United States v. Plancarte-Vazquez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2286
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Isidro Plancarte-Vazquez, also known *
as Isidro Plancarte-Rueda, *
*
Defendant - Appellant. *
__________ Appeals from the United States
District Court for the Northern
No. 05-2387 District of Iowa.
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Manuel Plancarte, *
*
Defendant - Appellant. *
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Submitted: March 14, 2006
Filed: June 27, 2006
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Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.
Manuel Plancarte and his son, Isidro Plancarte-Vazquez, pled guilty to
conspiracy to distribute 15,000 grams or more of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 and possession with intent to distribute 50
grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). The district court sentenced Plancarte to 275 months' imprisonment and
sentenced Plancarte-Vazquez to 168 months' imprisonment. Both appeal their
sentences. We affirm the district court's judgment as to Plancarte, but vacate the
judgment and remand for resentencing as to Plancarte-Vazquez.
Based on information that an individual named Lori Perez was involved in the
illegal sale of narcotics, officers executed a search warrant at her residence in Sioux
City, Iowa, where they arrested her after uncovering drug paraphernalia and a small
amount of methamphetamine. During an interview following her arrest, Perez told
officers that Isidro Plancarte-Vazquez and his father, Manuel Plancarte, were the
sources of the methamphetamine and claimed that she had purchased approximately
50 pounds (22,680 grams) of methamphetamine and 15 to 20 pounds (5,443.2 to 9,072
grams) of marijuana from them.
Following an investigation involving several controlled buys and a traffic stop,
Plancarte and Plancarte-Vazquez were indicted and charged with conspiracy to
distribute 15,000 grams or more of methamphetamine and possession with intent to
distribute 50 grams or more of methamphetamine. The defendants pled guilty to both
counts of the indictment, and the matter proceeded to sentencing, where the parties
argued four guideline issues: (1) drug quantity; (2) offense role; (3) enhancement for
use or attempted use of a minor; and (4) acceptance of responsibility.
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At sentencing, the government presented three witnesses: Steven Hamel, Tony
Wingert, and Lori Perez. Hamel was Lori Perez's former boyfriend, and he testified
that from the spring of 2003 until Perez's arrest on October 21, 2003, he saw
Plancarte-Vazquez selling about 10 pounds of methamphetamine to Perez and
witnessed Plancarte selling about five pounds of methamphetamine to Perez. During
these transactions, which would take place at Perez or Plancarte's house, Perez would
hand the money to Plancarte-Vazquez, who would count it; then Plancarte would take
the package of drugs out of the front of his pants and hand it to Perez or to Plancarte-
Vazquez, who would hand the package to Perez.
Perez, who pled guilty to conspiracy to distribute 500 grams or more of
methamphetamine, was the government's main witness at sentencing. She testified
that it was her belief that Plancarte was in control of the business. She testified that
Plancarte-Vazquez would have to ask his father for permission to sell drugs to her.
Also, when Plancarte went back to Mexico, he would often call Plancarte-Vazquez to
check on him, and on occasion would send another son from Mexico to Sioux City to
watch over the operation. Occasionally, Plancarte would cut his son off from selling
methamphetamine by sending him back to Mexico, or would get upset with him and
chastise him for mismanaging the business. Perez also testified that she was aware
that other people worked for Plancarte because at times she would accompany him
and Plancarte-Vazquez to other houses in order to obtain methamphetamine, or she
would have to go into another room when other people arrived during her
methamphetamine transactions with Plancarte. Perez also testified that Plancarte
would tell her how to make more money on the methamphetamine he was selling to
her and would warn her about having a lot of people coming to her house to buy
methamphetamine.
Wingert, a deputy sheriff with the Woodbury County Sheriff's Department,
testified at sentencing about the investigation into the activities of Plancarte and his
son. Wingert testified that, at least six months before the defendants' arrest, Perez had
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identified both defendants and admitted to being involved in buying more than 50
pounds of methamphetamine with them, an amount consistent with that Perez testified
to at sentencing. In addition, Wingert relayed information he had received from an
informant during the course of his investigation, who claimed to have received
approximately 10 pounds of methamphetamine from the defendants and who
corroborated other information provided by Perez.
Based on the evidence presented at sentencing, the district court found Plancarte
responsible for at least 30,000 kilograms of marijuana equivalent, for a base offense
level of 38.1 The court imposed a three-level enhancement for Plancarte's role as a
manager or supervisor of a criminal activity involving five or more participants, see
U.S.S.G. § 3B1.1(b), and a two-level reduction for acceptance of responsibility, see
U.S.S.G. § 3E1.1(a), for an adjusted offense level of 39. The court rejected the
government's request for an enhancement for the use or attempted use of a minor to
commit the offense, finding the record to be unclear regarding his direction or use of
his son, Plancarte-Vazquez, during the early years of the conspiracy when the uncle
was more involved than Plancarte. With a criminal history category of I, the advisory
guidelines sentencing range was from 262 to 327 months' imprisonment. The court
sentenced Plancarte to 275 months' imprisonment on each count, to be served
concurrently, five years of supervised release on each count, to be served
concurrently, and a $200 special assessment.
The district court found Plancarte-Vazquez responsible for "at least 10,000
kilograms of marijuana equivalent," but then found that this amount called for an
1
As set forth in U.S.S.G. § 2D1.1, comment. (n. 10) (2004), when a case
involves multiple drug types—here, methamphetamine and marijuana—the drugs are
converted to marijuana equivalent to determine the defendant's base offense level. See
United States v. Lopez-Arce, 267 F.3d 775, 782 n.4 (8th Cir. 2001).
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offense level of 38, the same as that given to Plancarte based on a drug quantity
calculation of 30,000 kilograms. After receiving a three-level reduction for
acceptance of responsibility, see U.S.S.G. § 3E1.1(b) and with a criminal history
category of I, the guidelines sentencing range for Plancarte-Vazquez was between 168
and 210 months' imprisonment. The district court sentenced him to 168 months'
imprisonment on each count, to be served concurrently, five years of supervised
release on each count, to be served concurrently, and a special assessment of $200.
I.
Plancarte first challenges the district court's drug quantity calculation, which we
review for clear error. United States v. Vinton, 429 F.3d 811, 816-17 (8th Cir. 2005).
"The government bears the burden of proving drug quantity by a preponderance of the
evidence." United States v. Marshall, 411 F.3d 891, 894-95 (8th Cir. 2005).
Plancarte argues that the quantity of drugs attributed to him was clearly
erroneous because the government's main witness on that issue, co-conspirator Lori
Perez, provided uncertain and inconsistent estimates of the quantities of drugs
involved in the conspiracy. When calculating drug quantity in the context of a
narcotics trafficking conspiracy, the sentencing court may consider all transactions
known or reasonably forseeable to the defendant that were made in furtherance of the
conspiracy. See United States v. Mickelson, 378 F.3d 810, 821-22 (8th Cir. 2004);
U.S.S.G. § 1B1.3(a)(1)(B). It is well-established that the testimony of co-conspirators
may be sufficiently reliable evidence upon which the court may base its drug quantity
calculation for sentencing purposes. Mickelson, 378 F.3d at 821. Moreover, "[a]
district court's assessment of a witness's credibility is almost never clear error given
that court's comparative advantage at evaluating credibility." United States v.
Killingsworth, 413 F.3d 760, 763 (8th Cir. 2005), cert. denied, 126 S. Ct. 633 (2005);
see also Mickelson, 378 F.3d at 822 ("sentencing court's assessment of the credibility
of a witness is nearly unreviewable.") (quotation marks omitted).
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Here, the district court based its drug quantity calculation on Perez's testimony
that Plancarte and his co-conspirators had supplied her with more than 50 pounds
(22,680 grams) of methamphetamine and at least 15 pounds of marijuana (5,443.2
grams) over the course of the conspiracy. The presentence report converted these
amounts into 45,365.44 kilograms of marijuana equivalent. See U.S.S.G. § 2D1.1,
comment. (n. 10). While the court acknowledged "some level of uncertainty and
inconsistency" with regard to Perez's testimony, the court stated that it could find from
the testimony that the quantity of drugs involved substantially exceeded the 30,000
kilogram threshold required to reach a base offense level of 38, even if it was
insufficient for the court to find the much greater quantity recommended in
presentence report. See U.S.S.G. § 2D1.1(c)(1). The court did not commit clear error
by crediting Perez's testimony, and that testimony provided sufficient support for the
court's drug quantity calculation.
Next, Plancarte argues that there was insufficient evidence to warrant the role
enhancement he received for being a supervisor or manager of a drug trafficking
conspiracy. The Sentencing Guidelines provide for a three-level enhancement "[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.S.G. § 3B1.1(b). Plancarte does not dispute the sentencing court's finding that the
instant drug trafficking conspiracy involved at least five participants—Plancarte,
Plancarte-Vazquez, Plancarte's other son, an uncle, and Lori Perez. Nor does he
dispute the district court's alternative finding that the conspiracy was "otherwise
extensive" in that it involved "a significant amount of drugs over a substantial period
of time involving a number of people with a constant connection between this country
and the country of Mexico." Accordingly, the only issue with respect to the three-
level enhancement is whether the district court erred in finding that Plancarte was a
"manager or supervisor."
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We review the district court's determination that Plancarte was a "manager or
supervisor" for clear error, with the burden on the government to prove by a
preponderance of the evidence that an enhancement was warranted. United States v.
Mesner, 377 F.3d 849, 851 (8th Cir. 2004). For a sentencing court to impose a
managerial or supervisory role enhancement there must be sufficient evidence from
which to find that the defendant "controlled at least one other participant in the drug
trafficking offense." Id. at 851-52 (quoting United States v. Yerkes, 345 F.3d 558,
563 (8th Cir. 2003)); United States v. Padilla-Pena, 129 F.3d 457, 470 (8th Cir. 1997).
Here there was sufficient evidence from which the court could make such a finding.
At sentencing, Lori Perez testified that she purchased approximately 50 pounds
of methamphetamine and 15 pounds of marijuana from defendants or Plancarte-
Vazquez’s uncle, that she helped Plancarte-Vazquez wire drug proceeds to Plancarte
in Mexico, and that Plancarte sent his older son from Mexico to supervise Plancarte-
Vazquez's operation in Sioux City. She also stated that Plancarte-Vazquez had to get
permission from Plancarte to sell drugs to her, and that Plancarte would tell her how
to conduct her business. Plancarte would also get upset with his son and cut him off
from selling and send him back to Mexico. All of this supported Perez's belief that
it was Plancarte who was "more in control of everything," which in turn supported the
district court's finding that Plancarte controlled at least one of the four other people
involved in the conspiracy.
In response, Plancarte points to aspects of Perez's testimony suggesting that he
was merely a distributor and that he did not exercise sufficient managerial or
supervisory control. For example, Perez admitted on cross-examination that she had
no idea whether it was Plancarte or another relative who was the actual "leader" of the
family's drug business. To be sure, one's status as a distributor of narcotics would not,
standing alone, transform one into a manager or supervisor. United States v. Bahena,
223 F.3d 797, 804 (8th Cir. 2000); see also United States v. Willis, 433 F.3d 634, 636
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(8th Cir. 2006) ("In a drug conspiracy case, 'a defendant must do more than sell for
resale' to be found an organizer or leader.") (quotation marks omitted). But neither
is the government required to prove the defendant controlled his co-conspirators'
every movement to find that he occupied a leadership role. United States v. Pitts, 173
F.3d 677, 681-82 (8th Cir. 1999). Instead, "it is enough if the defendant assumed
organizing or leadership functions such as recruiting others, determining the price or
location of sales, and so forth." Willis, 433 F.3d at 636.
Based on the record before it, the district court found that Plancarte was more
than a mere distributor; he "was in fact a manager or supervisor" and performed
functions associated with such a role within the organization. As discussed
previously, this finding enjoyed considerable support from the testimony of Lori
Perez. Although aspects of her testimony could support a contrary finding, "[w]here
there are two permissible views of the evidence, the district court's choice between the
two cannot be clearly erroneous." United States v. Wells, 127 F.3d 739, 745 (8th Cir.
1997) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)). Finding
no clear error with respect to the court's role determination, we affirm Plancarte's
sentence.
II.
Plancarte-Vazquez challenges the district court's drug quantity calculation.
Because he did not object to this calculation at sentencing, we review his claim for
plain error. United States v. Nace, 418 F.3d 945, 946 (8th Cir. 2005). We will correct
a plain error only if it affected his substantial rights and "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings." United States v.
Warren, 361 F.3d 1055, 1058 (8th Cir. 2004) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
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Here, we have no trouble concluding that the district court committed plain
error by reaching a base offense level that was not supported by its drug quantity
finding. At sentencing the district court found Plancarte-Vazquez responsible for "at
least 10,000 kilograms of marijuana equivalent," but then concluded that this amount
called for an offense level of 38.2 This was error, since an offense level of 38 must be
supported by a finding of at least 30,000 kilograms of marijuana equivalent, see
U.S.S.G. § 2D1.1(c)(1), while a finding of at least 10,000 kilograms, without more,
would only support a base offense level of 36, see U.S.S.G. § 2D1.1(c)(2).
Plancarte-Vazquez argues that this plain error affected his substantial rights
because his sentence of 168 months' imprisonment was greater than that he would
have received absent the error. He points out that with a criminal history category of
I, his adjusted offense level based on the quantity of drugs the district court actually
found would have resulted in a guidelines range of 135 to 168 months' imprisonment,
but due to the district court's error in setting his offense level he was subject to a range
of 168 to 210 months' imprisonment. U.S.S.G. Chapter 5 Part A. Plancarte-Vazquez
2
In this regard the district court stated:
Accordingly, for the court to conclude, based upon the testimony that has
been offered, that we have what amounts to almost 55,000 kilograms of
marijuana equivalent, which is what would be used to determine the base
offense level, it is pretty hard for the court to conclude on this record that
that number or a number particularly close to it would be an accurate
number. However, it is not necessary for the court to do that. The court
need only determine that the record supports at least 10,000 kilograms
of marijuana, and this record clearly supports a level of drug
involvement at that level. So I have no difficulty finding that the base
level is supported based upon the record that has been provided to me at
an offense level 38, even though the court is not able to find on this
record the specific amount in excess of that figure.
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contends that he suffered prejudice when the district court sentenced him at the bottom
of the higher guideline range, even though his sentence of 168 months' was within the
lower guidelines range applicable to the drug quantity finding the district court
actually made.
"In a number of cases, we have granted plain error review when the district
court applied the wrong mandatory guidelines range because of clerical or other
errors." United States v. Pirani, 406 F.3d 543, 553-54 (8th Cir. 2005) (en banc) (citing
Warren, 361 F.3d at 1059; United States v. Weaver, 161 F.3d 528, 530 (8th Cir. 1998)
(per curiam); and United States v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998)); cert.
denied, 126 S. Ct. 266 (2005). In Weaver, we exercised our discretion to remand for
resentencing where a plain typographical error affected the sentencing guideline
range, even though, as here, the sentence the district court imposed fell within both
the correct and the incorrect guideline ranges. We were unwilling to say that the
defendant's substantial rights were not affected by the error, because a review of the
record persuaded us that the district court "might well have sentenced Weaver to a
lesser term of imprisonment under the range that would have applied but for the
typographical error." Id. at 530. Furthermore, we reasoned that an exercise of our
discretion to correct the plain error was appropriate since "the public's confidence in
the judicial process would be undermined if an inadvertent typographical error were
to be allowed to influence the length of a criminal defendant's sentence." Id.
More recently and for essentially the reasons stated in Weaver, we exercised our
discretion to remand for resentencing where an increased sentence resulted from an
"obvious guideline computation error." Warren, 361 F.3d at 1059-60. Unwilling to
speculate as to what sentence the defendant would have received absent the plain
error, we found in the record "enough ambiguity to conclude that the district court
'might well' have arrived at a lesser term of imprisonment." Id. at 1059 (quoting
Weaver, 161 F.3d at 530). We also concluded that "the public's confidence in the
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judicial process would be undermined as much when an increased sentence results
from an obvious guideline computation error as from an obvious typographical error,"
and accordingly exercised our discretion to remand. Id.
The mismatch here between the drug quantity finding and the offense level is
akin to the obvious guideline computation and typographical errors that justified
remands in Weaver and Warren. Although the government argues that Plancarte-
Vazquez suffered no prejudice because the district court "obviously intended to say
'at least 30,000 kilograms of marijuana equivalent'" as required to support the offense
level it announced, our review of the record reveals that this conclusion is not so
obvious. In determining the appropriate sentence, the court expressed its concerns
with the precision and accuracy of the testimony of Lori Perez, the government's "key
witness" on the issue of drug quantity. Moreover, the district court specifically stated
that it was imposing a sentence at the bottom of the guideline range it applied in order
"to accommodate the unique circumstances of your lack of criminal history and the
influence that your family apparently had on you in this case." Lastly, the district
court's assignment of an offense level to Plancarte-Vazquez, the son, that was equal
to the offense level it assigned to Plancarte, the father and recipient of a leadership
role enhancement, at least suggests that the district court "might well" have meant
what it said with respect to the drug finding, as opposed to the offense level.
On this record, "we believe there is enough ambiguity to conclude that the
district court 'might well' have arrived at a lesser term of imprisonment," and, if so,
the public's confidence in the judicial process would be undermined if the greater term
is left intact. Warren, 361 F.3d at 1059 (quoting Weaver, 161 F.3d at 530).
Accordingly, we exercise our discretion to remand for resentencing, but in doing so,
express no opinion as to what sentence the district court should impose, nor do we
address Plancarte-Vazquez's remaining arguments on appeal, as they may not arise at
resentencing.
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III.
We affirm the conviction and sentence of Manuel Plancarte, but vacate the
judgment with respect to Isidro Plancarte-Vazquez and remand for further proceedings
consistent with this opinion.
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