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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14618
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:14-cr-20267-KMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JUDIEL ZAPATA VALENZUELA,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 23, 2015)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Defendant Judiel Zapata Valenzuela appeals his 70-month prison sentence,

which the district court imposed after he pled guilty to conspiring to commit bank

fraud and aggravated identity theft, in violation of 18 U.S.C. §§ 1344, 1349 and

1028A(a)(1), respectively. On appeal, Defendant argues that the district court

erred by imposing a three-level enhancement for his role as a manager or

supervisor in the conspiracy. After careful review, we agree and vacate

Defendant’s sentence.

I. Background

      The bank fraud scheme for which Defendant was indicted involved theft by

Venezuelan Postal Service employees of personal checks belonging to

Venezuelans who had bank accounts in the United States. These checks were

forwarded to this country where co-defendant Stanley Axel Peterson-Granucci

became the point person for distributing them to co-conspirators, who endorsed the

checks and deposited them into their own bank accounts, withdrew the proceeds of

those checks, and then divided up the money according to varying formulas

dependent on the particular transaction.

      Defendant participated in this conspiracy with co-defendants Peterson-

Granucci, Marco Eugenio Mendoza, and Roberto Valle, as well as other

unidentified co-conspirators. Like his co-conspirators, after Defendant had




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successfully withdrawn the purloined funds from his own account, he paid his co-

conspirators a cut of the deposited checks and kept a portion for himself.

      Defendant was indicted for one count of conspiring to commit bank fraud,

eleven counts of bank fraud, and eleven counts of aggravated identity theft.

Pursuant to a written plea agreement, he pled guilty to conspiring to commit bank

fraud and to one count of aggravated identity theft.

      After Defendant entered his guilty plea, the probation office prepared

Defendant’s presentence investigation report (“PSR”), calculating a base offense

level of seven under U.S.S.G. § 2B1.1(a)(1). Pursuant to §§ 2B1.1(b)(1)(H) and

2B1.1(b)(10)(B), (C), respectively, the probation office applied a 14-level

enhancement, based on a loss amount between $400,000 and $1,00,000, and a two-

level enhancement because the offense involved sophisticated means and a

significant portion of the offense was committed outside the United States. Based

on his purported supervision of co-defendants Mendoza and Valle, Defendant also

received a three-level enhancement as a manager or supervisor of criminal activity

that involved five or more participants, pursuant to § 3B1.1(b). Lastly, the

probation office applied a three-level acceptance-of-responsibility reduction,

pursuant to § 3E1.1(a) and (b), yielding a total offense level of 23.

      With no criminal history points, Defendant’s criminal history was a category

I. Based on a total offense level of 23 and his criminal history category of I,


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Defendant’s guideline range was 46 to 57 months’ imprisonment for the

conspiracy conviction, to run consecutively to the 24-month sentence for the

aggravated identity theft conviction.

      Prior to and at sentencing, Defendant objected to the manager/supervisor

enhancement. Defendant argued that he had not managed or supervised anyone,

and that, for the most part, his duties involved cashing checks that he received

from Peterson-Granucci. Defendant also disagreed with the PSR’s specific

assertion that he had pressured his brother to deposit a check or that he had

supervised Valle.

      The basis for the above factual assertions in the PSR derived from comments

that co-defendants Peterson-Granucci and Valle had made to Postal Inspector Luis

Abru during their debriefing. At Defendant’s sentencing hearing, the Government

called Inspector Abru, who recounted those statements. Finding the statements

repeated by Abru to be reliable, albeit they were hearsay, the district court found

the evidence sufficient to support the role enhancement, overruled Defendant’s

objection, and applied the three-level enhancement. The court sentenced

Defendant to 46 months’ imprisonment on the conspiracy count and to a

consecutive 24-month sentence for the aggravated identity theft count, resulting in

a 70-month total sentence.




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II. Discussion

      Defendant argues on appeal that the district court erred in applying the three-

level role enhancement because the Government failed to prove by a

preponderance of the evidence the disputed facts in the PSR, and thus the

Government did not present sufficient evidence that he was a manager or

supervisor of the criminal activity. More specifically, Defendant contends that the

evidence offered by the Government in support of the enhancement was too

unreliable to warrant being credited by the district court.

      A. Standards of Review Applicable to Role Enhancement

      We review the enhancement of a defendant’s offense level based on his role

as a manager or supervisor as a finding of fact reviewed for clear error. See United

States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005). We will not reverse for

clear error unless we are left with a “definite and firm conviction that a mistake has

been committed.” United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir.

2005) (quotation omitted).

      The Government must prove a § 3B1.1 aggravating-role enhancement by a

preponderance of the evidence. United States v. Alred, 144 F.3d 1405, 1421 (11th

Cir. 1998). Likewise, when a defendant objects to a fact in the PSR, the

Government bears the burden of proving the disputed fact by the preponderance of

the evidence. United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir. 1996).


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“Although not as rigorous as the reasonable doubt or clear and convincing

standards, the preponderance standard is not toothless. It is the district court’s

duty to ensure that the Government carries this burden by presenting reliable and

specific evidence.” Id. (quotation omitted).

      The district court may base factual findings on evidence that would not be

admissible at trial, including hearsay, but such evidence must bear sufficient

indicia of reliability, and the defendant must have an opportunity to rebut it.

United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010); U.S.S.G.

§ 6A1.3(a). Further, as long as hearsay statements are consistent with other

evidence concerning defendant’s role in the conspiracy, the district court’s

consideration of such statements will not constitute error. United States v. Gordon,

231 F.3d 750, 759 (11th Cir. 2000).

      The Sentencing Guidelines call for a three-level enhancement where “the

defendant was a manager or supervisor . . . and the criminal activity involved five

or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). Factors

that courts should consider when determining whether to apply this enhancement

include: (1) the exercise of decision-making authority; (2) the nature of the

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


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illegal activity; and (7) the degree of control and authority exercised over others.

Id. § 3B1.1, cmt. (n.4). “There is no requirement that all of the considerations have

to be present in any one case.” United States v. Caraballo, 595 F.3d 1214, 1231

(11th Cir. 2010) (quotation omitted).

       Evidence that the defendant recruited and instructed participants in the

conspiracy is sufficient to support a leadership enhancement. United States v.

Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006). However, a defendant’s status as a

middleman or distributor is insufficient to support a managerial role enhancement.

United States v. Yates, 990 F.2d 1179, 1182 (11th Cir. 1993). Rather, the

Government must establish that the defendant exercised “authority in the

organization that perpetrates the criminal conduct, the exertion of control, or

leadership.” Alred, 144 F.3d at 1422.

       B.    Evidence in Support of Role Enhancement

       The district court relied on three facts to support its inference that Defendant

was a supervisor or manager: 1 (1) that Defendant directed co-defendant Valle 2; (2)

that co-defendant Valle told Inspector Abru that Defendant “directed” other

runners of checksand that co-defendant Peterson-Granucci told Abru that

1
  Defendant disputes only the characterization of his actions as being those of a supervisor. He
does not disagree that the “criminal activity involved five or more participants or was otherwise
extensive.” See U.S.S.G. § 3B1.1(b).
2
 The PSR had originally indicated that Defendant also “directed” Mendoza, but the
Government agreed at sentencing that there was no evidence of any such direction.


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Defendant had pressured Defendant’s brother to deposit a check, against the will of

that brother.

      Defendant disputed the accuracy of these assertions at sentencing and, on

appeal, he repeats his argument that the Government failed to prove the above facts

by sufficient, reliable evidence. Further, as the Government appears to agree,

should the above facts be deemed not to be proved by a preponderance of reliable

evidence, any inference that Defendant functioned as a manager or supervisor in

the conspiracy must likewise fall. We agree with Defendant that the evidence in

this record is too thin to support the enhancement.

      As noted, that evidence was based entirely on that portion of Inspector

Abru’s testimony that recounted statements made by two of Defendant’s co-

defendants during their debriefing. But before turning to those statements, it is

instructive that many of the factual averments in the PSR, as well as some of

Inspector Abru’s testimony, supports an inference that, with the exception of

Peterson-Granucci, who was the source of all the checks, the other identified

participants in the check-cashing ring appear to have been on a relatively equal

footing with each other, with little specific evidence that defendant was

supervising anyone.

      Relying on interviews with Peterson-Granucci, the PSR indicates that co-

defendant Mendoza brought Defendant into the scheme, telling Peterson-Granucci


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that, like Mendoza, Defendant could deposit stolen checks into his own personal

bank accounts. Peterson-Granucci then provided stolen checks to both Defendant

and to Mendoza, directing these two men as to the amount to write on the blank

checks and providing Defendant with fraudulent passports in the names of the

victims of the theft that facilitated Defendant’s ability to cash the stolen checks.

      In fact, in his testimony, Inspector Abru suggested that, based on his own

investigation and debriefing of the defendants, it was his impression that Valle,

Mendoza, and Defendant seemed to occupy equivalent roles in the scheme.

Specifically, when asked on cross-examination whether Valle, once he had

received checks to cash, required or received any direction by Defendant as to how

to accomplish that task, Inspector Abru seemed to indicate that such direction was

not necessary.

      Q:     He [Valle] didn’t have to have any directions from Mr. Zapata or
             anybody else on how to do that [negotiate stolen checks] because he
             independently knew how to deposit checks?

      A:     They all working together. They were all coming to agreement
             together. . . .So, who directed at specific times Valle or who directed
             Mendoza at specific times, it’s hard to tell apart.

      Q:     Very good. So, in other words—and I think this is borne out by the
             overall facts. They all—these people all worked together, did they
             not?

      A:     Yes, they did.




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      Breaking down the above three facts that the Government argues support the

role enhancement, we examine first the allegation that Defendant supervised co-

defendant Valle. The evidence for this assertion is Abru’s understanding from

talking to Peterson-Granucci and Valle that, as to some of the checks that Valle

cashed, these checks had been sent to the address of Valle’s mother and that

Defendant had caused those checks to be sent to that address. We are not so much

concerned whether Abru’s hearsay declaration on this point is reliable or not as we

are that this fact, even if true, does not, by itself, confer a leadership role on

Defendant. In any enterprise involving multiple tasks or transactions, there must

be some coordination of the logistics. Once Valle agreed to begin cashing checks

in his own account, he first had to receive those checks before he could negotiate

them. We do not discern a leadership role based on whose idea it was—

Defendant’s or Valle’s—to send the checks to Valle’s mother’s address; that would

appear to be a minor detail in the scheme of things. See United States v. Martinez,

584 F.3d 1022, 1028 (11th Cir. 2009) (noting there is a distinction between

creating or managing a transaction and merely coordinating the transaction; the

person performing the latter duty may simply be “a subordinate charged with

dealing with the relatively minor details of completing that transaction.”)

      Second, Valle recounted to Inspector Abru that, on one occasion, he and

Defendant met with some of their check runners in Miami, at which meeting


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Defendant provided the checks to be negotiated to the runners and “also got the

cash back from the runners to give to everybody.” Although the Government has

not attempted to corroborate this hearsay statement, nor did it call Valle as a

witness, we will assume, for purposes of discussion, that Valle’s statement is

accurate so far as it goes. But the bigger problem is that the statement is so lacking

in detail that we cannot attribute a supervisory role to Defendant based on this

isolated and unelaborated comment. As we noted in Martinez, in discussing

similar inadequacies in the Government’s showing of a leadership role for the

defendant in a drug conspiracy, the failure to provide details as to how the

defendant organized or directed the criminal endeavor or what, if any degree, of

decision-making authority he exercised, makes it impossible to conclude that the

Government has met its burden of establishing that the defendant exercised a

leadership role. Id. at 1028, 1029 (“[T]here is precious little we can infer from the

bare, undisputed record that Martinez exercised any position of leadership or

authority. . . .The facts to which Martinez acceded merely reveal that he acted in

concert with his co-conspirators. . . .[and that he] ‘utilized other individuals’ to

mail and receive drug shipments.”)

      It may well be that the Government could have justified a role enhancement

for Defendant had its counsel further developed the information provided in the

terse and vague statements offered by the two co-defendants. Yet, the Government


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did not call these men to testify or otherwise put any meat on the bones of their

conclusory statements. That being so, we conclude that the above two assertions

do not provide a sufficient basis for imposing the leadership enhancement.

       The Government’s first two arguments having failed to persuade, that leaves

only the Government’s assertion that, on one occasion, Defendant pressured his

brother to deposit one of the stolen checks from Venezuela. 3 As Defendant

objected to this statement in the PSR, the burden was on the Government to

provide evidence in support of the PSR’s finding. See Bernardine, 73 F.3d at

1080. At sentencing, the Government offered only Inspector Abru’s hearsay

testimony that Peterson-Granucci had told him that Defendant had pressured his

brother into depositing a check. Although Defendant was vehement in his

objection that this statement lacked reliability or corroboration, the Government

offered little evidence, or even much of an argument, to demonstrate that Peterson-

Granucci’s statement was reliable. 4 Indeed, as recounted, the unexplained

3
  The Government does not appear to be arguing that the recruiting, alone, of his brother would
be sufficient in this case to render the defendant a supervisor in the scheme. Indeed, the
Government would be hard-pressed to make this argument, given that Peterson-Granucci
reportedly stated that Mendoza brought Defendant, as well as three other people, into the
scheme. Yet, the PSR did not recommend a role enhancement for Mendoza, nor as far as we can
determine did the Government ask for such an adjustment. Further, Peterson-Granucci also
stated that Valle brought two individuals of his own into the scheme. Again, the PSR
recommended no role enhancement for Valle.
4
  The Government solicited testimony from Inspector Abru that Defendant’s brother’s bank
records corroborated that the brother did, in fact, deposit a check. Yet, given Defendant’s denial
to Abru that he had pressured his brother into depositing the check and Abru’s perception that


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statement by Peterson-Granucci gives no hint as to how he would have known that

Defendant had pressured his brother. Was Peterson-Granucci there when the

pressure was applied? Did the brother or Defendant recount this to him? Neither

the PSR nor the testimony of Abru offers any insight.

       In fact, weighing in against a conclusion that the Government proved the

reliability of Peterson-Granucci’s assertion is further testimony of the postal

inspector on cross-examination as to his inquiry in this matter. The inspector

stated that he had asked Defendant about the allegation, during the several hours

that the latter spent being debriefed by the inspector, and Defendant denied ever

pressuring his brother. When asked whether he perceived Defendant to have been

“totally honest and open with you,” Inspector Abru answered, “As far as I can tell,

yes.” And, for whatever reason—whether he thought that Defendant was truthful

in his denial or that the matter was simply not that important—Inspector Abru

confirmed that he never made any effort to contact the brother to get the latter’s

version of events.

       Accordingly, assuming that a role enhancement would have been warranted

had the Government demonstrated that Defendant pressured his brother to deposit



Defendant seemed to have been honest during the debriefing, the fact that the brother may have
deposited a check sheds no light on whether he had done so only after having been pressured by
Defendant.


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a stolen check, the hearsay statement offered in support of this assertion was not a

sufficiently reliable basis for drawing that factual inference. 5 See Ghertler, 605

F.3d at 1269.

III.   CONCLUSION

       In short, the Government has offered scant evidence that Defendant

exercised a managerial or supervisory role in this conspiracy. Accordingly, we

conclude that the district court erred in applying the three-level aggravated-role

adjustment under U.S.S.G. § 3B1.1(b). Further, “remand for further findings is

inappropriate when the issue was before the court and the parties had an

opportunity to introduce relevant evidence. United States v. Canty, 570 F.3d 1251,

1257 (11th Cir. 2009) (citing United States v. Simons, 206 F.3d 392, 399 n.11 (4th

Cir. 2000)). We therefore vacate the sentence imposed and remand with

instructions to resentence Defendant without the three-level § 3B1.1(b)

enhancement.

5
  The Government has also argued that because Defendant did not specifically object to
Paragraph 34 in the PSR, this paragraph alone would support the enhancement. (Paragraph 34
stated that “[a]t the direction of Peterson-Granucci and [Defendant], Valle deposited checks into
his Citibank accounts ending in 5389 and 5745, withdrew money from these accounts inside of
Citibank and at various ATMs, and provided Peterson-Granucci and [Defendant] their share
from the deposited checks.” It is true that the district court may base factual findings on
undisputed statements in the PSR, and facts in the PSR are deemed admitted unless a party
objects to them before the sentencing court. See United States v. Beckles, 565 F.3d 832, 843-44
(11th Cir. 2009). We, however, disagree that Defendant failed to object to Paragraph 34. The
facts put forth in paragraph 34 are simply a slightly more detailed explanation of the facts put
forth in paragraph 39, and the record reflects that Defendant specifically objected to paragraph
39. Moreover, Defendant explicitly argued in his objections to the PSR and at sentencing that he
did not direct anyone, including Valle.


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REVERSED AND REMANDED.




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