     Case: 13-41258   Document: 00512918954     Page: 1   Date Filed: 01/28/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 13-41258
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                       January 28, 2015
                                                                 Lyle W. Cayce
             Plaintiff – Appellee,                                    Clerk

v.

ESTEVAN OCHOA-GOMEZ,

             Defendant – Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas



Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
      Estevan Ochoa–Gomez (Defendant) challenges a two-level adjustment
that the district court applied to his sentence for having exercised an
aggravating role in the convicted offense.      Because the record plausibly
supports a finding that Defendant exercised management responsibility over
the property, assets, or activities of a criminal organization—actions which our
Court, sitting en banc, has held may warrant an aggravating role adjustment
pursuant to § 3B1.1(c) of the United States Sentencing Guidelines—we
AFFIRM the district court’s judgment.
     Case: 13-41258   Document: 00512918954     Page: 2   Date Filed: 01/28/2015


                                 No. 13-41258

                                       I.
       This case arises out of a drug operation in which Defendant and others
transported crystal methamphetamine from Mexico into the United States.
According to the Presentence Report (PSR), the transactions at issue began in
early 2012, but Defendant did not become involved until after the first two
transactions were complete.      Initially, his co-defendant, Raymundo Jose
Cabrera–Parades (Cabrera), and Cosme Nunez–Aviles (Nunez), an unindicted
co-conspirator, met with an undercover officer in April 2012 to discuss the
details for delivering crystal methamphetamine to a buyer in Atlanta, Georgia.
At a second meeting between these individuals, Nunez told the officer that the
delivery to Atlanta would be a test run and that the organization that Nunez
and Cabrera were a part of had “an unlimited supply of crystal
methamphetamine and marijuana.” He also told the officer that he knew of
two other individuals who wanted to transport large quantities of marijuana
to Houston and Dallas, Texas, one of whom was later identified as “Estevan”
(Defendant’s first name). Nunez and Cabrera, along with an unidentified,
unindicted co-conspirator, completed the first transaction with the undercover
officer.
       Over the subsequent weeks, Cabrera, accompanied by Nunez and other
co-conspirators, met with the undercover officer to discuss additional deliveries
to cities in the United States. It was not until June 2012, after Nunez elected
to remain in Mexico and a fourth co-conspirator was arrested by the
investigating officers, that Defendant began participating in the negotiations
alongside Cabrera. Defendant and Cabrera met with the undercover officer to
negotiate the delivery of specific quantities of crystal methamphetamine to
Houston, Texas, and marijuana to a location in Alabama. They both attended
subsequent meetings with the officer but no transactions materialized.


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                                  No. 13-41258

      In October 2012, Cabrera again spoke with the undercover officer about
a potential delivery. Defendant did not attend the meeting because he was
“busy wrapping the crystal methamphetamine.” Cabrera represented to the
officer that he and Defendant had 12 kilograms of crystal methamphetamine
that needed to be delivered, 8 kilograms of which belonged to Defendant and
Cabrera. Later, Cabrera and Defendant met the officer in a parking lot to
exchange the drugs. Cabrera arrived first, and after talking to the officer for
a short while, Defendant arrived in a separate vehicle with the drugs. They
made the exchange and then left the scene in their separate vehicles. The next
day, Cabrera, without Defendant, met with the undercover officer to discuss
the final details for the delivery and, upon being asked, explained that he and
Defendant had wrapped the drugs themselves. A few days later, Cabrera and
Defendant discussed another potential delivery with the undercover officer.
After the meeting concluded, agents from the Drug Enforcement Agency
arrested both Cabrera and Defendant.
      In light of the above facts, the PSR describes Defendant’s role in the
conspiracy as “helping facilitate the transportation of narcotics.” Based on the
testimony of one of the agents:
      [Defendant was] very knowledgeable in the operations within the
      organization.   Both [Cabrera] and [Defendant] knew when
      narcotics would be imported and released to their possession.
      Further, they were responsible for storing the narcotics prior to
      coordinating the transportation further north. In addition, they
      would obtain the funds that were used to hire/pay the transporters.
According to the PSR, Defendant wrapped and delivered the crystal
methamphetamine given to the undercover officer at the October 2012
meeting. He also participated in negotiating the ultimate delivery of those
drugs.




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                                 No. 13-41258

      Based on these facts, the government charged Defendant with three
counts of drug-related offenses. Pursuant to a plea agreement, Defendant
pleaded guilty to the third count, possession with intent to distribute 500
grams or more of crystal methamphetamine, under 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii) and 18 U.S.C. § 2. The Sentencing Guideline corresponding
with Defendant’s crime is U.S.S.G. § 2D1.1(a)(5). Under this Guideline, based
on the amount and quality of the crystal methamphetamine involved,
Defendant’s base offense level was 38.      In addition, the probation officer
recommended a four-level adjustment pursuant to § 3B1.1(a) for Defendant’s
aggravating role in the offense. Defendant objected to the facts in the PSR and
the adjustment on the basis that the PSR does not support a finding that he
“exercised a leadership or managerial role.” The district court thought that
“some adjustment should be made” but, because Defendant’s role in the offense
was “not quite as bad” as Cabrera’s, the court applied only a two-level
adjustment pursuant to § 3B1.1(c). The district court indicated that because
Defendant had duties (wrapping and driving) typically assigned to people “at
the top” and participated in a transaction that was coordinated over a long
period of time, the adjustment was warranted. The district court did not
specify which of the four roles in § 3B1.1(c) (“organizer, leader, manager, or
supervisor”) Defendant had exercised.
      The district court also applied a two-level enhancement (not at issue in
this appeal) pursuant to U.S.S.G. § 2D1.4(b)(5) for importing the crystal
methamphetamine from Mexico and a three-level reduction for acceptance of
responsibility. Based on all of the adjustments, Defendant’s total offense level
was 39. Given his criminal history category of I, the recommended sentencing
range under the Guidelines was 262–327 months. The district court sentenced
Defendant to 262 months’ imprisonment. Without the two-level adjustment,


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                                  No. 13-41258

Defendant’s offense level would have been 37, corresponding to a Guidelines
range of 210–262 months. Defendant appealed his sentence on the basis that
the district court clearly erred in determining that he exercised an aggravating
role in the offense and imposing the related two-level adjustment.
                                       II.
      District courts, while not bound by the Sentencing Guidelines, “must
consult the Guidelines and take them into account when sentencing,” and
appellate courts “review sentencing decisions for unreasonableness.” United
States v. Booker, 543 U.S. 220, 260 (2006). “[A] district court’s interpretation
or application of the Sentencing Guidelines is reviewed de novo, while its
factual findings are reviewed for clear error.” United States v. Hernandez–
Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (internal quotation marks omitted)
(citing United States v. Turner, 319 F.3d 716, 725 (5th Cir.2003)).
      Whether a defendant exercised an aggravating role as an organizer,
leader, manager, or supervisor for purposes of an adjustment under U.S.S.G.
§ 3B1.1(c) is a finding of fact reviewed for clear error.       United States v.
Gonzales, 436 F.3d 560, 584 (5th Cir. 2006); see also United States v. Akins,
746 F.3d 590, 609 (5th Cir. 2014) (conducting clear error review for a factual
finding under § 3B1.1(b)). A factual finding that is plausible based on the
record as a whole is not clearly erroneous. United States v. Zuniga, 720 F.3d
587, 590 (5th Cir. 2013). In making the factual determinations pursuant to
the Sentencing Guidelines, a district court may base its findings on “any
information that has sufficient indicia of reliability to support its probable
accuracy.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal
quotation marks omitted).       A PSR generally bears sufficient indicia of
reliability for this purpose. United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012).


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                                      No. 13-41258

                                           III.
       The Sentencing Guidelines instruct a district court to increase a
defendant’s offense level if he played an aggravating role in the offense at issue.
U.S.S.G. § 3B1.1. The guideline recommends three different adjustment levels
depending on the scope of the criminal activity and the degree of control
exercised by a defendant. U.S.S.G. § 3B1.1(a)–(c). If the criminal activity
involves fewer than five participants and is not otherwise extensive, then the
district court should increase a defendant’s sentence by two levels if he
exercised any of the four aggravating roles listed—organizer, leader, manager,
or supervisor. U.S.S.G. § 3B1.1(c)
       The application notes accompanying a Guideline generally bind federal
courts unless they are inconsistent with the text of the Guideline. United
States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005); United States v.
Ho, 311 F.3d 589, 610 (5th Cir. 2002) (citing Stinson v. United States, 508 U.S.
36 (1993)). To warrant an adjustment under any of the three subsections, the
application notes for § 3B1.1 state that the defendant “must” be an organizer,
leader, manager, or supervisor “of one or more other participants.” 1 U.S.S.G.
§ 3B1.1, cmt. n.2. Moreover, the notes advise that an upward departure 2 may



       1A “participant” includes anyone “who is criminally responsible for the commission of
the offense.” U.S.S.G. § 3B1.1, cmt. n.1. This can include individuals not convicted, but
excludes undercover officers. Id.

       2 A district court may depart from a Guideline-specified sentence only when it finds
“an aggravating . . . circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the [G]uidelines that should
result in a sentence different from that described.” 18 U.S.C. § 3553(b). There are two
different kinds of departures in the Sentencing Guidelines:

       “The first involves instances in which the [G]uidelines provide specific
       guidance for departure by analogy or by other numerical or non-numerical
       suggestions. The Commission intends such suggestions as policy guidance for
       the courts. The Commission expects that most departures will reflect the

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                                       No. 13-41258

be warranted for a defendant who did not exercise control over another
participant but “nevertheless exercised management responsibility over the
property, assets, or activities of a criminal organization.” U.S.S.G. § 3B1.1,
cmt. n.2. Our court, sitting en banc, has construed Note 2 to allow application
of an adjustment, even where a defendant did not exercise control over another
participant, if he exercised management responsibility over the property,
assets, or activities of a criminal organization. United States v. Delgado, 672
F.3d 320, 345 (5th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 525 (2012). 3 The
court in Delgado explained that because the defendant “control[led] a large
quantity of drugs and the truck used to transport them,” and “made
arrangements for their transportation and delivery,” the district court’s finding
was not clearly erroneous. Id. According to Delgado, a § 3B1.1 adjustment
may be based on either control over people or management of assets. Id. We
have followed and applied Delgado’s interpretation of § 3B1.1, cmt. n.2. See



       suggestions and that the courts of appeals may prove more likely to find
       departures “unreasonable” where they fall outside suggested levels.”

U.S.S.G. Ch.1, Pt.A, Subpt. 1 at 7 (2014). The second type rests “on grounds not mentioned
in the [G]uidelines.” Id. Note 2 contains the first type, recommending a departure where a
defendant “exercised management responsibility over the property, assets, or activities of a
criminal organization.” U.S.S.G. § 3B1.1, cmt. n.2.

       3 Defendant did not cover the asset management issue in his initial brief or file a reply
brief responding to the government’s arguments on this point. In its brief, the government
cited Delgado regarding the standard of review on appeal, but did not discuss its
interpretation of § 3B1.1. The government did, however, argue that an adjustment may still
be applied where a defendant “assumes a supervisory role, even in the absence of specific
testimony that the defendant supervised a specific person on a specific date or in a specific
task.” For support, it cited a published case that broadly found an aggravating role and an
unpublished case released before Delgado that relied on evidence of asset management to
affirm a sentence that included a § 3B1.1(c) adjustment. See United States v. Njoku, 737 F.3d
55, 77–78 (5th Cir. 2013); United States v. Huerta–Ortega, 442 F. App’x 953, 955 (5th Cir.
2011).




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                                  No. 13-41258

United States v. St. Junius, 739 F.3d 193, 208–09 (5th Cir. 2013) (holding that
the district court’s finding of an aggravating role was plausibly supported by
evidence that the defendant signed important documents, including paychecks,
and sent correspondence as the owner of an organization engaged in health
care fraud). Likewise, we are bound by Delgado. See United States v. Traxler,
764 F.3d 486, 489 (5th Cir. 2014) (explaining that under our rules, en banc
precedent and earlier panel holdings bind future panels of our court).
      Therefore, the question before us is whether the record plausibly
supports the district court’s finding that Defendant exercised an aggravating
role in his offense either by exercising control over another participant or
exercising management responsibility over property, assets, or activities.
U.S.S.G. § 3B1.1(c), cmt. n.2; see Delgado, 672 F.3d at 344–45.            Having
reviewed the evidence in the PSR and cases applying § 3B1.1, we are persuaded
that the district court did not err in applying the two-level increase. Even
assuming arguendo that Defendant is correct that the record lacks any
evidence that he exercised control over another participant in the offense, it
does contain evidence that he “exercised management responsibility over the
property, assets, or activities of [the] criminal organization.”
      The PSR describes Defendant’s role as: “helping facilitate the
transportation    of   narcotics”;   “deliver[ing]   the    15.4   kilograms     of
methamphetamine to the [undercover officer]”; “participating in the wrapping
of his and [Cabrera’s] 8 kilograms of crystal methamphetamine”; and jointly
with Cabrera “meeting the [undercover officer] at a local restaurant” for the
exchange.    Later in the report, Defendant’s role is also described as:
“coordinating the transportation of narcotics”; “negotiat[ing] the price for the
transportation of narcotics”; “deliver[ing] the narcotics”; and providing 8




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                                 No. 13-41258

kilograms of crystal methamphetamine jointly owned by Defendant and
Cabrera.
        At the sentencing hearing, the district court concluded that these are
tasks typically performed by those “at the top” in a narcotics organization. The
district court also expressed concern that Defendant’s involvement extended
over a number of months and that he had the important responsibility of
wrapping and then delivering the crystal methamphetamine to the undercover
officer at the October 2012 exchange. Like the defendants in Delgado and St.
Junius, Defendant played an integral role in the transaction at issue and
exercised management responsibility over the property, assets, and activities
of the criminal organization. He assisted in negotiations, contributed eight
kilograms of jointly-owned crystal methamphetamine, stored and packaged
the drugs, delivered them to the undercover officer, and indicated a willingness
to supply more drugs in the future. Based on this evidence, the district court
could    plausibly   determine   that    Defendant   “exercised   management
responsibility over the property, assets, or activities of a criminal
organization,” which, in turn, supports a finding that Defendant exercised an
aggravating role pursuant to § 3B1.1(c).
                                        IV.
        For the reasons stated above, we AFFIRM.




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                                       No. 13-41258

EDWARD C. PRADO, Circuit Judge, joined by ELROD, Circuit Judge,
concurring.
       The opinion correctly applies controlling precedent from this circuit and
I concur. However, an apparent error has crept into the controlling authority,
United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc). Delgado
appears to have conflated an “adjustment” and an “upward departure” for
purposes of Application Note 2 to United States Sentencing Guidelines
(U.S.S.G.) § 3B1.1. See 672 F.3d at 344–45. This issue merits en banc review.
       Following Delgado, Fifth Circuit precedent expressly permits a district
court to apply a two-level sentence adjustment under § 3B1.1(c) based on
evidence that the defendant “exercised management responsibility over the
property, assets, or activities of a criminal organization.” See id. (quoting
U.S.S.G. § 3B1.1 cmt. n.2) (internal quotation marks omitted). This appears
to contrast with the plain text of Application Note 2, 1 which requires evidence
of supervising or managing other participants to support the adjustment. 2 See
U.S.S.G. § 3B1.1 cmt. n.2 (“To qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager, or supervisor of one
or more other participants.” (emphases added)).                       Application Note 2


       1 Application Note text bears “controlling weight” unless it is “plainly erroneous or
inconsistent with the guidelines.” United States v. Urias–Escobar, 281 F.3d 165, 167 (5th
Cir. 2002).

       2 This apparent error is further illuminated by the history of § 3B1.1. The Guideline
was amended in 1993 to include Note 2 in order to resolve a circuit split over the same
interpretation at issue here: whether management of assets warranted an adjustment.
U.S.S.G. app. C, amend. 500; compare, e.g., United States v. Carroll, 893 F.2d 1502 (6th Cir.
1990) (requiring a degree of control over other participants), United States v. Fuller, 897 F.2d
1217 (1st Cir. 1990) (same), United States v. Mares–Molina, 913 F.2d 770 (9th Cir. 1990)
(same), and United States v. Fuentes, 954 F.2d 151 (3d Cir. 1992) (same), with United States
v. Chambers, 985 F.2d 1263 (4th Cir. 1992) (holding that exercising control over other
participants is one factor among many that should be considered, not a requirement for
applying the adjustment).
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                                           No. 13-41258

recommends only an upward departure in cases where the defendant managed
the organization’s property or activities. See id. (“An upward departure may
be warranted, however, in the case of a defendant who . . . exercised
management responsibility over the property, assets, or activities of a criminal
organization.” (emphases added)).
       The distinction between an adjustment and a departure is not merely
semantic:     an    adjustment       affects   the     defendant’s     offense    level    and
corresponding guideline range, see U.S.S.G. § 1.1(a), while a departure involves
the “imposition of a sentence outside the applicable guideline range or of a
sentence that is otherwise different from the guideline sentence,” U.S.S.G.
§ 1.1 cmt. n.1(E). See, e.g., United States v. Ramos–Paulino, 488 F.3d 459, 464
(1st Cir. 2007) (“Although both may lead to similar outcomes, there is an
important structural distinction between sentencing enhancements and
sentencing departures.”). Indeed, we initially joined the majority of circuits in
holding that it is error for a district court to apply a § 3B1.1 adjustment, rather
than a departure, when the evidence establishes the defendant’s management
or supervisory role over property or activities alone. See United States v. Jobe,
101 F.3d 1046, 1068 (5th Cir. 1996). In Delgado, we sub silentio abrogated
Jobe and diverged from at least nine other circuits. 3


       3 See United States v. Ramos–Paulino, 488 F.3d 459, 464 (1st Cir. 2007) (“[Application
Note 2] makes it pellucid that the management of criminal activities (as opposed to the
management of criminal actors) may ground an upward departure but not an upward role-
in-the-offense adjustment.”); United States v. Patasnik, 89 F.3d 63, 70 (2d Cir. 1996)
(discussing Application Note 2 and its textual distinction between adjustments and
departures); United States v. Steffen, 741 F.3d 411, 415 (4th Cir. 2013) (“[I]n order to qualify
for the role enhancement, the government must present evidence that the defendant managed
or supervised participants, as opposed to property . . . .” (emphasis added) (internal quotation
marks omitted)); United States v. Gort–Didonato, 109 F.3d 318, 321 (6th Cir. 1997) (“Where
the defendant exerts control over at least one participant in a supervisory, managerial,
leadership, or organizational capacity, a sentence enhancement is required under § 3B1.1.
Whereas, where a defendant does not exercise control over an individual but over property,
assets, or activities, an upward departure may be warranted.”); United States v. Fones, 51

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                                           No. 13-41258

       Importantly, there is little to indicate that we intended this
interpretation of the Guidelines. On its face, nothing in Delgado purports to
overrule Jobe or create a circuit split, and its holding on the § 3B1.1 issue
appears on the final page of a twenty-six page opinion. Nevertheless, we are
bound by this ruling. See United States v. St. Junius, 739 F.3d 193, 208–09
(5th Cir. 2013) (citing Delgado and applying its interpretation of Application
Note 2 to uphold an adjustment based solely on management of property,
assets, or activities). Given that our precedent appears to conflict with the
plain language of Application Note 2, sub silentio overruled Jobe, and places
this circuit at odds with several other circuits, the issue merits en banc review.




F.3d 663, 668 (7th Cir. 1995) (“[A]s indicated by the note, the method of sentence
enhancement varies depending upon exactly what the defendant has control over. . . . This
note now requires that a defendant have control over at least one participant . . . in order to
be subject to a sentencing enhancement under § 3B1.1.”); United States v. McFarlane, 64 F.3d
1235, 1238 (8th Cir. 1995) (“[I]f McFarlane’s sentence was to be increased, it would have to
be by means of an upward departure as McFarlane ‘did not organize, lead, manage, or
supervise another participant, but [instead] exercised management responsibility over the
property, assets, or activities of a criminal organization.’” (quoting U.S.S.G. app. C, amend.
500)); United States v. Bonilla–Guizar, 729 F.3d 1179, 1186 (9th Cir. 2013) (“[S]ome degree
of control or organizational authority over others is required in order for section 3B1.1 to
apply.” (internal quotation marks omitted)); United States v. Glover, 179 F.3d 1300, 1303
(11th Cir. 1999) (“We now squarely decide that a section 3B1.1 enhancement cannot be based
solely on a finding that a defendant managed the assets of a conspiracy. A finding involving
just asset management may support only an upward departure.”); United States v. Graham,
162 F.3d 1180, 1185 n.6 (D.C. Cir. 1998) (“An upward departure, as opposed to an adjustment,
may be warranted for offenders who manage property, assets, or activities rather than
people.” (citing U.S.S.G. § 3B1.1 cmt. n.2)). But see United States v. Parker, 553 F.3d 1309,
1322 (10th Cir. 2009) (allowing the adjustment on either basis).


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