. Torrealba, 339 F.3d 1238,
1242 (11th Cir. 2003).
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of the considerations have to be present in any one case. See Martinez, 584 F.3d at
1026.
Mr. Gonzalez does not dispute that his criminal activity involved five or
more participants or was otherwise extensive. Rather, he asserts that the district
court clearly erred in applying the three-level enhancement because the
government failed to meet its burden to show that he exercised control, influence,
or decision-making authority over his co-defendants. We disagree.
At the sentencing hearing, Mr. Foubelo testified about Mr. Gonzalez’s role
in the conspiracy to transport stolen goods. Mr. Foubelo stated that he had
received instructions from Jacinto “Pachi” Diaz that Mr. Gonzalez was in charge;
“[Mr. Diaz] just told me to follow [Mr. Gonzalez’s] instructions and that I should
do whatever he told me.” Transcript of Sentencing Proceedings at 22 [D.E. 133].
See also id. at 26 (“[Mr. Diaz] said we should follow all the instructions that [Mr.
Gonzalez] gave us, that he was very experienced in this sort of thing.”). Mr. Diaz
also told Mr. Foubelo to obtain cash from Mr. Gonzalez to purchase gasoline when
refueling the trucks. Mr. Foubelo was not privy to the shipment pick-up address;
Mr. Gonzalez knew the address and Messrs. Foubelo and Ramirez were instructed
to follow Mr. Gonzalez en route to Georgia. They spoke to Mr. Gonzalez via radio
during the trip, “as we were new at this, [Mr. Gonzalez] was trying to keep us
relaxed so we wouldn’t get frightened.” Id. at 26. In addition, Mr. Gonzalez
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possessed the fake magnetic signs which were placed on the sides of all of the
trucks during the theft, and taught Mr. Foubelo how to affix them. Mr. Foubelo
also stated that “[Mr. Gonzalez] told us to do exactly the same as he was doing.”
Id. at 76.
The district court credited Mr. Foubelo’s testimony regarding Mr.
Gonzalez’s role in the conspiracy, and found that Mr. Gonzalez directed Messrs.
Foubelo and Ramirez. We find no clear error in this finding.
Mr. Gonzalez also contends that he was merely carrying out the instructions
of the Diazes as a member of a team and not as a manager or supervisor. We have
held, however, that a defendant’s subordinate role to another conspirator does not
necessarily absolve him of a supervisory role. See United States v. Jones, 933 F.2d
1541, 1546-47 (11th Cir. 1991). Cf. U.S.S.G. § 3B1.1, cmt. n. 4 (“There can, of
course, be more than one person who qualifies as a leader or organizer of a
criminal association or conspiracy.”). Here, Mr. Gonzalez had the authority to
make decisions in choosing the route to drive while other drivers followed him and
directed the actions of others so that the operation would be successful.
III
The district court did not clearly err in finding that Mr. Gonzalez was a
manager or supervisor under § 3B1.1(b).
AFFIRMED.
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