                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                       UNITED STATES COURT OF APPEALS                         August 12, 2016

                                                                            Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                               Clerk of Court
                        _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 14-2193

ERNEST JOE MARQUEZ,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 2:12-CR-01167-RB-4)
                       _________________________________

Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico, for Defendant-
Appellant.

Richard C. Williams, Assistant United States Attorney (Damon P. Martinez, United
States Attorney, with him on the brief), Office of the United States Attorney, Las Cruces,
New Mexico, for Plaintiff-Appellee.
                        _________________________________

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
                   _________________________________

EBEL, Circuit Judge.
                        _________________________________

      Defendant-Appellant Ernest Marquez challenges the two-level sentence

enhancement imposed under United States Sentencing Guideline § 3B1.1(c) for his

role as an organizer, leader, manager, or supervisor in criminal activity. We affirm.
                                  I.    BACKGROUND

      A jury convicted Marquez of three drug charges, including, as relevant to this

appeal, possession with intent to distribute fifty grams or more of methamphetamine

(“meth”) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The testimony and

evidence at trial showed that Marquez obtained the meth in question by arranging for

two women—Veronica Hernandez and Belinda Galvan—to drive from Las Cruces,

New Mexico, to the vicinity of Tucson, Arizona, exchange money he had provided

them for a brick of meth, and deliver the meth to him back in Las Cruces.

      Specifically, Hernandez testified that Marquez asked her to go to Arizona with

Galvan and “pick something up” for him. Supp. R. vol. VI at 106. Hernandez agreed

that she “should have known” that Marquez was referring to drugs. Id. After all,

Marquez had previously asked her to take a trip to Arizona with Galvan, during

which trip the two women knowingly obtained cocaine in Arizona and transported it

to Michigan.

      In addition, Hernandez and Scott Wetherholt—a drug dealer who often bought

meth from Marquez—testified about a series of phone calls and text messages made

by Marquez regarding the trip. Marquez discussed with Wetherholt his plans to buy

one pound of meth from Arizona for $3000. The morning of Hernandez’s trip,

Marquez sent a series of text messages to Wetherholt attempting to raise funds for the

purchase. Around noon that day, Marquez called the supplier in Arizona from whom

he had arranged to purchase the meth. That same supplier had provided Hernandez

                                          2
and Galvan the cocaine to transport on their previous trip. Marquez told the supplier

that he was “going to get the girls ready” for their trip. Hernandez testified that by

“the girls” Marquez meant her and Galvan. Id. at 75.

      That afternoon, Marquez and Hernandez discussed her upcoming trip to

Tucson. Shortly thereafter, Hernandez called Marquez to tell him that she was

leaving to pick up Galvan in her car. That evening, Marquez told Hernandez that he

was “getting the rest of the money together” so that she and Galvan could leave for

Tucson. Id. at 71.

      Later that night, Galvan called Marquez to tell him that on the way to Arizona

she and Hernandez had been stopped at a Border Patrol checkpoint. Marquez asked

if Hernandez’s car had been searched. Although it had been searched, the Border

Patrol agents had allowed the women to keep the $2300 they were transporting.

Marquez told the women that they should take a different route on their return trip to

Las Cruces, presumably to avoid further Border Patrol checkpoints.

      In Arizona, Hernandez and Galvan met with the supplier, who gave them a

container holding a one-pound brick of meth. Hernandez and Galvan drove the meth

back to Las Cruces, dropped it off at Hernandez’s apartment, and then drove to meet

Marquez at his home. On their way, they stopped at a fast-food restaurant because

Marquez had told them to buy him something to eat. At the meeting, Marquez and

the two women discussed what had happened during the trip. After the meeting,

Galvan returned to Hernandez’s apartment and retrieved the brick of meth to deliver

to Marquez at his home.

                                           3
      At sentencing, the government requested a two-level enhancement pursuant to

Sentencing Guideline § 3B1.1(c) for Marquez’s role as an organizer, leader, manager,

or supervisor of the two women couriers who purchased and delivered the meth.

After hearing argument on the matter, the district court ruled

      I’ve—as I’ve indicated, I’ve read all the materials and [defense counsel], on
      the legal issue, I think that there is significant evidence for me to find that
      Mr. Marquez was, in fact, a leader/organizer, at the two-level—at the two-
      level level. So I think that probation has gotten that right.

Supp. R. vol. VIII at 15-16. Marquez’s counsel did not object to the procedural

adequacy of that explanation at the time. The district court then proceeded to impose

a below-Guidelines sentence of 130 months. Before adjourning the hearing, the

district court inquired whether either counsel had “[a]nything else this morning?” to

discuss. Id. at 25. Marquez’s counsel again failed to raise a procedural objection to

the district court’s explanation concerning the § 3B1.1 enhancement. Marquez now

appeals that enhancement.

                                     II.    DISCUSSION

      On appeal, Marquez challenges the procedural reasonableness of his § 3B1.1

enhancement. He argues, first, that the district court did not clearly articulate the

reasons for imposing the enhancement, and, second, that the enhancement is not

supported by sufficient evidence. He cannot prevail on either ground.




   A. Procedural challenge


                                            4
      Because Marquez’s counsel did not raise a procedural objection at the

sentencing hearing, his procedural challenge is reviewed for plain error.1 See United

States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir. 2009) (reviewing a

procedural challenge to a § 3B1.1(c) enhancement for plain error because “we have

consistently held plain error review obtains when counsel fails to render a

contemporaneous objection to the procedural adequacy of a district court’s statement

of reasons at sentencing”). “Our plain error standard is satisfied when there is (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at

1295 (quotation omitted).



      1
         Marquez contends plain error review is inapplicable because his counsel was
not given an opportunity to raise a procedural objection. See United States v.
Uscanga-Mora, 562 F.3d 1289, 1294 (10th Cir. 2009) (“[T]he federal rules provide
for plain error review only when counsel has been given, but has not taken advantage
of, an opportunity to voice his or her objection . . . .”). The district court, however,
specifically inquired before adjourning the hearing whether counsel had “[a]nything
else this morning” to address. Supp. R. vol. VIII at 25. That inquiry provided
Marquez’s counsel a sufficient opportunity to register an objection. See United
States v. Steele, 603 F.3d 803, 807 (10th Cir. 2010) (holding that “a trial judge is not
required to specifically elicit objections after announcing a sentence,” and finding
that a judge’s closing question of whether there was “anything further” to address
constituted the requisite “fair opportunity to register an objection”).
        Furthermore, contrary to Marquez’s contention, the fact that the district court’s
inquiry came after Marquez’s sentence had been pronounced did not render it any
less of an opportunity to object; after all, the district court still could have remedied
any procedural defect identified at that time. See United States v. Luna-Acosta, 715
F.3d 860, 865-66 (10th Cir. 2013) (holding that district courts can freely correct their
initial oral sentencings at any point before the sentencing hearing is adjourned); see
also United States v. Gantt, 679 F.3d 1240, 1246-47 (10th Cir. 2012) (noting that
procedural challenges “ordinarily would require an objection after the court had
rendered sentence”).
                                            5
       As to the first two prongs, it is well-settled that a district court “‘must make

specific findings and advance a factual basis to support an enhancement under

U.S.S.G. § 3B1.1.’” United States v. Chisum, 502 F.3d 1237, 1242 (10th Cir. 2007)

(quoting United States v. Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996)). “‘[E]ven if the

record overwhelmingly supports the enhancement, appellate fact-finding cannot

substitute for the district court’s duty to articulate clearly the reasons for the

enhancement.’” Id. (quoting Ivy, 83 F.3d at 1292).

       In this case, the district court put forth no factual basis or reasoning for enhancing

Marquez’s sentence pursuant to § 3B1.1, but rather offered only the conclusory statement

that “I think that there is significant evidence for me to find that Mr. Marquez was, in

fact, a leader/organizer.” Supp. Rec. vol. VIII at 15-16. Under our caselaw, that was

error, and it was plain. See United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir.

1995) (“Our cases require the district court to make findings, not conclusions.”).

       As to the third prong, “[t]o show that an error affected his substantial rights,

Mr. [Marquez] must establish a reasonable probability that, but for the error claimed,

the result of the proceeding would have been different.” Uscanga-Mora, 562 F.3d at

1295 (internal quotation marks omitted). In the context of sentencing enhancements,

if “[t]he defendant . . . received a sentence merited by the evidence . . . we cannot say

. . . that, but for the claimed error, the defendant’s sentence would have been any

different.” Id. (affirming a § 3B1.1 enhancement because “[w]hatever the perceived

inadequacy of the district court’s recitation of its reasons, the district court’s sentencing

decision was amply supported by evidence the government proffered at sentencing”).

                                               6
      A defendant such as Marquez qualifies for a two-level enhancement under

§ 3B1.1(c) if he “was an organizer, leader, manager, or supervisor in any criminal

activity.” U.S.S.G. § 3B1.1(c). To determine whether a defendant was an organizer or

leader, the court may consider several factors, including “the exercise of decision

making authority, the nature of participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger share of the fruits of the

crime, the degree of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and authority exercised

over others.” Id. cmt. n.4. However, “[t]he gravamen of the enhancement is either

the exercise of control over other participants or the organization of others for the

purpose of carrying out the crime.” United States v. Tagore, 158 F.3d 1124, 1130-31

(10th Cir. 1998).

      The evidence and testimony at trial showed that Marquez orchestrated the sale

and transfer of one pound of meth from Arizona to New Mexico: He arranged the

sale with his supplier in Arizona; he collected the money for the sale; he recruited

Hernandez to drive her car to Arizona to pick up the meth; he assured his supplier

that he was “going to get the girls ready” for the trip, and Hernandez explained that,

by “the girls” he meant her and Galvan; he maintained phone contact with Hernandez

and Galvan during their trip, including advising them how to avoid further Border

Patrol searches; he debriefed Hernandez and Galvan at his home immediately after

they returned from their trip; and he later had Galvan deliver the meth to him at his

home. Supp. R. vol. VI at 75.

                                            7
      Although the district court did not make factual findings at the sentencing

hearing, it did appropriately focus on the facts pertaining to the two woman couriers

as the basis for the § 3B1.1 enhancement. See, e.g., Supp. R. vol. VIII at 8-9 (“[O]n

the issue of leader/organizer, remind me about the facts relating to the two women

that went to somewhere in Arizona to bring back—I think they went to bring back

meth. And it seemed to me that Mr. Marquez was—they did that at his instance [sic];

they did that in phone contact with him throughout the trip. Am I remembering this

correctly?”); id. at 10 (“But didn’t they go at his behest? Whether he was a boss or

that’s how she characterized it, it seemed to me that they were going at his behest and

he made the connection. Am I not remembering this correctly?”).2

      Accordingly, we conclude that Marquez’s § 3B1.1 enhancement for his role as an

organizer or leader in criminal activity was amply supported by the evidence. See

Uscanga-Mora, 562 F.3d at 1295.

      Marquez’s arguments to the contrary are unavailing. Marquez contends he did

not exercise control over Hernandez and Galvan because Hernandez testified that he

was not “in charge of” her, and that she and Galvan did not follow his instructions to

take a different route on the return trip. But even assuming, arguendo, that such


      2
         We note that probation, in responding to Marquez’s objections to the
presentence report, based its recommendation for the enhancement on Marquez’s
drug sales to Wetherholt. That was error. It is well-established that buyer/seller and
wholesaler/retailer relationships cannot provide the basis for a § 3B1.1 enhancement.
See United States v. Torres, 53 F.3d 1129, 1143 (10th Cir. 1995); United States v.
Sallis, 533 F.3d 1218, 1224 (10th Cir. 2008) (“[S]upplying drugs on credit, or
fronting, without more, is not a basis for the enhancement.”). The district court was
correct to focus instead on the two women couriers.
                                           8
testimony would preclude a finding that Marquez exercised some control over the

two women couriers, it would not preclude a § 3B1.1 enhancement. “To qualify as

an organizer . . . no control is necessary.” United States v. Wardell, 591 F.3d 1279,

1304 (10th Cir. 2009). “Instead, a defendant may be deemed an organizer under

§ 3B1.1 for ‘devising a criminal scheme, providing the wherewithal to accomplish

the criminal objective, and coordinating and overseeing the implementation of the

conspiracy even though the defendant may not have any hierarchical control over the

other participants.’” Id. (quotation omitted). The evidence at trial supports the

conclusion that Marquez—at the very least—coordinated and oversaw the meth

purchase and transfer from Arizona, and therefore qualifies as an organizer under

§ 3B1.1.

       Marquez also contends that the meth purchase cannot form the basis for a

§ 3B1.1 enhancement because it was a “one-off” incident. The idea that a single

criminal endeavor does not trigger § 3B1.1 finds no support in our caselaw, and

contradicts the plain language of that section, which applies to “any criminal activity,”

U.S.S.G. § 3B1.1(c) (emphasis added). We hold that sustained criminal conduct is not

necessary for the enhancement to apply.

       Because Marquez “received a sentence merited by the evidence,” we cannot say—

as we would have to in order to reverse his sentence for plain error—that his substantial

rights were violated. Uscanga-Mora, 562 F.3d at 1295. Therefore, our inquiry into

Marquez’s procedural challenge ends here, and we need not reach the fourth prong of

plain error review.

                                            9
   B. Sufficiency of the evidence challenge

       We next turn to Marquez’s sufficiency of the evidence challenge. The

question of whether a defendant is a leader or organizer is a mixed question of law

and fact that is subject to the clearly erroneous standard of review. United States v.

Pena-Hermosillo, 522 F.3d 1108, 1112 (10th Cir. 2008). “If the district court’s

account of the evidence is plausible in light of the record viewed in its entirety, the court

of appeals may not reverse it even though convinced that had it been sitting as the trier of

fact, it would have weighed the evidence differently.” Uscanga-Mora, 562 F.3d at 1296

(quotation omitted).

       For the reasons we have already detailed above, see supra § II.A, we cannot

say that the district court’s determination that Marquez was an “organizer, leader,

manager, or supervisor” was based on insufficient evidence. See United States v.

Beltran, 571 F.3d 1013, 1020 (10th Cir. 2009) (“[I]n reviewing the court’s decision

to apply an enhancement, we view the evidence and inferences therefrom in the light

most favorable to the district court’s determination.”) (quotation omitted). Because

the evidence supports the district court’s determination, Marquez’s challenge must

fail. See Uscanga-Mora, 562 F.3d at 1296-97.

                                      III.   CONCLUSION

       For the foregoing reasons, we affirm the district court’s imposition of the two-

level § 3B1.1 sentencing enhancement.




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