                              In the

United States Court of Appeals
               For the Seventh Circuit

Nos. 08-3275 & 08-3418

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JESUS N. G ONZALEZ-M ENDOZA AND
O MAR A LEJANDRO G ONZALEZ-V ILLA,

                                             Defendants-Appellants.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 05 CR 844—Samuel Der-Yeghiayan, Judge.



   A RGUED S EPTEMBER 10, 2009—D ECIDED O CTOBER 14, 2009




 Before M ANION, S YKES, and T INDER, Circuit Judges.
  M ANION, Circuit Judge. Omar Alejandro Gonzalez-Villa
(“Villa”) and Jesus N. Gonzalez-Mendoza (“Mendoza”)
pleaded guilty to conspiring to distribute or possess
with intent to distribute heroin and cocaine. The district
court sentenced Villa and Mendoza to 142 months’ and
130 months’ imprisonment, respectively. They appeal
their sentences, and we affirm.
2                                  Nos. 08-3275 & 08-3418

                            I.
  At the direction of law enforcement agents, a
confidential informant pretending to be interested in
purchasing a truck approached Villa, who had advertised
one for sale. The conversation evolved into a discussion
about narcotics. The informant secretly recorded the
conversation as he and Villa discussed the price of
a kilogram of heroin, and Villa later provided the infor-
mant with a sample of heroin. The next day, agents con-
ducted a stop of Villa’s vehicle near his residence.
During the course of the stop, Villa told agents that
inside a pickup truck in his garage was a suitcase con-
taining a large sum of cash and eight kilograms of co-
caine. Villa also consented to a search of his house and
garage. Inside the pickup truck in the garage, agents
discovered a suitcase containing $312,000 in cash and a
duffel bag containing three kilograms of heroin and four
kilograms of cocaine. Villa then told agents that he was
from Mexico and was in Chicago to oversee drugs and
drug proceeds for a Mexican cartel. Villa also stated that
he received $1500 per week for carrying out his over-
sight responsibilities.
  When agents searched Villa’s house, they encountered
Mendoza, Villa’s 19-year-old brother-in-law from Mexico
who had been living in the house for two months. When
questioned by agents shortly after they entered the
house, Mendoza stated he had packed the currency
found in the suitcase at Villa’s direction and that he
had previously wrapped money on Villa’s instruction.
Mendoza also admitted he knew the money was drug
proceeds. Mendoza was questioned by agents a second
Nos. 08-3275 & 08-3418                                        3

time at the residence and a third time at a police station;
both times he repeated that he had wrapped the money
in the suitcase at Villa’s direction, although he did not
say he knew the currency was drug proceeds.
   Villa and Mendoza were indicted for conspiring to
distribute or possess with intent to distribute heroin
and cocaine, as well as possession with intent to
distribute the same. Villa also was charged with one
count of distributing heroin based on the sample he
provided to the confidential informant. The defendants
filed motions to suppress evidence and statements they
had made to agents, which the district court denied. Villa
and Mendoza then entered guilty pleas to the count
of conspiring to distribute or possess with intent to distrib-
ute heroin and cocaine.
  At sentencing, the district court enhanced Villa’s Guide-
lines offense level by two levels for being a manager or
supervisor in the offense and denied his request for a
safety-valve adjustment. The court enhanced Mendoza’s
offense level by two levels after finding he had obstructed
justice by making false statements in his affidavit in
support of his suppression motion, and the court did not
reduce his offense level for acceptance of responsibility.
The district court then sentenced Villa and Mendoza to
142 months’ and 130 months’ imprisonment, respectively.
The defendants now appeal, challenging their sentences.1




1
  Villa originally challenged the district court’s denial of his
motion to suppress in his opening brief. We subsequently
granted his motion to withdraw that argument.
4                                        Nos. 08-3275 & 08-3418

                                II.
A. Villa
  On appeal, Villa first argues that the district court
erred by enhancing his offense level for serving as a
manager or supervisor of criminal activity under U.S.S.G.
§ 3B1.1(c). We review a district court’s determination
that a defendant played a managerial or supervisory
role in an offense for clear error. United States v. Pira,
535 F.3d 724, 730 (7th Cir. 2008).
  Under § 3B1.1(c), a two-level increase in a defendant’s
offense level is warranted if the criminal activity
involved fewer than five participants and the defendant
was an “organizer, leader, manager, or supervisor.” 2
Villa contends that the § 3B1.1(c) enhancement cannot
be applied unless he exercised some element of control
over another participant in the offense. There is some




2
  The Guidelines do not define the terms “manager” or
“supervisor.” Although application note 4 to § 3B1.1 instructs
that the following seven factors are to be used to distinguish
organizers/leaders from managers/supervisors, we have
concluded “that they are still relevant in ascertaining whether
an individual had a supervisory role at all,” United States v.
Howell, 527 F.3d 646, 649 (7th Cir. 2008): (1) the exercise of
decision making authority; (2) the nature of participation
in the commission of the offense; (3) the recruitment of accom-
plices; (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.
Nos. 08-3275 & 08-3418                                             5

tension in our case law on this point.3 But even if control
over another participant is the sine qua non for an en-
hancement under § 3B1.1, there was evidence that Villa
exercised control over Mendoza: Mendoza told agents
he had packed the money in the suitcase at the direction
of Villa and that he had done so on other occasions.4
In addition, Villa admitted he was in Chicago to oversee
drugs and drug proceeds for a Mexican cartel, which
suggests he played a coordinating or organizing part in
the criminal activity. For these reasons, the district court
did not clearly err by finding that Villa occupied a man-


3
   Compare, e.g., United States v. Anderson, No. 08-2925, slip op. at
22, 2009 WL 2778236, at *9 (7th Cir. Sept. 3, 2009) (stating that
§ 3B1.1 enhancement “cannot be applied unless the defendant
exercised some control over others involved in the commission
of the offense” (quotation marks and citations omitted)), and
United States v. Fones, 51 F.3d 663, 668-70 (7th Cir. 1995) (holding
that § 3B1.1 enhancement was improperly applied where
defendant lacked control of or authority over another partici-
pant), with Pira, 535 F.3d at 730 (stating it is not necessary
“ ‘that the defendant exercised control, so long as the criminal
activity involves more than one participant and the defendant
played a coordinating or organizing role.’ ” (quoting United
States v. Carrera, 259 F.3d 818, 827 (7th Cir. 2001))).
4
  Villa argues that fact is not indicative of his control over
Mendoza, but merely shows he and Mendoza were co-conspira-
tors who divided responsibilities. That is not the most rea-
sonable characterization of Mendoza’s statement. But assuming
that characterization is plausible, we will not find clear error
when the fact finder has chosen between two permissible
views of the evidence. United States v. Hatten-Lubick, 525 F.3d
575, 580 (7th Cir. 2008).
6                                      Nos. 08-3275 & 08-3418

agerial or supervisory role and enhancing his offense
level accordingly under § 3B1.1(c).
  Villa also argues that the district court erred by finding
he did not qualify for a two-level “safety valve” adjustment
under U.S.S.G. §§ 2D1.1(b)(11) and 5C1.2. One require-
ment for safety-valve relief is that the defendant was not
a manager or supervisor of others in the offense, U.S.S.G.
§ 5C1.2(a)(4); therefore, our affirmance of the district
court’s § 3B1.1(c) enhancement of Mendoza’s offense
level for being a manager or supervisor forecloses that
argument. United States v. Sainz-Preciado, 566 F.3d 708,
715 (7th Cir. 2009).


B. Mendoza
  Mendoza’s first argument is that the district court erred
by enhancing his offense level under U.S.S.G. § 3C1.1
for obstructing justice.5 Our review of a district court’s
factual findings supporting a § 3C1.1 enhancement is for
clear error. United States v. Powell, 576 F.3d 482, 498
(7th Cir. 2009).
  In his motion to suppress the statements he made
to agents, Mendoza asserted that he was subjected to



5
  Section 3C1.1 provides: “If (A) the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction,
and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.”
Nos. 08-3275 & 08-3418                                   7

custodial interrogation prior to receiving his Miranda
warnings. In his affidavit in support of the suppression
motion, Mendoza claimed that he was handcuffed im-
mediately after agents entered the house, was then taken
to the garage and questioned, and did not receive any
Miranda warnings until he arrived at the police station. At
an evidentiary hearing, however, an agent testified
that Mendoza was not handcuffed immediately upon
the entry of agents into the residence, but was only es-
corted to the living room and asked some questions
while agents conducted a search of the house. The same
agent also stated that after the initial questioning,
Mendoza was given Miranda warnings by another agent
while inside the residence before being questioned a
second time. The district court credited the government
agent’s account of events at the house, found Mendoza’s
version false, and enhanced Mendoza’s offense level for
obstruction of justice. We will assume, as both parties
concede, that the district court’s enhancement was
based on a finding of perjury.
  According to application note 4(b) to § 3C1.1, “commit-
ting, suborning, or attempting to suborn perjury” is an
example of conduct to which the enhancement applies.
Perjury occurs “when a witness testifying under oath
gives false testimony about a material matter with the
willful intent to provide false testimony, instead of as a
result of confusion, mistake, or faulty memory.” United
States v. Price, 516 F.3d 597, 607 (7th Cir. 2008) (citing
United States v. Dunnigan, 507 U.S. 87, 94 (1993)).
  Mendoza argues that the statements he made in his
affidavit were not false. We give special deference to a
8                                   Nos. 08-3275 & 08-3418

district court’s credibility determinations, however,
which seldom constitute clear error. United States v.
White, 240 F.3d 656, 661 (7th Cir. 2001). Because the
district court’s view of the evidence presented during the
suppression hearing and in Mendoza’s affidavit
was plausible, we will not re-weigh the evidence. See
id. at 660-61.
  Mendoza also claims that his statements, even if false,
were legal in nature rather than factual and thus could
not have been material. Not so. Mendoza’s statements
were factual: they asserted that the circumstances sur-
rounding his questioning by agents transpired in a
certain way. And those statements were clearly mate-
rial.6 Mendoza’s claim that he was handcuffed immedi-
ately after agents entered the residence bore on whether
he was in custody when he was first questioned and
thus whether he was entitled to Miranda warnings at
that point in time. His claim that he was not given any
Miranda warnings until after he was taken to the police
station was relevant to determining whether he was
improperly interrogated without such warnings when
questioned the second time at the residence. Had the
district court believed Mendoza’s assertions in his affida-
vit, Mendoza’s motion to suppress the statements he
gave to agents might have been granted; hence, those
assertions were material. For these reasons, the district



6
   “Material” information is “information that, if believed,
would tend to influence or affect the issue under determina-
tion.” U.S.S.G. § 3C1.1 app. n.6.
Nos. 08-3275 & 08-3418                                          9

court’s application of the § 3C1.1 obstruction of justice
enhancement was not clearly erroneous.
  Mendoza also argues that the district court erred in
finding he did not qualify for an acceptance of responsi-
bility offense level reduction. 7 Under U.S.S.G. § 3E1.1(a),
a sentencing court may decrease a defendant’s offense
level by two levels if he “clearly demonstrates acceptance
of responsibility for his offense.” But a defendant
whose sentence was properly enhanced for obstruction
of justice is presumed not to have accepted responsi-
bility. United States v. Davis, 442 F.3d 1003, 1009 (7th Cir.
2006). Only when exceptional circumstances are present
will that presumption be overcome. Id. at 1009-10.
  As discussed above, the district court’s enhancement
of Mendoza’s offense level for obstructing justice was
appropriate; therefore, he is presumed not to have ac-
cepted responsibility. Mendoza does not argue that
exceptional circumstances exist that would justify an
acceptance of responsibility reduction, and there is
nothing in the record that demonstrates exceptional
circumstances. Merely pleading guilty and saving the
government from trial preparation are alone insufficient



7
  The government argues that Mendoza either waived or
forfeited this argument by not raising it in the district court.
Had Mendoza raised the issue, our review would be for
clear error. United States v. Messino, 382 F.3d 704, 709 (7th Cir.
2004). Because we conclude Mendoza cannot prevail under
the clear error standard of review, we need not decide
whether he waived or forfeited the argument.
10                                   Nos. 08-3275 & 08-3418

for a defendant to receive an acceptance of responsibility
reduction, “especially in the face of false statements by
the defendant.” United States v. Partee, 301 F.3d 576, 581
(7th Cir. 2002). Accordingly, the district court’s deter-
mination that Mendoza was not eligible for a reduction
for acceptance of responsibility was not clearly erroneous.


                            III.
  Based on the foregoing, we conclude that the district
court did not commit clear error by determining that Villa
was a manager or supervisor in the offense and that
he was not eligible for a safety-valve adjustment. For
Mendoza, the district court did not clearly err in finding
he obstructed justice and was not eligible for an
acceptance of responsibility reduction. Accordingly, we
A FFIRM the defendants’ sentences.




                          10-14-09
