Filed: Patrick Fisher
Filed: Patrick Fisher
MAR 13 1998
PATRICK FISHER
Clerk
No. 97-6022
(W.D. Okla.)
(D. Ct. No. CR-96-115-L)
ALFREDO VEGA,
Defendant - Appellant.
number of others. The Vega brothers, who sometimes acted alone and other times
acted jointly, were links in a loose-knit organization of marijuana dealers. They
often sold marijuana to a man named Richard Jarvis in Oklahoma City. They also
would arrange to transport the drugs to Mr. Jarvis.
After his arrest, the defendant pleaded guilty to two counts of a forty-three
count indictment. The presentence report recommended that, under section
3B1.1(a) of the Sentencing Guidelines, the district court impose a four-level
enhancement to Mr. Vegas sentence. Under that subsection, a court must impose
a four-level enhancement if the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive. U.S.S.G. 3B1.1(a) (1997). At the sentencing hearing and in a
written opinion that followed, the district court found that the evidence did not
warrant the four-level enhancement under section 3B1.1(a). Instead, the court
enhanced the defendants offense level by two levels for his being a manager of
criminal activity under section 3B1.1(c). The defendant appeals on two different
grounds: (1) that the district courts factual findings are clearly erroneous, and (2)
that the facts, as found by the district court, do not support an enhancement under
section 3B1.1(c). We exercise jurisdiction under 28 U.S.C. 1291 and affirm.
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Discussion
The defendant first argues that the factual findings of the district court are
in error. We will overturn a district courts findings of fact only if they are
clearly erroneous. See United States v. Farnsworth, 92 F.3d 1001, 1009 (10th
Cir.), cert. denied, 117 S. Ct. 596 (1996). We will uphold them unless they are
unsupported by the record or, after reviewing the record, we are left with the
definite and firm conviction that a mistake has been made. United States v.
Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990) (citations and internal quotation
marks omitted).
The district court imposed its two-level enhancement under section
3B1.1(c). That provision instructs: If the defendant was an organizer, leader,
manager, or supervisor in any criminal activity other than described in (a) or (b),
increase by two levels. The district court based the enhancement on the
following facts:
The evidence establishes that defendant exercised management
responsibility over the money involved in the transactions.
The funds for transportation expenses were wire-transferred to
defendant, who then distributed the funds to the individuals
who transported the contraband. This is a sufficient exercise
of managerial activity to impose the two-level enhancement.
United States v. Vega, No. 96-115-L, slip. op. at 3 (W.D. Okla. Dec. 11,
1996). There is substantial support for these findings in the testimony of
Robert Ryan, a police officer from Norman, Oklahoma, who was the only
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person to testify at the sentencing hearing. Officer Ryan learned about the
defendants criminal activity during an assignment to the Drug Enforcement
Administration as a task force officer. Officer Ryan testified that Mr. Jarvis
purchased marijuana from the defendant through money wires. In his wires,
Jarvis would include money to cover the expense of transporting the marijuana
to Oklahoma City. Upon receiving Jarviss money, the defendant would pay a
man named Ken Moore to deliver the marijuana to Jarvis. According to the
testimony, Mr. Moore was under the impression that he was working for the
defendant.
The defendant makes much of the fact that there was no evidence that
Alfredo Vega held a position of authority over his two brothers or that he was
the boss of the organization. As the excerpt from the district court opinion
makes clear, however, the district court did not rely on any findings about the
relationship among the brothers, or about Alfredos position in the larger
criminal organization, in imposing the enhancement. In fact, the court
explicitly refrained from making those factual findings earlier in the opinion.
The district court relied only on the fact that the defendant paid Mr. Moore to
deliver marijuana to Oklahoma City. In light of Officer Ryans testimony, the
district courts findings are not clearly erroneous.
Next, the defendant argues that the facts found by the district court
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section 3B1.1(c). The defendant is correct on this point. See United States v.
Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995) (finding that management of
assets is not enough to support an enhancement under section 3B1.1(c));
United States v. Katora, 981 F.2d 1398, 1404 (3d Cir. 1992) (same); United
States v. Giraldo, 111 F.3d 21, 24 (5th Cir.) (same), cert. denied, 118 S. Ct.
322 (1997).
The defendant assumes that because management of money alone is
insufficient, and because the district court relied on the defendants
management of the money in imposing the enhancement, the district court
erred. We disagree. While it is true that the mere possession of money is
insufficient to support an enhancement for being a manager under section
3B1.1(c), it is equally true that ones control over the cash flow of a criminal
enterprise is usually indicative of at least some authority over others in the
organization.
The district court did not base the enhancement solely on the fact that
Jarvis wired money to the defendant. Only an overly restrictive reading of the
courts opinion would lead to that conclusion. In determining that the
defendant had a managerial role, the court emphasized that Jarvis wired the
money to the defendant, who then distributed the funds to the individuals who
transported the contraband. Vega, slip. op. at 3 (emphasis added).
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Applying the most reasonable interpretation of the courts language, the court
imposed the enhancement not simply because the defendant held the money,
but rather because his possession of the money gave him control over
distributors such as Ken Moore. Thus, although the defendant correctly
identified a limit on the reach of section 3B1.1(c), the district court did not
exceed it.
That does not entirely dispose of the defendants appeal, however. We
must still consider whether the degree of control that Mr. Vega exercised over
Mr. Moore qualifies as management under section 3B1.1(c). Unlike the
legal question just discussed, this determination primarily involves a factual
inquiry because it hinges largely on how much control the defendant had over
Mr. Moores activities. Therefore, on this particular question, we defer to the
district courts decision unless it was clearly erroneous. See Ricketts, 792
F.2d at 961.
Our cases have interpreted section 3B1.1(c) liberally. A court may
enhance a sentence under section 3B1.1(c) upon a showing that the defendant
exercised any degree of direction or control over someone subordinate to him
in the distribution scheme. United States v. Backas, 901 F.2d 1528, 1530
(10th Cir. 1990). According to the testimony at the sentencing hearing, Mr.
Vega regularly paid Mr. Moore to drive marijuana to Oklahoma City. Mr.
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Moore made his trips at the direction of Mr. Vega, and Mr. Moore understood
himself to be in the employ of Mr. Vega. See Sent. Hrg at 29 ([T]here were
times when Alfredo Vega may have supervised or gave direction to one person
during one drug transaction . . . .) (statement of defendants counsel). This
testimony provides adequate support for the district courts conclusion. The
courts finding is not clearly erroneous.
Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district
court.
ENTERED FOR THE COURT,
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