United States v. Libardo De Jesus Parra-Gonzalez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16315
MAY 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-20089-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIBARDO DE JESUS PARRA-GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 21, 2009)
Before BIRCH, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Libardo De Jesus Parra-Gonzalez appeals his 188-month sentence
for (1) conspiracy to import into the United States five or more kilograms of
cocaine, in violation of 21 U.S.C. §§ 952(a), 963 (Count 1); (2) importing into the
United States five or more kilograms of cocaine, in violation of 21 U.S.C. § 952(a)
(Count 2); and (3) conspiracy to possess with intent to distribute five or more
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count 3). At
sentencing, the district court relied on the hearsay statements of Parra-Gonzalez’s
codefendants in imposing the leader/organizer enhancement and in finding that he
was responsible for 22 kilograms of cocaine. Parra-Gonzalez objected that the
hearsay was unreliable, but did not object to the manner in which the district court
made its factual findings.
On appeal, Parra-Gonzalez argues that the district court’s factual findings
that he was eligible for enhancements were based solely on unreliable hearsay. He
contends that the district court erred by failing to make specific findings as to the
credibility of the hearsay statements.
We review the district court’s factual findings for clear error. United States
v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). If a defendant does not raise his
allegation of sentencing error before the district court, we review the issue only for
plain error. United States v. Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006).
“Under plain error review, there must be (1) an error, (2) that is plain, and (3)
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affects substantial rights. When these three factors are met, we may exercise
discretion and correct the error if it seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” Id. (citation omitted).
Hearsay may be admitted at sentencing if there are “sufficient indicia of
reliability, the [district] court makes explicit findings of fact as to credibility, and
the defendant has an opportunity to rebut the evidence.” United States v. Zlatogur,
271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted). “[T]he focus is upon
the question of [the hearsay’s] reliability, which must be determined on a case by
case basis.” United States v. Lee, 68 F.3d 1267, 1275 (11th Cir. 1995). “While it
may be advisable and in some instances necessary for a district court to make
distinct findings regarding the reliability of hearsay statements used at sentencing,
the absence of such findings does not necessarily require reversal or remand where
the reliability of the statements is apparent from the record.” United States v.
Gordon, 231 F.3d 750, 761 (11th Cir. 2000).
Because we conclude from the record that the hearsay statements by Parra-
Gonzalez’s codefendants were supported by sufficient indicia of reliability and
Parra-Gonzalez had an opportunity to rebut those statements, we hold that the
district court did not clearly err by relying on the codefendants’ hearsay statements.
Moreover, because the district court implicitly found that the statements by Parra-
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Gonzalez’s codefendants were reliable and that finding is apparent from the record,
we conclude that the district court did not plainly err by failing to make an explicit
factual finding of credibility.
Parra-Gonzalez next argues that the facts did not support the
leader/organizer enhancement, pursuant to U.S.S.G. § 3B1.1(a), because (1) it was
based on unreliable hearsay; (2) he did nothing to organize the cocaine shipment;
and (3) he did not participate in any of the calls coordinating the shipment. He also
contends that he was not responsible for the entire 22-kilogram cocaine shipment,
but only for the 14 kilograms that he owned.
“A district court’s enhancement of a defendant’s offense level based on his
role as an organizer or leader is a finding of fact reviewed for clear error.” United
States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). Under clear error review,
when two permissible views of the evidence exist, the factfinder’s choice between
them will not be clearly erroneous. United States v. De Varon, 175 F.3d 930, 945
(11th Cir. 1999) (en banc) (citing Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 575, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985)). “The government
bears the burden of proving by a preponderance of the evidence that the defendant
had an aggravating role in the offense.” Yeager, 331 F.3d at 1226. The
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government also “must establish the quantity of drugs by the preponderance of the
evidence.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).
The Sentencing Guidelines provide for an enhanced offense level for a
defendant who had an aggravating role in the offense. U.S.S.G. § 3B1.1. A four-
level enhancement may be applied if “the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). In determining whether a § 3B1.1(a)
enhancement applies, the district court should consider “(1) exercise of
decision-making authority, (2) nature of participation in the commission of the
offense, (3) recruitment of accomplices, (4) claimed right to a larger share of the
fruits of the crime, (5) degree of participation in planning or organizing the
offense, (6) nature and scope of the illegal activity, and (7) degree of control and
authority exercised over others.” Rendon, 354 F.3d at 1331-32 (quotation omitted)
(citing 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.” U.S.S.G. § 3B1.1 cmt. (n.4). The defendant does not have to be the
“sole leader or kingpin of the conspiracy in order to be considered an organizer or
leader within the meaning of the Guidelines.” Rendon, 354 F.3d at 1332
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(quotation omitted). The district court’s application of a § 3B1.1(a) enhancement
is given deference on appeal. Id.
When a conviction stems from a conspiracy charge, the defendant is
responsible for the amount of drugs in all reasonably foreseeable acts done in
furtherance of the conspiracy. U.S.S.G. § 1B1.3(a). “For sentencing purposes a
member of a drug conspiracy is liable for his own acts and the acts of others in
furtherance of the activity that the defendant agreed to undertake and that are
reasonably foreseeable in connection with that activity.” Ismond, 993 F.2d at
1499.
We conclude from the record that the district court did not clearly err by
giving Parra-Gonzalez a leader/organizer enhancement because (1) he admitted to
organizing importation of the cocaine; (2) he demanded evidence from his
codefendants that the entire 22-kilogram cocaine shipment had been seized; (3) his
codefendants, who were involved in transporting the cocaine, were so afraid of him
that they went to the U.S. Embassy to obtain proof of the seizure, knowing that
they would be prosecuted; (4) he was involved in planning the shipment; (5) he
owned 14 out of the 22 kilograms of cocaine; (6) he was referred to as “Jefe,”
meaning boss; and (7) he was present when his phone was used to call the Miami
cell leader on the day the cocaine was seized. Lastly, we conclude from the record
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that the district court did not clearly err in finding that Parra-Gonzalez was
accountable for the entire 22-kilogram cocaine shipment because he was part of the
conspiracy and knew about the cocaine shipment.
For the above-stated reasons, we affirm Parra-Gonzalez’s 188-month
sentence.
AFFIRMED.
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