                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            MAR 26 2001
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 00-5034
                                                     (D.C. No. 98-CR-172-003-K)
 RUBEN CUEVAS, a/k/a Harley,                                (N.D. Okla.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and BRISCOE, Circuit Judges.


      Defendant-Appellant Ruben Cuevas appeals the district court’s decision to

impose a three-level enhancement for being a “manager” or “supervisor” pursuant

to United States Sentencing Guidelines § 3B1.1(b). We find that the district

court’s decision was not clearly erroneous, and thus we AFFIRM. Because we

affirm the enhancement under U.S.S.G. § 3B1.1, we need not reach the second

issue Cuevas presents for appeal. (See Aplt. Br. at 1, 5 (conceding Issue II (drug

quantity) as moot if this court affirms Issue I).)

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                 BACKGROUND

      Ruben Cuevas (a.k.a. “Harley”) pled guilty to participating in a drug

conspiracy to possess with intent to distribute marijuana in excess of 1,000

kilograms. On the basis of testimony from FBI Special Agent Keith Kohne, the

district court concluded that Cuevas exercised supervisory discretion within the

conspiracy and controlled at least one other participant. The district court’s

finding that Cuevas was a “manager” or “supervisor” for purposes of U.S.S.G.

§ 3B1.1 is factual and thus is reviewed for clear error. See United States v. Cruz

Camacho, 137 F.3d 1220, 1223-24 (10th Cir. 1998) (noting and resolving an

intra-circuit split on the question of whether a finding of “organizer” or “leader”

under § 3B1.1 is factual (and thus reviewed for clear error) or legal (and thus

reviewed de novo)); see also United States v. Spears, 197 F.3d 465, 468 (10th Cir.

1999) (following Cruz Camacho and reviewing for clear error); United States v.

Tagore, 158 F.3d 1124, 1130 (10th Cir. 1998) (same).

      In approximately 1994, Jorge Hernandez-Mata and Manuel Pena Garcia

began a large-scale marijuana distribution network that moved thousands of

pounds of marijuana from Mexico through Texas and to the upper-Midwest, e.g.,

central Michigan, northern Indiana, and Illinois. The Mata-Garcia organization

involved about twelve people, including Cuevas. There were three stages to

moving the marijuana from producer to consumer: (1) transporting it from Mexico


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to Waller, Texas (near Houston); (2) packaging and transporting it from Texas to

the distribution states; and (3) distributing it and collecting the money from sales.

For stage two, couriers would either fly shipments from small airfields in Texas to

others in Michigan or drive the shipments north using tractor-trailer trucks.

Flights would carry two- to three-hundred pounds, while typical truck-loads

would move two-hundred fifty pounds (93.25 kilograms). At the time the

organization was in business, marijuana was selling in the upper-Midwest for

about $500 - $700 per pound. Thus, a shipment of two-hundred fifty pounds

could generate about $150,000 (250 x $600).

      Cuevas began working for the Mata-Garcia organization in early to mid-

1997. But see Vol. III at 7-8 (stating that in January or February 1996 Severiano

Aguilar introduced Cuevas to pilot-courier Steven Moore as Moore’s “connection

or the person [Moore] will be contacted by for further trips”). The record reveals

that Cuevas had several responsibilities. First, when marijuana would arrive in

Texas from Mexico, either Cuevas or Hernandez-Mata would receive it. Either

one or both of them would then re-weigh and re-package it. They would wrap it

in plastic wrap, put it in suitcases, and place other things in the suitcases to try to

disguise the smell. Then either Cuevas or Hernandez-Mata would pay those who

helped package the marijuana for shipment. Marcos Perez was one of those

workers who did the packaging.


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      Once the shipments were ready for transport, often Cuevas would call co-

conspirator Steven Moore, a pilot, and, using code words, communicate where

and when the shipment was to be picked up and where it was to be delivered.

Moore flew about fifteen trips from Texas to Lansing, Michigan, each time

carrying approximately two- to three-hundred pounds (74.6 to 111.9 kilograms) of

marijuana. Cuevas initiated every conversation with Moore; the only time Moore

called Cuevas was when Moore was responding to a page from him. During the

time the Government had a wiretap on Moore’s phone, the FBI overheard about

ten conversations between Cuevas and Moore and only one between Hernandez-

Mata and Moore. Except for Moore’s first flight, which occurred before Cuevas

had joined the organization, Cuevas paid Moore for his work.

      Cuevas was also involved in the final leg of distribution: picking up the

shipments when they arrived in Michigan, distributing them to local dealers, and

collecting money earned on the sales. From Texas, Cuevas would fly commercial

airlines to Michigan. Pilots, like Moore, would contact Cuevas once they arrived

in Michigan. Cuevas would call co-conspirators to tell them when and where a

shipment would arrive and where to deliver it. Moore reported that Cuevas would

decide, in cooperation with salespersons in the area, where shipments would be

distributed. Cuevas would also collect and re-count the money earned from sales.

Normal collections ranged from thirty- to fifty-thousand dollars in cash. After


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being counted, the money would be boxed and sealed. It would then be shipped

back down to southern Texas by means of one of the organization’s couriers.

      During 1997 to 1998, Marcos Perez worked for the Mata-Garcia

organization in and around Houston, Texas. Perez packaged and loaded the

marijuana for shipment north. According to Special Agent Kohne, Perez knew

and took instructions from Cuevas.

      Co-conspirator Gilberto Quesada was involved in at least seven tractor-

trailer deliveries to Michigan, each load carrying about two-hundred fifty pounds

(93.25 kilograms). Quesada’s job was to collect proceeds from the sale of

marijuana in Lansing, Michigan. Cuevas was Quesada’s contact with the Mata-

Garcia organization. On many occasions when Quesada collected the revenue,

Cuevas accompanied him and was the one actually handling the money.

      In June 1998, Missouri Highway Patrol discovered 561 pounds of marijuana

in a tractor-trailer truck being driven by Hector Melchor. Melchor admitted that

he had picked up the marijuana in Houston, Texas, and was to be paid $10,000

upon delivery to Chicago, Illinois. Three to four months later, Cuevas, Moore,

Mata, Garcia, and others had dinner at Jamil’s Restaurant in Tulsa, Oklahoma.

They discussed Melchor’s arrest and how to provide him with legal

representation.




                                       -5-
      In the fall of 1998, police obtained a warrant to search the home of co-

conspirator Victor Carlos Riojas-Valadez. Police found Valadez hiding in the

basement with about fifty pounds of marijuana. Police stopped a car, driven by

co-conspirator William Mills, which was leaving Valadez’s house when the police

arrived to search. Cuevas was the passenger in Mills’s car. A search of the car

turned up about $66,000: $65,000 in a bag at Cuevas’s feet and over $1000 in

Cuevas’s pocket. To the police officers, Cuevas called this money “pocket

change.”

      Special Agent Kohne related a statement from Brad Renville, a pilot-

courier, saying that Cuevas was the contact-person for couriers upon arriving in

Michigan. According to Kohne, an FBI wiretap confirmed that Cuevas gave

Renville “command and control communication” regarding drug deliveries.

Renville stated that, in his opinion, Cuevas was “a step above Steven Moore in

the chain of command.”

      Special Agent Kohne recounted how everyone in the Mata-Garcia

conspiracy knew Cuevas, either by his name or by the nickname “Harley,” and

they recognized Cuevas’s picture on sight. In response to questioning from the

bench, Kohne opined that, in his experience, only persons who are “well-trusted,

well-thought of in the organization” collect and count the money from drug sales.

Finally, Kohne testified, over defense counsel’s objection, that, in his opinion,


                                         -6-
Cuevas “fit in right under Jorge Hernandez-Mata, inasmuch as he was the one that

would be there instead of Jorge Hernandez-Mata when he was not present.”



                                  DISCUSSION

      The burden rests on the Government to prove by a preponderance of the

evidence the facts necessary to establish defendant’s managerial role under

U.S.S.G. § 3B1.1. See United States v. Cruz Camacho, 137 F.3d 1220, 1224 (10th

Cir. 1998). We review for clear error the sentencing court’s finding that a

defendant was a “manager” or “supervisor” of criminal activity involving five or

more participants. See id. at 1223-24. It is undisputed that the criminal drug

conspiracy of which Cuevas was a part involved five or more participants.

      Cuevas challenges the district court’s finding that he was a manager or

supervisor, contending instead that he played merely a clerical or administrative

role. A supervisor is “one who exercised some degree of control over others

involved in the commission of the offense or must have been responsible for

organizing others for the purpose of carrying out the crime.” United States v.

Allemand, 34 F.3d 923, 931 (10th Cir. 1994) (alterations omitted) (citing United

States v. Roberts, 14 F.3d 502, 524 (10th Cir. 1993) (stating that a manager or

supervisor must have “decision-making authority or control over a subordinate”);

United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990) (“Key determinants


                                        -7-
of the applicability of § 3B1.1 are control or organization . . . .”)). “[T]he

gravamen of [§3B1.1] is control, organization, and responsibility for the actions

of other individuals . . . .” United States v. Anderson, 189 F.3d 1201, 1211 (10th

Cir. 1999). To qualify as a manager or supervisor under § 3B1.1 a defendant

need manage or supervise only one participant. See Cruz Camacho, 137 F.3d at

1224.

        The district court did not clearly err in rejecting Cuevas’s contention that

he played merely a clerical or administrative role and finding instead that he was

a manager or supervisor for purposes of § 3B1.1(b). The court found that, at the

least, Cuevas controlled Perez. Furthermore, the court found that there was also

evidence that Cuevas controlled Moore and Quesada, too, and that he certainly

exercised management responsibility over property assets and other activities of

the criminal organization.

        There is ample support for these findings. When a marijuana shipment

would arrive from Mexico, Cuevas would often receive, weigh, and package it for

further transport north. Cuevas instructed and paid Perez for his work at this

stage. Cuevas would contact Moore, the principal pilot-courier, and tell him

when and where to pick up a shipment, and where to deliver it. Although there

were conflicting statements as to whether Cuevas ranked above Moore in the

organization, the district court could certainly have concluded that he did.


                                          -8-
Cuevas paid Moore and controlled virtually all the information flowing from the

organization to Moore. Finally, when the marijuana arrived in Michigan, Cuevas

directed co-conspirators, like Quesada, as to when and where to pick it up and

where and to whom to deliver it. In addition, Cuevas was responsible for

collecting and counting the sales proceeds.

      Cuevas’s involvement mirrors the sort of control and authority we have

found to be sufficient in other cases. For example, in United States v. Green, 175

F.3d 822, 833 (10th Cir. 1999), we found that the district court did not err in

giving a § 3B1.1(b) “manager” enhancement based on evidence that the defendant

was the “gatekeeper to the money,” distributed the drug for further distribution,

and “inform[ed] others as to what steps they should take for transmission of the

money back to California [the organization’s headquarters].”

      Therefore, we conclude that the district court did not clearly err when it

found Cuevas to be a “manager” or “supervisor” under U.S.S.G. § 3B1.1(b).

Consequently, we AFFIRM.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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