                     NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 11a0306n.06

                                          Nos. 09-2248, 09-2249
                                                                                         FILED
                              UNITED STATES COURT OF APPEALS
                                                                                      May 11, 2011
                                                                                LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA

        Plaintiff-Appellee,
                                                              On Appeal from the United
                v.                                            States District Court for the
                                                              Eastern District of Michigan
HUGO MANOSALVA-SANCHEZ
                                                                     Opinion
        Defendant-Appellant.


BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; BERTELSMAN, District Judge.*


BERTELSMAN, District Judge:

        Defendant-Appellant, Hugo Manosalva-Sanchez, appeals the enhancement of his sentence.

The district court applied a two-level enhancement to Manosalva-Sanchez’s total offense level

because he was determined to be an organizer, leader, manager or supervisor in any criminal activity,

under the U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 3B1.1(C) (2008). As a result,

Manosalva-Sanchez’s final sentence was correspondingly increased.

        Manosalva-Sanchez argues that the district court erred when it applied U.S.S.G. § 3B1.1(C)

to his total offense level calculation.

        For the reasons stated below, we AFFIRM.




*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                                 I.

       According to his Presentence Investigation Report (“PSR”), Hugo Manosalva-Sanchez is a

fifty-five year old Colombian national with no prior criminal history. During 2006, Manosalva-

Sanchez became involved in the shipment of heroin from Colombia to Miami and Detroit. Through

the use of confidential informants and undercover agents, the Drug Enforcement Administration

(“DEA”) was able to determine the identity of Manosalva-Sanchez.

       During the course of the investigation, an undercover DEA agent had several phone

conversations with Luz Nelly De Castro-Buelvas (“Luz Nelly”). Luz Nelly called the undercover

agent claiming to be Manosalva-Sanchez’s wife and she directed the undercover agent to wire money

to several third-party accounts, ostensibly to pay for the shipments of heroin.

       Manosalva-Sanchez was subsequently indicted for his shipment of large quantities of heroin

to the United States. Luz Nelly was prosecuted as a co-defendant and she subsequently pled guilty

to conspiracy to commit money laundering.

       In addition to Luz Nelly, two other individuals were also involved in Manosalva-Sanchez’s

importation of heroin: Nicholas Ubillus and Jose Lopez-Gomez. During the course of the criminal

scheme, Ubillus and Lopez-Gomez twice traveled to Detroit to meet an undercover federal agent in

order to collect money owed to Manosalva-Sanchez for the sale of heroin. Both Ubillus and Lopez-

Gomez were subsequently indicted for their participation in Manosalva-Sanchez’s trafficking

operation.

       On May 12, 2009, Manosalva-Sanchez entered into a Rule 11 agreement with the United

States whereby he agreed to plead guilty to two separate counts of importation of heroin. The

Probation Office calculated Manosalva-Sanchez’s total offense level as 33. In arriving at this


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number, a two-point upward adjustment was made, pursuant to U.S.S.G. § 3B1.1(C), for Manosalva-

Sanchez’s role in the offense as an organizer or leader.

        Based on the total offense level, and the inapplicability of the “safety valve” provision of

U.S.S.G. § 5C1.2, which eliminates the statutory minimum, the sentencing range was between 120

and 135 months. Without the two-point upward adjustment for his role as an organizer or leader in

the crime, Manosalva-Sanchez’s sentencing range would have been 108 to 135 months, based on a

total offense level of 31.

        At the plea hearing, the court was informed that Manosalva-Sanchez was challenging the

determination of his role as an organizer or leader in the commission of the crime. At his sentencing,

Manosalva-Sanchez objected to the two-point enhancement under U.S.S.G. § 3B1.1(C).

        The record reflects that Manosalva-Sanchez recruited Luz Nelly to collect drug money for

him. The government also argued that the money collected by Luz Nelly eventually made its way

back to Manosalva-Sanchez.

        Manosalva-Sanchez claimed that he was merely a middleman who “was told what to do, how

to do it, how to respond, and when to respond.” Manosalva-Sanchez flatly denied ever having

recruited Luz Nelly.

        The district court disagreed, ultimately finding that Manosalva-Sanchez was subject to the

two-point enhancement:

        The Court:             I think I have sufficient evidence.

        Defense Counsel:       Okay.

        The Court:                     In this case to show by a preponderance of the evidence
                               factors necessary to establish that this defendant was in fact a leader.
                               I don’t know so much that he was an organizer, I’m not sure that


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                              makes any difference, but he certainly was a leader in these
                              transactions.

                                      He in fact was in Colombia. He arranged to have the drugs
                              sent here to the United States. He arranged to get the money. We
                              know from, uhh, Luz Nelly the money was to go to him. And the
                              question of whether he gave the actual account numbers or she had
                              the account numbers to put the money in, I don't really think is of any
                              import in this particular discussion, because he at the very least had
                              one person, who was Luz Nelly, who was attempting to collect the
                              drug money for him here in the United States.

                                     And the whole thing, I agree with the government, would not
                              have happened had he not been involved. And I think to say that he's
                              just somebody in Colombia is foolhardy. These DEA agents talk
                              about receiving information about him being involved in drugs, and
                              lo and behold, they contact him and they get large sums, large
                              amounts of drugs.

                                       In terms of how much he gets in terms of this whole
                              conspiracy, we don't know. We know that the money was due, we
                              know from Luz Nelly, was to go back to him. Now whether he just
                              got it to pay his suppliers, I don't know.

                                             ....

                                      And considering all of these factors and considering that it
                              occurred not only here in Detroit with a confidential informant, it
                              occurred in Florida with a separate confidential informant, shows me
                              that he is dealing with probably multiple other people but certainly
                              at least one other person to be a leader. So I think that he is in fact
                              subject to the two point enhancement.

(emphasis added).

       At the conclusion of the sentencing hearing, the court inquired if there were “any objections

to the sentence that have not been previously placed on the record.” The response was that there

were none.




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       Manosalva-Sanchez was sentenced to 120 months of prison time on each of the two counts

of importation of heroin, with the sentences to be served concurrently. On September 25, 2009,

Manosalva-Sanchez filed a timely Notice of Appeal.

                                                II.

       When a district court’s application of a sentencing enhancement under U.S.S.G. § 3B1.1 is

appealed, this court applies a mixed standard of review. In such cases, this court applies a clearly

erroneous standard to findings of fact and a de novo standard to the conclusions of law. United

States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citing United States v. Moncivais, 492 F.3d

652, 660 (6th Cir. 2007)).

       Under the clear error standard, a reviewing court will not reverse a lower court’s findings of

fact simply because it would have decided the case differently. United States v. Orlando, 363 F.3d

596, 603 (6th Cir. 2004). Rather, a reviewing court must ask whether on the entire evidence the

court is left with the definite and firm conviction that a mistake has been made. Id.

       In Buford v. United States, 532 U.S. 59, 64 (2001), the Supreme Court held that review of

a sentence enhancement under U.S.S.G. § 4B1.2 should be conducted with deference to the district

court rather than on a de novo basis. However, this Court has “found it unnecessary to determine

whether Buford requires us to alter the standard of review we apply in reviewing § 3B1.1

enhancements.” Moncivais, 492 F.3d at 660 (quoting United States v. McDaniel, 398 F.3d 540, 551

n.10 (6th Cir. 2005)).




                                                 5
                                                  A.

       At issue was whether there was any evidence in the record to support the application of a

two-level enhancement under U.S.S.G. § 3B1.1(C) to Manosalva-Sanchez’s total offense level. For

the reasons stated below, this court finds that the enhancement was appropriate.

       According to U.S.S.G. § 3B1.1, the defendant’s role in the offense can result in an increase

of the offense level 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.

       The crux of Manosalva-Sanchez’s argument is that the government failed to show, by a

preponderance of the evidence, that he exerted control over at least one participant in the

commission of his crimes. See U.S.S.G. § 3B1.1 cmt. n. 2 (2008). At the nucleus of that argument

is the disputed role played by Luz Nelly.

       At sentencing, the government steadfastly maintained that Manosalva-Sanchez recruited Luz

Nelly to collect drug money for him. Manosalva-Sanchez vehemently disputes the government’s

assertion.   Luz Nelly was indicted for her involvement in the trafficking scheme and she

subsequently pled guilty.

       At Manosalva-Sanchez’s sentencing, there was some discussion of Luz Nelly’s testimony

from her earlier Rule 11 hearing. (“You heard the testimony of Luz Nelly when she pled before



                                                  6
Your Honor.”). Clearly, the district court relied, in part, on that earlier testimony to find that

Manosalva-Sanchez was subject to the two-level enhancement under § 3B1.1. Manosalva-Sanchez

argues that the district court’s use of Luz Nelly’s plea testimony for the U.S.S.G. § 3B1.1

enhancement was improper, but no such objection was made at the sentencing hearing.

       The argument fails. “In determining the relevant facts, sentencing judges are not restricted

to information that would be admissible at trial.” U.S.S.G. § 6A1.3 cmt. background (2008); United

States v. Silverman, 976 F.2d 1502, 1512 (6th Cir. 1992). “A district court is indeed permitted to

rely on testimony presented at a related proceeding, so long as there are sufficient indicia of

reliability.” Logan v. United States, 208 F.3d 541, 544 (6th Cir. 2000) (citations omitted).

       Furthermore, Manosalva-Sanchez conveniently ignores the fact that two other individuals

were also involved in his criminal scheme. According to the PSR, on two separate occasions,

Ubillus and Lopez-Gomez, both traveled to Detroit to meet an undercover federal agent in order to

collect money owed to Manosalva-Sanchez. Manosalva-Sanchez did not object to these statements

contained in the PSR.

       A district court may make its findings of fact by adopting the presentence investigation

report. United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001); United States v. Ward, 190 F.3d

483, 492 (6th Cir. 1999). “At sentencing, the court may accept any undisputed portion of the

presentence report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). “The district court is allowed

to accept as true all factual allegations in a presentence report to which the defendant does not

object.” United States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004) (quoting United States v. Levy,

250 F.3d 1015, 1018 (6th Cir. 2001)). See also United States v. Freeman, --- F.3d ----, No. 09-4158,

2011 WL 1226091, at *6 (6th Cir. Apr. 4, 2011) (noting that the district court need not make


                                                  7
independent findings outside of the PSR when the facts contained therein are not disputed). “[A]

failure to object to the presentence report waives any future objections.” Ward, 190 F.3d at 492.

       The district court thoroughly reviewed all the pertinent facts with counsel at the sentencing

hearing. The court based its ruling on its interpretation of the facts taken as a whole, including

reasonable inferences it was entitled to draw from them.

       Even if there were some deficiency in the district court’s determination that Manosalva-

Sanchez supervised or otherwise managed Luz Nelly’s activities, any such flaw would not vitiate the

fact of Ubillus’ and Lopez-Gomez’s involvement in the drug trafficking scheme. There is no dispute

that Ubillus and Lopez-Gomez twice traveled to Detroit to collect drug money for Manosalva-

Sanchez. That alone is sufficient to justify the application of the U.S.S.G. § 3B1.1(C) enhancement.

       There are numerous cases finding an enhancement appropriate where a defendant employed

others to collect drug money. See United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009)

(upholding enhancement where defendant directed the actions of several individuals including one

who helped defendant to collect drug money); United States v. Rodrigues, 251 F. App’x 358, 361

(7th Cir. 2007) (holding enhancement to be proper where defendant employed others to collect drug

money); United States v. Green, 210 F. App’x 401, 402 (5th Cir. 2006) (holding upward adjustment

to be appropriate where defendant used another person as a “runner” to distribute drugs and collect

money from street-level dealers); United States v. Henley, 360 F.3d 509, 517 (6th Cir. 2004) (holding

enhancement to be proper where defendant employed several other individuals to help him collect

drug debts); United States v. Mendoza, 341 F.3d 687, 694 (8th Cir. 2003) (“The record supports the

court’s conclusion that Mendoza was a leader or organizer. . . . Mendoza hired Agee to drive

Mendoza around, collect money and deliver drugs.”).


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                                               III.

       Therefore, we hold that no clear error was committed by the district court when it applied a

two-level enhancement to Manosalva-Sanchez’s total offense level, thereby resulting in a longer

prison sentence.

       AFFIRMED.




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