United States v. Roberto Nunez-Cebrero

USCA11 Case: 20-14255 Date Filed: 08/08/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14255
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO NUNEZ-CEBRERO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00026-PGB-GJK-1
____________________
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2 Opinion of the Court 20-14255
Before JORDAN, LAGOA, and NEWSOM, Circuit Judges.
PER CURIAM:
Roberto Nunez-Cebrero appeals his sentence of 300
months’ imprisonment for possessing, and conspiring to possess,
heroin with the intent to distribute. He argues that the district
court erred by enhancing his sentence pursuant to U.S.S.G. §
3B1.1(b) for his role as a manager or supervisor and U.S.S.G. §
2D1.1(b)(12) for maintaining a residence to distribute controlled
substances. Because there was substantial evidence to support
both enhancements, we affirm.
I
Mr. Nunez-Cebrero pleaded guilty to one count of conspir-
ing to possess heroin with the intent to distribute, in violation of 21
U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(A), and three counts of pos-
session of heroin with the intent to distribute, in violation of §
841(a)(1), (b)(1)(B). The final presentence investigation report
(“PSI”) stated that Mr. Nunez-Cebrero was the head of a drug-traf-
ficking organization that shipped kilograms of heroin from Chi-
cago, Illinois, to Kissimmee, Florida, for over seven years. His Kis-
simmee residence served as a distribution center where he received
shipments of heroin, stored the related proceeds, and maintained
the organization’s records. Mr. Nunez-Cebrero also boarded
horses and lived with his family there.
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20-14255 Opinion of the Court 3
A confidential source (“CS”) purchased heroin from a code-
fendant, Yenitza Garcia-Cosme. On multiple occasions, Ms. Gar-
cia-Cosme retrieved heroin from Mr. Nunez-Cebrero’s residence,
sold it to the CS, and then returned to the residence to deposit the
proceeds. In another instance, Mr. Nunez-Cebrero and the CS co-
ordinated the sale of 250 grams of heroin at a price of $55 per gram.
After agreeing to the sale, Mr. Nunez-Cebrero sent Luis Vazquez-
Trujillo, a co-conspirator, to retrieve payment and immediately re-
turn to the residence. DEA task force agents intercepted numerous
phone calls in which Mr. Nunez-Cebrero discussed the transport of
heroin and money from Chicago to Florida. For example, Mr.
Nunez-Cebrero coordinated a sale of 462.3 grams of heroin with
the CS and then directed codefendant Jose Robles-Roque to deliver
the drugs and retrieve payment.
The PSI concluded that Mr. Nunez-Cebrero was a manager
or supervisor of the drug trafficking organization and that he main-
tained a premises to distribute heroin. The PSI determined that
Mr. Nunez-Cebrero had a base offense level of 38 under U.S.S.G. §
2D1.1(a)(5), (c)(1). Mr. Nunez-Cebrero then received a two-level
enhancement for maintaining a premises to manufacture or distrib-
ute a controlled substance under § 2D1.1(b)(12), as well as a three-
level enhancement for acting as a manager or supervisor under §
3B1.1(b). His offense level was then reduced by three levels for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), re-
sulting in a total offense level of 40. With a base level offense of 40
and a criminal history category of I, the PSI calculated Mr. Nunez-
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4 Opinion of the Court 20-14255
Cebrero’s advisory guideline range to be 292 to 365 months’ im-
prisonment. Mr. Nunez-Cebrero objected to the PSI’s determina-
tions that he maintained a premises for drug distribution and that
he was a manager or supervisor in the narcotics scheme.
At the sentencing hearing, a DEA task force agent testified
that he and other officials intercepted phone calls between Mr.
Nunez-Cebrero, Mr. Vazquez-Trujillo, and Antonio Moya. In
these calls, Mr. Nunez-Cebrero directed Mr. Vazquez-Trujillo to
deliver kilograms of heroin to Mr. Moya in Chicago, who would
then deliver them to Mr. Nunez-Cebrero in Florida. On the way
to Florida, Mr. Moya was stopped by agents who discovered three
kilograms of heroin in his vehicle. Mr. Moya identified Mr. Nunez-
Cebrero as the recipient of the heroin and stated that he had previ-
ously delivered multiple kilograms of heroin from Chicago to the
Kissimmee residence over the course of twenty trips. During the
search of the Kissimmee residence, agents found receipts showing
that Mr. Nunez-Cebrero purchased the residence for $345,000 in
cash. The residence was the “hub” of Mr. Nunez-Cebrero’s drug
activity.
On cross-examination, the task force agent testified that Mr.
Nunez-Cebrero gave directions to at least ten people, while never
receiving orders from anyone. He also testified that Mr. Nunez-
Cebrero set the price of the heroin. The task force agent could not
say that drug manufacturing took place at the residence, but that
drug distribution did.
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20-14255 Opinion of the Court 5
The district court overruled the objection to the § 3B1.1 en-
hancement because Mr. Nunez-Cebrero made decisions regarding
the price of the heroin, directed people to travel with drugs or re-
turn with money, and had an apparent right to a larger share of the
profits, as evidenced by the $345,000 residence he bought. The
court found that the extensive nature and scope of the illegal activ-
ity and his considerable control over others supported the role en-
hancement. The district court also overruled Mr. Nunez-Cebrero’s
objection to the § 2D1.1(b)(12) enhancement because the Kis-
simmee residence was used to package, distribute, and store heroin
and to keep drug sale proceeds. The court adopted the PSI’s guide-
line range of 292 to 365 months’ imprisonment and sentenced Mr.
Nunez-Cebrero to 300 months’ imprisonment.
II
We review a district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. See
United States v. Asante, 782 F.3d 639, 642 (11th Cir. 2015). For a
finding to be clearly erroneous, we must be left with a firm convic-
tion that a mistake has been committed. See United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010).
The government bears the burden of establishing the facts
necessary to support a sentencing enhancement by a preponder-
ance of the evidence. See United States v. Dimitrovski, 782 F.3d
622, 628 (11th Cir. 2015). Sentencing courts can consider hearsay
evidence so long as the defendant has an opportunity to refute it
and the evidence bears minimal indicia of reliability. See United
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6 Opinion of the Court 20-14255
States v. Hall, 965 F.3d 1281, 1294 (11th Cir. 2020). To successfully
challenge a sentence based on the consideration of hearsay, a de-
fendant must show that the challenged evidence is materially false
or unreliable and that it actually served as the basis for the sentence.
See id.III
We affirm the district court’s application of both sentenc-
ing enhancements. There was substantial evidence to support each
one and the district court did not clearly err in imposing them.
A
Mr. Nunez-Cebrero contends that the § 3B1.1 role enhance-
ment was not supported by sufficient evidence because the only
evidence presented was the task force agent’s hearsay testimony.
As noted, § 3B1.1 provides for a three-level enhancement if the de-
fendant was a manager or supervisor and the crime involved five
or more participants or was otherwise extensive. See U.S.S.G. §
3B1.1(b). Courts consider several factors when determining
whether a defendant was a manager or supervisor, including his
decision-making authority, the nature of his participation in the of-
fense, recruitment of accomplices, his claimed right to a larger
share of the fruits of the crime, the degree of participation in plan-
ning or organizing the offense, the nature and scope of the offense,
and the degree of control and authority exercised over others. See
id. at cmt. n.4. The task force agent’s testimony sufficiently
showed that Mr. Nunez-Cebrero directed at least ten participants
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20-14255 Opinion of the Court 7
to distribute and transport specific amounts of heroin and money
on his behalf, never received orders from anyone, set the price of
the heroin, and gave orders to at least ten people. This evidence
was sufficient to show that Mr. Nunez-Cebrero’s role in the con-
spiracy met the requirements of § 3B1.1(b). See, e.g., United States
v. Sosa, 777 F.3d 1279 (11th Cir. 2015) (finding the application of a
§ 3B1.1(b) managerial role enhancement was not clearly erroneous
where the defendant for healthcare fraud maintained some control
over the business’s finances, was entitled to a share of the proceeds,
participated in negotiations, and wrote checks to compensate co-
conspirators).
Mr. Nunez-Cebrero argues that the § 3B1.1(b) managerial
role enhancement cannot be supported solely by hearsay testi-
mony, and cites to United States v. Glinton, 154 F.3d 1245 (11th
Cir. 1998). But the task force agent’s relevant testimony was much
more detailed than the double-hearsay at issue in Glinton, and Mr.
Nunez-Cebrero did not object to this testimony at his sentencing
hearing. Importantly, he also has not argued that the testimony
was materially false or unreliable. It is the defendant’s burden to
show that hearsay evidence is materially false or unreliable and Mr.
Nunez-Cebrero has not offered any reason why the task force
agent’s testimony could not be believed. See Hall, 965 F.3d at 1294
(“The 2002 case file and the depositions of [witness and victim] con-
tain more than sufficient ‘indicia of reliability’ to be considered in
sentencing, and Hall had an opportunity to refute that evidence but
he didn’t.”).
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8 Opinion of the Court 20-14255
B
Mr. Nunez-Cebrero also contends that drug distribution was
not a primary use of his residence, and that the task force agent’s
testimony merely showed that drug distribution occurred there.
As relevant here, § 2D1.1(b)(12) provides for a two-level enhance-
ment if a defendant maintained a premises to manufacture or dis-
tribute drugs. See U.S.S.G. § 2D1.1(b)(12). Manufacturing or dis-
tributing a controlled substance need not be the sole purpose for
which the residence was maintained, but must be a primary or
principal, rather than incidental or collateral, use. See id. cmt. n.17.
Courts consider how frequently the premises were used for manu-
facturing or distributing drugs and for lawful purposes. See id.
The task force agent testified that multiple people delivered
kilograms of heroin from Chicago to the Kissimmee residence, that
Ms. Garcia-Cosme went to and from the Kissimmee residence
when selling heroin to the CS, and that the participants used the
residence to distribute, package, and store heroin and keep the re-
lated proceeds. Although there was evidence to show that the
premises was also used to operate a horse business and house Mr.
Nunez-Cebrero’s family, the task force agent testified that the Kis-
simmee residence was the “hub” of the organization’s drug activity
in Florida. Under the totality of the circumstances, we cannot say
the enhancement was not supported by substantial evidence. See
United States v. George, 872 F.3d 1197, 1206 (11th Cir. 2017) (hold-
ing that the district court did not clearly err in applying a §
2D1.1(b)(12) enhancement where drugs had been delivered
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20-14255 Opinion of the Court 9
directly to the defendant’s apartment, at least one drug sale took
place there, and it stored packing equipment, scales, heat-sealing
machines, and firearms). Therefore, despite the Kissimmee resi-
dence’s other legitimate uses, the court did not clearly err by con-
cluding that heroin distribution was one of the property’s primary
purposes. See U.S.S.G. § 2D1.1(b)(12) cmt. n.17.
IV
The § 3B1.1(b) and § 2D1.1(b)(12) enhancements were sup-
ported by substantial evidence and the district court did not clearly
err in imposing them.
AFFIRMED.