                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0980n.06

                                            No. 13-1235                                   FILED
                                                                                    Nov 20, 2013
                             UNITED STATES COURT OF APPEALS
                                                                                DEBORAH S. HUNT, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
JUAN JOSE MORALES-MARTINEZ,                            )       COURT FOR THE WESTERN
                                                       )       DISTRICT OF MICHIGAN
       Defendant-Appellant.                            )
                                                       )
                                                               OPINION



Before: DAUGHTERY, KETHLEDGE and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Juan Jose Morales-Martinez (Defendant-

Appellant) appeals the district court’s application of a four-level increase to his base offense level

under § 3B1.1(a) of the United States Sentencing Guidelines (“U.S.S.G.”) for his “leadership role”

in a conspiracy to produce and distribute fraudulent identification documents. Appellant concedes

that he was subject to an enhancement under U.S.S.G. § 3B1.1, but contends that the district court

should only have applied the lesser two-level increase under U.S.S.G. § 3B1.1(c). For the reasons

set forth below, we AFFIRM the district court’s determination to the contrary.



                                                  I.

       Appellant was sentenced to a 46-month term of imprisonment after he pleaded guilty to

participating in a conspiracy to produce and traffic in fraudulent identification documents. The
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United States v. Morales-Martinez

underlying indictment named ten co-conspirators involved in the scheme, including two of the

Appellant’s brothers and several other relatives. Several other persons who were involved in the

operation, including Appellant’s girlfriend, were not named in the indictment. Appellant’s role in

the scheme involved manufacturing the fraudulent identifications, teaching others how to

manufacture the documents, recruiting business through the use of at least one “agent,” and

distributing the documents with the help of other persons named and not named in the indictment.

At sentencing, the Government argued that Appellant should receive a four-level enhancement under

U.S.S.G. § 3B1.1(a) based on evidence that Appellant held a “leadership role” in a criminal activity

involving more than five persons. Appellant countered that he should only be subject to a two-level

enhancement under U.S.S.G. § 3B1.1(c) because he was not a “leader” in the operation and because

his role in the operation involved giving directives to fewer than five persons. The thrust of

Appellant’s argument in the district court, and now, is that he and his brothers were each

independently running their own operations, and that he only exerted any level of control over two

persons in his own operation. According to Appellant, the four-level increase under U.S.S.G. §

3B1.1(c) should not apply to his case because he had a leadership role over fewer than five persons.

The district court found, by a preponderance of the evidence, that Appellant was one of three

brothers who held a leadership role in an illicit “family business,” in which the total number of

persons involved went well beyond the minimum five persons required to substantiate the

application of U.S.S.G. § 3B1.1(a). As for Appellant’s role in the conspiracy, the district court

found that Appellant had recruited and paid multiple individuals involved in the scheme, including

a driver and delivery person, as well as a sales agent of sorts, who recruited potential customers in

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exchange for a commission. It also considered the sophisticated nature of the operation, which

appears to have been ongoing for over eight years, during which time Appellant appeared to

maintain a pivotal role in the careful strategic management of cash, inventory, equipment, customer

supply, security, and complex concealment efforts to stay under the law enforcement radar. After

considering these and a number of other factors, the district court determined that Appellant had an

“organizing, animating influence” in the illicit business, even if Appellant’s claim that he was

independent from his brothers’ operations was true. Accordingly, the district court concluded that

the four-level increase to Appellant’s base offense level was warranted under U.S.S.G. § 3B1.1(a)

and sentenced him to a 46-month term of imprisonment. Appellant filed timely notice of appeal,

arguing that his sentence was unreasonable because it was based on the district court’s improper

application the four-level enhancement for a leadership role under U.S.S.G. § 3B1.1(a).



                                                 II.

       We review a district court's sentencing decisions for reasonableness, under the abuse-of-

discretion standard. United States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008) (citing Gall v. United

States, 552 U.S. 38 (2007); United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007); see also

United States v. Vasquez, 560 F.3d 461, 473 (6th Cir.2009). In doing so, we typically review the

district court’s fact findings for clear error and its legal interpretation of the Guidelines de novo.

Jeross, 521 F.3d at 569 (citing States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.2005); United States

v. Cousins, 469 F.3d 572, 575 (6th Cir.2006)). The standard of review for a district court’s

application of a sentencing enhancement under U.S.S.G. § 3B1.1, however, is more deferential.

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United States v. Washington, 715 F. 3d 975, 983 (6th Cir. 2013) (“[because] Section 3B1.1

enhancement[s] . . . depend[] on a number of factual nuances that a district court is better positioned

to evaluate”) (applying Buford v. United States, 532 U.S. 59 (2001)).

       Under U.S.S.G. § 3B1.1, an enhancement of two-to-four levels is applied to the base offense

level of a defendant who had an “aggravating role” in the underlying offense. Depending on the

defendant's role in the offense, the base offense level is increased as follows:

       (a)     If the defendant was an organizer or leader of a criminal activity that involved five
               or more participants or was otherwise extensive, increase by 4 levels.

       (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.

       (c)     If the defendant was an organizer, leader, manager, or supervisor in any criminal
               activity other than described in (a) or (b), increase by 2 levels.

U.S.S.G. § 3B1.1.

       Put simply, where the criminal activity involved more than five persons, a defendant with

a leadership role is subject to a 4-level increase, while a defendant who held a managerial or

supervisory role receives a 3-level increase to the base offense level at sentencing. U.S.S.G. §

3B1.1(a),(b). A defendant whose sentence is enhanced under U.S.S.G. § 3B1.1(a) or (b) need not

directly supervise more than five persons, so long as the defendant exerted some level of control or

influence over at least one of five or more persons involved in the criminal activity. United States

v. Baker, 559 F.3d 443, 449 (6th Cir. 2009) (citing United States v. Robinson, 503 F. 3d 522, 529

(6th Cir. 2007)). Where the underlying criminal activity involved fewer than a total of five persons,




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however, a defendant’s leadership or managerial role in the operation will result only in a 2-level

increase to the base offense level at sentencing. U.S.S.G. § 3B1.1 (c).

       The government has the burden of proving Appellant’s aggravating role by a preponderance

of the evidence. See United States v. Dupree, 323 F.3d 480, 491 (6th Cir.2003). Factors the court

should consider include: 1) exercise of decision-making authority, 2) the nature of participation in

the commission of the offense, 3) the recruitment of accomplices, 4) the claimed right to a larger

share of the fruits of the crime, 5) the degree of participation in planning or organizing the offense,

6) the nature and scope of the illegal activity, and 7) the degree of control and authority exercised

over others. U.S.S.G. § 3B1.1, cmt. n.4; United States v. Lalonde, 509 F.3d 750, 765 (6th Cir.2007);

United States v. Moncivais, 492 F.3d 652, 660 (6th Cir. 2007). See also Solorio, 337 F.3d 580, 600-

01 (6th Cir. 2003). While it is not necessary that the court find evidence of each factor in order to

assess the propriety of an enhancement under U.S.S.G. § 3B1.1, the district court should support its

enhancement determination by consulting these factors and providing a statement of reasons for its

determination regarding these factors. United States v. Alexander, 59 F.3d 36, 38-40 (6th Cir. 1995);

accord United States v. Caseslorente, 220 F.3d 727, 736 (6th Cir. 2000); see also Dupree, 323 F.3d

at 493-94.



                                                 III.

       Appellant concedes that he was subject to an enhancement under U.S.S.G. § 3B1.1 for his

“aggravating role” in the conspiracy, but contends that the district court should have only applied

the lesser two-level increase under subsection (c) rather than the four-level increase under subsection

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United States v. Morales-Martinez

(a), because he only conspired with two other persons, and did not lead or supervise any of the other

persons involved in the illegal scheme to manufacture and sell fraudulent identification documents.

Appellant does not contest that the illegal scheme involved more than five persons; he simply argues

that the scope of his leadership role only involved exercising authority over two other persons.

       Appellant’s argument is based on the premise that U.S.S.G § 3B1.1(a) only applies to a

defendant who exerts direct control over five or more persons. This interpretation is incorrect,

because U.S.S.G § 3B1.1(a) applies even if a defendant only exerts control or influence over a single

person in a larger criminal scheme involving five or more persons. See Baker, 559 F.3d at 449.

Therefore, although the record appears to contradict Appellant’s contention that his leadership role

in the conspiracy was limited to exercising authority over two other persons, this case is easily

resolved even if we accept his position.

       The district court’s factual determination that the larger conspiracy involved more than five

persons was clearly supported by the record, and is not contested by Appellant. The district court

then expressly considered several of the seven factors under U.S.S.G § 3B1.1 to conclude that

Appellant was a leader of the conspiracy because his role in the operation was extensive and

involved exercising some level of authority over others. Moreover, Appellant himself concedes that

he exercised leadership over two co-conspirators.

       This Court’s precedent clearly supports the conclusion that a defendant who exercises

leadership over two persons in a criminal activity that involved five or more persons is subject to

the four-level enhancement under U.S.S.G § 3B1.1(a). See Baker, 559 F.3d at 449. Thus,

Appellant’s argument is based on a misinterpretation of applicable law and therefore fails.

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                                                IV.

       We agree with the district court that Appellant maintained a leadership role in a conspiracy

to produce and distribute fraudulent identification documents that involved more than five persons.

Accordingly, we AFFIRM the district court’s sentencing determination that Appellant was subject

to the four-level increase in his base offense level at sentencing pursuant to U.S.S.G § 3B1.1(a).




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