                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0348n.06
                             Filed: June 18, 2008

                                           No. 07-5382

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF TENNESSEE
JOSE SALAS,                            )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Defendant Jose Salas (“Salas”) contests the

district court’s application of a three-level sentence enhancement for being a manager or supervisor

of a criminal activity involving five or more people. Salas claims that the district court misapplied

2006 U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3B1.1(b) because there were fewer than

five people involved in his criminal conduct. Salas makes this argument for the first time on appeal

and has therefore forfeited it; accordingly, we review his claim only for plain error. We AFFIRM

the district court’s application of § 3B1.1(b) because Salas signed an Agreed Factual Basis as part

of his plea agreement that stated that there were at least six participants involved in his criminal

conduct. Therefore, we conclude that the district court did not commit plain error.


       *
       The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                                        I. BACKGROUND

       This case involves a drug trafficking operation that ended with a drug bust on May 2, 2006.

According to Jesse Ramzanali (“Ramzanali”), Salas’s brother-in-law, on May 1, 2006, Salas asked

Ramzanali for a favor in exchange for several thousand dollars. On that day, Salas and Ramzanali

drove to East Tennessee, and once there, Ramzanali procured a hotel room at Salas’s expense. On

May 2, Salas informed Ramzanali that he wanted Ramzanali to pretend to be Salas. The plan was

for two men from Texas to give Ramzanali a package of cocaine. After Ramzanali received the

cocaine, buyers were to purchase the drugs, and then the original sellers would return to split the

proceeds of the sale. However, things did not go according to plan; immediately after the buyers

paid Ramzanali $84,000 for the drugs, an undercover agent for the Tennessee Bureau of

Investigation arrested Ramzanali. Salas and his wife, Donna Chambers, were arrested in Texas on

June 19, 2006.

       On May 10, 2006, a grand jury indicted Salas and four other individuals in connection with

the drug bust and the group’s prior drug sales. On August 8, 2006, a grand jury handed down a

superseding indictment consisting of the same charges but adding a sixth defendant to the case. The

first count of the superseding indictment alleged that six individuals, including Salas, “did conspire,

confederate and agree with each other . . . to distribute and to possess with intent to distribute five

(5) kilograms or more of a mixture and substance containing a detectable amount of cocaine, a

Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846,

841(a)(1) and 841(b)(1)(A)” between 2001 and May 2, 2006. Joint Appendix (“J.A.”) at 36-37

(Superseding Indictment at 1-2). The superseding indictment also alleged that five individuals,

including Salas, distributed five hundred grams or more of cocaine on May 2, 2006, and that Salas


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and co-defendant Juan Jacinto aided and abetted in the possession with intent to distribute five

hundred grams or more of cocaine between April 11, 2006 and May 2, 2006.

       On December 4, 2006, Salas pleaded guilty to count one of the superseding indictment. In

connection with his plea agreement, Salas also signed an Agreed Factual Basis, which stated in part:

               From at least 2001 until May 2, 2006, Jose Salas participated with Donna
       Jane Chambers, Juan Jacinto, Jorge Armondo Coreas, Francisco Dubany Zelaya,
       Jesse Cristobol Ramzanali and others in a conspiracy to distribute and possess with
       the intent to distribute over five kilograms of cocaine. Salas and Chambers were
       involved in the distribution of more than fifteen but not more than fifty kilograms of
       cocaine to Dewey Lynn Phillips of Newport, Tennessee in 2005.
               In furtherance of the conspiracy, Salas and Chambers arranged for the
       delivery of four kilograms of cocaine on May 2, 2006, in Sevier County, Tennessee,
       and four kilograms of cocaine were delivered by Ramzanali to a special agent of the
       Tennessee Bureau of Investigation acting in an undercover capacity, the cocaine
       having been delivered to Ramzanali by Coreas, Zelaya and others.

J.A. at 72-73 (Agreed Factual Basis 1-2). Salas, therefore, stated in a signed statement that at least

six individuals were involved in the criminal conduct to which he pleaded guilty. Although the six

individuals implicated in Salas’s Agreed Factual Basis were also indicted in the superseding

indictment, the government moved in February 2007 to dismiss the indictment of one of those

individuals, Francisco Zelaya. The government requested the dismissal because it “believe[d] that

it will be unlikely to meet its burden of proof beyond a reasonable doubt at this time.” J.A. at 110

(Mot. to Dismiss Indictment at 1). The district court dismissed Zelaya’s indictment without

prejudice.

       Prior to Salas’s sentencing, the Probation Office issued a Presentence Investigation Report

(“PSR”) regarding Salas’s recommended sentence. The PSR reiterated the language from the Agreed

Factual Basis and stated that six individuals, including Salas, had conspired to possess with intent

to distribute over five kilograms of cocaine between 2001 and May 2006. The PSR also included


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details about the May 2, 2006 drug bust. The PSR calculated Salas’s base offense level to be 34.

In addition, the PSR recommended the contested three-level enhancement for Salas’s role as a

manager or supervisor under § 3B1.1(b),1 which the government acknowledged it had never

previously considered. The PSR also recommended a three-level reduction for acceptance of

responsibility. Given a criminal history category of I, the PSR calculated Salas’s Guidelines range

to be a term of imprisonment between 151 and 188 months.

       On March 1, 2007 prior to Salas’s sentencing hearing, Salas filed a sentencing memorandum.

The memorandum raised only one objection to Salas’s PSR, that “Mr. Salas does not believe that

he acted as a supervisor or leader in his dealing with codefendant Ramzanali,” and the memorandum

called the enhancement “a misapplication of the supervisor/leader role adjustment.” J.A. at 117

(Sent. Mem.). The district court acknowledged this objection at Salas’s sentencing hearing when

it stated “[t]here is one objection filed by the defendant. The defendant objects to the 3 point

enhancement for being a leader or supervisor . . . .” J.A. at 127 (Hr’g Tr. at 2:16-19). To support

the application of the three-level enhancement, the government presented testimony from Ramzanali

regarding Salas’s role as a supervisor. For instance, Ramzanali testified that he never had contact

with Salas’s suppliers and operated under Salas’s control in that respect. J.A. at 142-43 (Hr’g Tr.,

Ramzanali Test. at 17:16-18:6). On the basis of Ramzanali’s testimony, the district court found “by

a preponderance of the evidence that Mr. Salas arranged this deal and that Mr. Ramzanali acted

under the direction of, under the management of, under the supervision of Mr. Salas in carrying out



       1
         Section 3B1.1 states: “Based on the defendant’s role in the offense, increase the offense
level as follows: . . . (b) If 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,
increase by 3 levels.”

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the transaction.” J.A. at 154-55 (Hr’g Tr. at 29:12-30:4). Thus, the district court agreed with the

PSR’s recommendation; the district court set Salas’s offense level at 34 after applying the § 3B1.1(b)

enhancement and the reduction for acceptance of responsibility.

       Before sentencing Salas, the district court did two other things. First, the district court

considered and granted the government’s motion for a two-level downward departure for substantial

assistance under U.S.S.G. § 5K1.1. This yielded an offense level of 32 and an advisory Guidelines

range of 121 to 151 months of imprisonment. Second, the district court asked Salas whether there

was anything other than the § 3B1.1(b) enhancement that Salas disagreed with, and Salas said there

was not. Without further objections, the district court sentenced Salas to a term of imprisonment of

132 months.

       The § 3B1.1(b) enhancement made Salas ineligible for the two-level safety-valve reduction

he would have received under U.S.S.G. §§ 2D1.1(b)(9) and 5C1.2. Without the supervisor

enhancement, starting with a base offense level of 34 and applying the three-level reduction for

acceptance of responsibility, the two-level safety-valve reduction, and the two-level § 5K1.1

departure, Salas would have qualified for sentencing at level 27 with a Guidelines range of 70 to 87

months. In contrast, with the three-level § 3B1.1 enhancement included, the offense level 32

produced an advisory Guidelines range of 121 to 151 months.

       On March 23, 2007, Salas filed a pro se notice of appeal. On March 26, 2007, Salas’s newly

appointed counsel also filed notice of appeal. Both were timely.

                                          II. ANALYSIS

       On appeal, Salas makes only one argument: “The District Court’s assumption that the

criminal activity involved five or more persons is clearly erroneous in light of the dismissal of the


                                                  5
indictment against Mr. Zelaya, one of the alleged criminally responsible participants, for insufficient

evidence. The dismissal of the indictment left, at most, only four known criminally responsible

participants.” Appellant Br. at 11.

       Generally, “[w]e review de novo the sentencing court’s interpretation of the Sentencing

Guidelines and statutes, and we review for clear error its factual findings.” United States v. Corrado,

304 F.3d 593, 607 (6th Cir. 2002), cert. denied, 537 U.S. 1238 (2003). In the case of U.S.S.G.

§ 3B1.1, however, we have not resolved whether we should review a court’s application of the

section deferentially or de novo. United States v. Lalonde, 509 F.3d 750, 764 (6th Cir. 2007). Yet

as we noted earlier, at sentencing Salas challenged only whether he was a supervisor, not the number

of participants. Because Salas is advancing a new argument not raised at the district court, we will

reverse Salas’s sentence only if he can demonstrate plain error. United States v. Olano, 507 U.S.

725, 731-37 (1993).

       We conclude that the district court did not commit error, let alone plain error, in determining

that there were five or more participants in the criminal activity. We do not consider this to be a

close question: Salas signed an Agreed Factual Basis that listed six individuals involved in the same

criminal activity to which he pleaded guilty. Although Salas attempts to cast this case as one in

which the sentencing judge used judge-found facts to enhance a sentence, the sentencing judge

simply applied facts that Salas had admitted. It is not error for a court to sentence a defendant on

the basis of facts to which the defendant himself admitted. See United States v. Booker, 543 U.S.

220, 244 (2005) (noting that facts admitted by the defendant may be used when sentencing a

defendant beyond what the guilty plea itself would sustain); United States v. Vonner, 516 F.3d 382,

384-85 (6th Cir. 2008) (en banc) (stating that a judge may rely upon facts in a PSR to which a


                                                  6
defendant did not object because they are assumed to be admitted); United States v. Cook, 453 F.3d

775, 777 (6th Cir. 2006) (noting that during sentencing a district court can rely upon facts that the

defendant admitted).

        That the district court dismissed the indictment against Zelaya is of no import. Most

significantly, the Guidelines state that “[a] ‘participant’ is a person who is criminally responsible for

the commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1 cmt. 1

(emphasis added). Thus, when a defendant admits that an individual was a participant, it does not

matter whether that individual is convicted, indicted, or neither. Because Salas admitted that Zelaya

was a participant, Zelaya’s status under the indictment is irrelevant. Furthermore, according to the

Agreed Factual Basis, there were six, not five, participants; even if the dismissal of the criminal

charges against Zelaya had some impact on calculation of the number of participants, there would

still be five or more participants because the defendant himself counts toward the total number of

participants. See, e.g., United States v. Bennett, 291 F.3d 888, 897-98 (6th Cir. 2002).

                                        III. CONCLUSION

        On appeal Salas raised only one argument: that there were fewer than five participants in the

criminal activity to which he pleaded guilty. Salas made this argument for the first time on appeal,

and because it was forfeited, we review only for plain error. Salas signed an Agreed Factual Basis

that conclusively stated that there were five or more participants in the criminal activity. Thus, the

district court did not plainly err either in holding that there were five or more participants or in

applying a three-level enhancement pursuant to § 3B1.1(b). We therefore AFFIRM the district

court’s judgment.




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