                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-2009

USA v. James Velez
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2002




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"USA v. James Velez" (2009). 2009 Decisions. Paper 1712.
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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                  No. 08-2002
                                 ____________

                       UNITED STATES OF AMERICA

                                       v.

                                JAMES VELEZ,
                                         Appellant

                                 ____________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                           (D.C. No. 2-05-cr-00236-001)
                 District Judge: Honorable Joseph A. Greenaway
                                   ____________

                   Submitted Under Third Circuit LAR 34.1(a)
                                March 3, 2009

    Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.

                            (Filed: March 23, 2009)

                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       James Velez appeals his sentence, arguing that the District Court erred by

imposing a two-level enhancement under § 3B1.1 of the United States Sentencing

Guidelines. We will affirm.

                                              I.

       Because we write exclusively for the parties, we recount only those facts essential

to our decision.

       Velez pleaded guilty to one count of conspiracy to commit aiding, assisting,

procuring, counseling, or advising a tax fraud, in violation of 18 U.S.C. § 371, and 13

counts of assisting in the preparation and presentation of false income tax returns, in

violation of 26 U.S.C. § 7206. The District Court calculated Velez’s advisory Guidelines

range to be 33 to 41 months imprisonment. After finding that Velez had a supervisory

role in the conspiracy, however, the District Court applied a two-point enhancement

under § 3B1.1 of the Guidelines, which increased his advisory imprisonment range to 41

to 51 months. The District Court sentenced Velez to concurrent terms of imprisonment of

41 months on the first count, and 36 months on the remaining counts.

       Velez argues that the District Court incorrectly applied the two-point enhancement

because he did not supervise his co-conspirator, Moustafa El-Golany. We review the

District Court’s factual findings related to sentencing for clear error. United States v.

Grier, 475 F.3d 540, 541 (3d Cir. 2007). A factual finding is clearly erroneous if we are




                                              2
“left with a definite and firm conviction that a mistake has been committed.” United

States v. Lessner, 498 F.3d 185, 199 (3d Cir. 2007).

       Section 3B1.1(c) provides for a two-level enhancement “[if] the defendant was an

organizer, leader, manager, or supervisor in any criminal activity . . . .” The Guidelines

commentary provides that in determining whether the defendant is a leader or organizer,

we must consider: “the exercise of decision making authority, the nature of participation

in the commission of the offense, the recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of participation in planning or

organizing the offense, the nature and scope of the illegal activity, and the degree of

control and authority exercised over others.” USSG § 3B1.1 cmt. 4; see United States v.

Hunter, 52 F.3d 489 (3d Cir. 1995).1 We have stated that a defendant acts as a manger or

supervisor of criminal activity when he “exercises some degree of control over others

involved in the offense.” United States v. Chau, 293 F.3d 96, 103 (3d Cir. 2002) (citation

omitted).

       Here, the District Court found that the two-level enhancement was appropriate

because Velez and El-Golany were not partners in the offense; rather, Velez recruited El-




       1
        Although note 4 of the Guidelines commentary provides instruction on how to
distinguish “a leadership and organizational role from one of mere management or
supervision,” USSG § 3B1.1 n. 4, we have applied this note in determining whether an
“aggravating role enhancement,” including one for a managerial or supervisory role,
should be imposed. See Hunter, 52 F.3d at 492.

                                              3
Golany, and El-Golany “worked for Mr. Velez.” Dist. Ct. Op. at 42. We find nothing in

the record to suggest that this conclusion was erroneous, much less clearly erroneous.

       Velez argues that he did not control El-Golany because El-Golany was free to

bring in as many, or as few, clients as he saw fit. The uncontroverted evidence, however,

shows that Velez was a manager under the factors listed in comment 4. Velez recruited

El-Golany to participate in the tax fraud scheme and to find other clients for his business,

instructed him about what to say, kept the 5% commission for himself while paying El-

Golany only $50 per transaction, and he alone participated in the filing of the tax returns.

This evidence is more than sufficient to prove that Velez had an aggravating role in the

conspiracy, and thus the District Court’s imposition of the enhancement was not clearly

erroneous.

       Because we find that the District Court correctly applied the enhancement, Velez’s

claim that his sentence was procedurally unreasonable must fail as well.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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