                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5202


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ALEJANDRO VILLAREAL,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:07-cr-00195-RJC-4)


Submitted:    October 26, 2009              Decided:   November 6, 2009


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


F. Lane Williamson, GARLITZ & WILLIAMSON, P.L.L.C., Charlotte,
North Carolina, for Appellant.    Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Alejandro   Villareal         was     convicted      by    a    jury     of

conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine, 21 U.S.C. § 846 (2006) (Count

One),    and       conspiracy      to    commit      money     laundering,       18   U.S.C.

§ 1956(h) (2006) (Count Two), and was sentenced to a term of 360

months imprisonment.              He appeals his sentence, arguing that the

district court clearly erred in finding that he was a manager or

supervisor in the conspiracy, U.S. Sentencing Guidelines Manual

§ 3B1.1(b) (2008), and erred in calculating his offense level

under USSG § 3D1.3(a).             We affirm.

                  The   evidence        produced      at   trial      established        that

Villareal was involved in a conspiracy that transported large

amounts of cocaine from Mexico into the Rio Grande Valley area

in Texas and then in tractor-trailer trucks to North Carolina,

Florida, Georgia, New York and Texas for distribution.                                Large

amount       of    currency   —    drug     proceeds       —   were   also   transported

regularly.          Eduardo Saenz oversaw operations in Charlotte, North

Carolina, and Villareal, his long-time friend, assisted him.                              As

part of apparent counter-surveillance efforts, the conspirators

made     a        practice    of    switching          vehicles       frequently      while

transporting drugs or money.                    Because they were in fact under

surveillance for much of the year before Villareal’s arrest,

many     such       vehicle-swaps        were       witnessed    by    law   enforcement

                                                2
agents.      At Villareal’s trial, Yomil Prado and Jesus Balderas

testified that they made trips to destinations in North Carolina

and   South     Carolina        under      the       direction      of    both   Saenz      and

Villareal      during      which       vehicles        were    switched.         They      were

usually paid $2000 per trip, and received the money sometimes

from Saenz and sometimes from Villareal.                            On some trips, both

Saenz and Villareal were present, but frequently only Villareal

made the trip with them.

             Under      USSG         § 3B1.1(b),        a     three-level        enhancement

applies “[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.”          Under

Application Note 2 to § 3B1.1, to qualify for the adjustment, a

defendant must have managed or supervised “one or more other

participants.”          An   upward        departure        may    be    warranted    if    the

defendant      managed          an     organization’s             property,      assets      or

activities.          Id.             The   district         court’s      factual      finding

concerning the defendant’s role in the offense is reviewed for

clear error.         United States v. Sayles, 296 F.3d 219, 224 (4th

Cir. 2002).       The court found that Villareal had a managerial

position      because      he    coordinated           drivers,      paid     the    drivers,

handled large amounts of money, and acted independently of Saenz

at times.       We conclude that the district court did not clearly

err in so finding.

                                                 3
              Villareal’s          two    counts       of   conviction     were    grouped

together for sentencing purposes under USSG § 3D1.2(c).                                 Under

USSG § 3D1.3(a), when counts are grouped together pursuant to

§ 3D1.2(a)-(c), the offense level for the group is the offense

level “for the most serious of the counts comprising the Group,

i.e., the highest offense level of the counts in the Group.”

Accordingly,       the      district       court      determined    that   the    adjusted

offense level for the group was 43, the offense level for Count

Two,    the   money      laundering        offense.         The   district      court    then

varied downward to offense level 42.

              Villareal contends on appeal that the district court

misapplied § 3D1.3, which provides that, when counts are grouped

together under § 3D1.2(c), the offense level for the group is

the offense level for “the most serious of the counts comprising

the Group, i.e., the highest offense level of the counts in the

Group.”       Villareal claims that “the most serious of the counts”

should be taken to mean the count with the highest statutory

maximum.

              However,       the    guideline         explicitly     defines      the   term

“the most serious of the counts comprising the group” as the

count    with    the     highest         offense      level.      Villareal     relies     on

United    States       v.   Brinton,       139       F.3d   718   (9th   Cir.    1998),    as

support for his interpretation, based on the appeals court’s

statement       that     “since      the     [manufacturing         counts]      have     the

                                                 4
potential       to    produce      the       highest         offense       level,       the      group

offense     level         should       be        determined          under       the      guideline

applicable to those offenses.”                        Id. at 722.               However, Brinton

did not address the interpretation of § 3D1.3(a) that Villareal

seeks to advance here.                See United States v. Eversole, 487 F.3d

1024,   1032-33        (6th     Cir.     2007)         (the    Brinton          “court      did     not

calculate       the    respective        offense            levels    .     .    .    nor     did    it

explicitly         hold     that       the        ‘seriousness’             determination            is

controlled by the statutory maximum sentence”).                                      Eversole went

on to reject the interpretation of § 3D1.3(a) urged here by

Villareal and the view that Brinton “tacitly” supported that

view.       Two       other     circuits          have       also     rejected         Villareal’s

interpretation of § 3D1.3(a).                         United States v. Kroeger, 229

F.3d 700, 703-04 (8th Cir. 2000) (“[T]he most serious count is

not the count with the greatest available maximum statutory term

of   imprisonment;         it    is    the        count      with     the       highest       offense

level”); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir.

2003)   (same).           We    find        no    error       in     the     district       court’s

calculation of Villareal’s offense level.                            Because his claims of

error     are      without      merit,           Villareal          is     not       entitled        to

resentencing.

              We      therefore       affirm          the     sentence          imposed     by      the

district    court.         We    dispense          with      oral    argument         because       the

facts   and     legal      contentions           are     adequately         presented         in    the

                                                  5
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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