           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           April 29, 2008

                                       No. 07-30258                   Charles R. Fulbruge III
                                                                              Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

EDGARDO REYES RODRIGUEZ,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:04-CR-293



Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Edgardo Reyes Rodriguez pleaded guilty to conspiracy and drug charges.
He appeals his sentence, arguing that the district court erred by enhancing his
offense level for a managerial or supervisory role in the conspiracy under
U.S.S.G. § 3B1.1(b). For the reasons discussed below, we affirm.
                                    I. Background

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-30258

      On June 30, 2005, Rodriguez and two co-defendants were charged in a
superseding indictment with one count of conspiracy to import into the United
States, to possess on board a vessel arriving in the United States, and to possess
with intent to distribute, five kilograms or more of cocaine in violation of 21
U.S.C. §§ 846, 963, and with one count of possession of five kilograms or more
of cocaine on board a vessel arriving in the United States in violation of 21
U.S.C. §§ 955, 960(b)(1)(B), and 18 U.S.C. § 2. Rodriguez pleaded guilty to both
counts without a plea agreement on February 13, 2006.
      A. Rearraignment
      During his rearraignment, Rodriguez hesitated when the prosecutor read
the factual basis of the plea. The factual basis provided in relevant part that an
individual who worked for Rodriguez delivered an April 2004 shipment of about
128 kilograms of cocaine to Mississippi for distribution, and that Rodriguez
“used five or more individuals as couriers and as distributors for narcotics.” The
proceedings paused while Rodriguez conferred with his lawyer. As counsel later
explained at sentencing, Rodriguez objected to the representations in the factual
basis that other people worked for him. Counsel reassured Rodriguez that he
could contest the issue at sentencing without prejudice from his guilty plea.
Rodriguez then affirmed the factual basis and entered his guilty plea under oath.
      B. Presentence Report
      The Presentence Report (“PSR”) assessed a base offense level of 38 because
the offense involved 150 kilograms or more of cocaine. Pursuant to U.S.S.G. §
3B1.1(a), the base offense level was increased by four levels because Rodriguez
was an organizer or leader of a criminal activity that involved five or more
participants or that was otherwise extensive. After a two-level reduction for
acceptance of responsibility, Rodriguez received a total offense level of 40. That
score, combined with a criminal history category of I, resulted in a guideline
imprisonment range of 292 to 365 months.
      Rodriguez filed several objections to the PSR. Specifically, he objected to

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the four-level increase for his leadership role in the offense, to statements in the
offense conduct section of the PSR suggesting that various people in the drug
operation worked for him, to a sentence in the PSR stating that counsel agreed
that the factual basis is accurate, and to the denial of a safety valve reduction.
      C. February 2007 Sentencing Hearing
      At the sentencing hearing on February 7, 2007, Rodriguez reiterated his
objections to the PSR, particularly the objection regarding the four-level
enhancement for his leadership role in the offense. He disagreed with those
portions of the factual basis which indicated that certain individuals worked for
him. Rodriguez’s counsel explained that he had not understood that Rodriguez’s
guilty plea would mean that he was “necessarily admitting that everything in
that factual basis was accurate.” Counsel stated that “it didn’t really dawn on
me that it was going to become something real super-duper important until I got
the presentence report.”
      In response, the government presented the testimony of Agent Timothy
Suberville, the lead agent of the investigation. Agent Suberville described
Rodriguez as “the individual in the United States who was in charge of
ultimately receiving a load of drugs and then redistributing them to a particular
region.” The government then questioned Agent Suberville about specific events
alleged in the factual basis. Without objection from defense counsel, Agent
Suberville identified more than five individuals in the conspiracy who worked
for Rodriguez as transporters of drugs and money.
      During the cross-examination of Agent Suberville, the district court
interrupted and asked which part of the factual basis Rodriguez challenged,
questioning whether the plea should be invalidated. After conferring with
Rodriguez, counsel answered that Rodriguez admitted that he had joined the
conspiracy “a long time ago” as a diver who retrieved the drugs from the ships
and that he had “progressed to becoming somebody who wound up being able to
get the drugs and, basically, he gave them to somebody else after he got them off

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the ship.” “Then he got into a position where . . . he was given cocaine instead
of money for doing his work as a diver,” and he started selling cocaine. At this
point, the district court stopped counsel and reset the hearing for March 7, 2007,
to allow the parties to “talk a little more about this factual basis.”
      D. March 2007 Sentencing Hearing
      At the March 2007 sentencing hearing, counsel explained that Rodriguez
had questioned the accuracy of the factual basis during rearraignment regarding
the statements that certain individuals had worked for him; that he had told
Rodriguez, “perhaps erroneously,” that his concerns related only to a sentencing
issue, which would be resolved at sentencing; and that his failure to object to the
factual basis on that ground would not “cause him any harm.” The district court
allowed Rodriguez to submit a proffer as to his role in the offense, which
Rodriguez believed would establish that he was not a leader. According to the
proffer, Rodriguez and others pooled their money to obtain and transport drugs
to Mississippi for distribution, and Rodriguez progressed from a diver to a
“holder of money” in the conspiracy.
      After hearing counsel’s proffer, the district court agreed that Rodriguez
was not a leader but determined that Rodriguez had some managerial or
supervisory responsibilities as he got more deeply involved in the transactions.
The district court then asked whether the government wanted to present
evidence to support a four-point enhancement.          Although the government
disagreed “somewhat” with Rodriguez’s characterization of the facts, it stated
that the proffer was “essentially correct.” The government also reiterated that
the “individuals who delivered certain drugs were directed and controlled by”
Rodriguez, and said that it would defer to the district court to determine the
appropriate enhancement level. The district court responded that a three-point
enhancement was warranted in light of the extensive nature of the operation, of
Rodriguez’s pivotal role and increasing responsibilities therein, and of the court’s
determination that Rodriguez’s relationship to his co-conspirators met the

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manager or supervisor standard.
      Because the district court expressly stated that it was relying on the
proffer, and not on the factual basis, for its finding that Rodriguez “evolved into
a managerial/supervisory role in his criminal enterprise,” the court concluded
that there was no need to resolve the dispute regarding the factual basis. The
court partially granted Rodriguez’s objection to the guideline calculation and
sentenced him to 262 months in prison. He appeals.
                                 II. Discussion
      Rodriguez contends that the district court erred by increasing his offense
level for a managerial or supervisory role in the conspiracy under U.S.S.G. §
3B1.1(b) based on his “responsibilities” and on his “pivotal role” in the offense
without finding that he supervised any of his co-conspirators. Alternatively, in
the event that this court relies on the factual basis to support the enhancement,
he argues that his counsel was ineffective at rearraignment in erroneously
advising him to assent to the factual basis despite disagreements.
      A. Sentence Enhancement
      U.S.S.G. § 3B1.1(b) provides that “[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, increase [the offense level] by
3 levels.” Whether Rodriguez was such a manager or supervisor “is a question
of fact which we review under the clearly erroneous standard, giving due regard
to the trial court’s assessment of the credibility of the witnesses.” United States
v. Barreto, 871 F.2d 511, 512 (5th Cir. 1989). “A finding of fact is not clearly
erroneous if it is plausible in light of the record viewed in its entirety.” United
States v. Sherrod, 964 F.2d 1501, 1506 (5th Cir. 1992).
      Here, the district court’s finding that Rodriguez met the manager or
supervisor requirement was plausible in light of the record evidence. Although
Rodriguez attempted in his proffer to characterize his relationship with his co-
conspirators as more of a partnership, he nonetheless identified more than five

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individuals whom the government claimed he directed or controlled. He also
admitted that he progressed to a “holder of money” in the conspiracy from his
early days as a diver. Based on this evidence, the district court did not enhance
Rodriguez’s sentence merely because he was “pivotal” to the conspiracy. Rather,
the court found that Rodriguez “evolved into a managerial/supervisory role in his
criminal enterprise.”
      Rodriguez concedes that during sentencing both he and the government
named specific people who participated in the conspiracy. He argues, however,
that his attempt to characterize his relationship with those people as co-equal
rather than as hierarchical created a factual dispute which the district court
failed to resolve in violation of Federal Rule of Criminal Procedure 32(i)(3)(B).
That rule provides that the sentencing court “must—for any disputed portion of
the presentence report or other controverted matter—rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing . . . .”
FED. R. CRIM. P. 32(i)(3)(B).
      What was at issue here was whether Rodriguez would receive a one-, a
two-, a three-, or a four-point enhancement. After listening to Rodriguez’s
proffer, the district court agreed that Rodriguez was not a leader but determined
that Rodriguez had some managerial or supervisory responsibilities as he got
more deeply involved in the transactions.1 The district court then asked whether
the government wanted to present evidence to support a four-point




      1
          The district court specifically stated:

      I think based on what you have said I mean if it is all, in fact, factually correct,
      I would be inclined to agree with you that that does not demonstrate being a
      leader. But I think he did -- I don’t know if blossoming is the right word,
      blossoming into a managerial/supervisory role . . . . I mean I see him as having
      some managerial/supervisory responsibilities as he got more deeply involved in
      these transactions.

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                                          No. 07-30258

enhancement.2 The government stated that it disagreed “somewhat” with
Rodriguez’s characterization of the facts but that the proffer was “essentially
correct.” The government then reiterated that the “individuals who delivered
certain drugs were directed and controlled by” Rodriguez, and explained that “as
a matter of law[] enhancement of leadership role can be applied if the
respondent establishes that among other things the defendant controlled one
other criminally culpable participant in an extensive operation.” Ultimately,
however, the government deferred to the district court “[w]hether . . . to give
[Rodriguez] one point, two points, three or four . . . .”
      The district court first responded that a three-point enhancement was
appropriate in light of the extensive nature of the operation, of Rodriguez’s
pivotal role and increasing responsibilities therein, and of the court’s
determination that Rodriguez met the manager or supervisor standard.3 Then,
without objection from defense counsel, the district expressly ruled, “[a]ll right,
I am going to partially grant the objection to the guideline calculation. I find


      2
          The district court inquired into the appropriate enhancement level as follows:

              Now, . . . I don’t know what the government’s possession [sic] is on it, but
      that’s where I see it. I think you are correct, and what you represented does not
      constitute organizer or dealer, but it does constitute managerial/supervisory-
      type responsibilities and evolved into a period of time after he got initially
      involved sort of as you say as a diver. So I don’t know how the government
      wants to . . . proceed. If you want to, if your are satisfied that the three-point
      enhancement, we could do it as a calculation as to where it puts him, or if you
      want to go ahead and put on evidence to support the four-point enhancement.
      It is really up to you . . . .
      3
          Specifically, the district court explained:

              Well, I think there is no question it was a very extensive operation and
      a large operation in terms of volume of drugs that were being transported. And
      I do think Mr. Rodriguez’s role was pivotal in that he was, he helped if that’s the
      right term, had increasing responsibilities as he continued. And to say that I
      am satisfied that it is managerial/supervisory, and if the government is not
      interested particularly in pursuing that extra point, then . . . I would have three
      point enhancement, not two, because it is, the operation was very extensive.



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that based on the proffer presented that Mr. Rodriguez is, in fact, evolved into
a managerial/supervisory role in his criminal enterprise but not a
leadership/organizer role.” Based on the foregoing exchange, it is clear that the
district court appropriately ruled on the “controverted matter” of the nature of
Rodriguez’s relationship to his co-conspirators as required by Rule 32(i)(3)(B).
      Nor does the authority upon which Rodriguez relies undermine the district
court’s ruling.   First, in United States v. Turner, this court upheld an
enhancement under U.S.S.G. § 3B1.1 because the defendant “directed another
in his drug trafficking activities.” 319 F.3d 716, 725 (5th Cir. 2003). Similarly
here, and contrary to Rodriguez’s attempt to distinguish himself as a
middleman, the evidence shows that Rodriguez was in charge of receiving drugs
and money and of directing the activities of others in transporting and
distributing them.
      Second, in United States v. Lewis, this court invalidated such an
enhancement because the evidence established that the defendants’ roles were
minor; there was no evidence that the defendants participated in meetings
where arrangements were made or otherwise exercised control or authority over
individuals involved with them in the methamphetamine trade. 476 F.3d 369,
389 (5th Cir. 2007). In the present case, by contrast, the evidence indicates that
Rodriguez assumed a pivotal role in directing the drug and money transporting
activities of his co-conspirators as he took on increasing responsibilities and
progressed from a diver to a “holder of money” in the transactions. Accordingly,
the district court’s finding that Rodriguez was a manager or supervisor under
U.S.S.G. § 3B1.1(b) was not clearly erroneous.
      B. Ineffective Assistance of Counsel
      Alternatively, Rodriguez alleges that his counsel was ineffective at
rearraignment in erroneously advising him to assent to the factual basis despite
his disagreements with portions concerning various people working for him. The
district court explicitly stated, however, that it was relying on the proffer, and

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not on the factual basis, for its finding that Rodriguez was a manager or
supervisor; and this court, too, has reached its determination on the
enhancement issue without reliance on the factual basis. As a result, Rodriguez
was not bound by the factual basis and cannot show any prejudice arising from
his attorney’s performance. See Strickland v. Washington, 466 U.S. 668, 687
(1984) (holding that a defendant must show prejudice resulting from counsel’s
deficient performance to prevail on an ineffective-assistance claim).
                               III. Conclusion
      Finding no clear error in the district court’s application of U.S.S.G. §
3B1.1(b) to Rodriguez’s sentence, we AFFIRM.




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