United States v. Seanez, 10th Cir. (2007)
United States v. Seanez, 10th Cir. (2007)
v.
SERGIO SEANEZ,
Defendant-Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10 th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1.
bundles. Inside the residence, the agents found two plastic bags in the washer and
dryer, identical to those in the RV, and an unloaded Taurus .357 M agnum
revolver, in plain view, on the entertainment stand in the master bedroom.
The agents talked to Seanezs 12-year-old daughter, one of his nine
children, who informed the agents that she had helped her father load marijuana
into the boat. The agents tested the green leafy substance inside the recovered
bundles and confirmed that the substance was marijuana. A total net weight of
231.2 kilograms of marijuana was discovered.
According to Lopez-Pinedos post-arrest statement, Seanez hired him to
install a false compartment in the boat for $1,000. Lopez-Pinedo corroborated the
informants information by stating that the boat was supposed to be towed to an
undisclosed location on October 25, 2005, and added that a man named Daniel
was hired by Homie (Seanez) to tow the boat. Lopez-Pinedo further noted that
Seanez had picked up the marijuana on October 23, 2005, in El Paso, Texas, and
had transported the drugs to his residence, where he stored them, until moving the
drugs onto the boat. Seanez provided little in the way of a post-arrest statement
except, [t]hats the way the game is played. R. vol. I, Presentence Investigation
Report (PSR) 14. He maintained that his name was A rturo Cisneros until
fingerprinting revealed his true identity as Sergio Seanez.
On January 18, 2006, a two count Indictment was filed in the United States
District Court for the District of New M exico. Seanez pleaded guilty to both
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Cir. 2006) (internal quotation marks omitted; quoting United States v. M artinez,
418 F.3d 1130, 1133 (10 th Cir. 2005)). The government bears the burden of
proving sentencing enhancements by a preponderance of the evidence. See, e.g.,
United States v. Kirk, 894 F.2d 1162, 1164 (10 th Cir. 1990). The courts ultimate
sentencing decision is reviewed for reasonableness.
1185 (internal quotation marks omitted; quoting United States v. Pompey, 264
F.3d 1176, 1180 (10 th Cir. 2001)); see United States v. W illiams, 431 F.3d 1234,
1237 (10 th Cir. 2005). That means the government need only show the dangerous
weapon was located in the general vicinity of where part of the drug activity
occurred. See United States v. Alexander, 292 F.3d 1226, 1229, 1231 (10 th Cir.
2002). If such possession is established, then the burden shifts to the defendant to
show that it is clearly improbable the weapon was connected with the offense.
United States v. Heckard, 238 F.3d 1222, 1233 (10 th Cir. 2001).
In this instance, the government offered proof of possession sufficient to
trigger the two-level enhancement by showing that Seanez had both the drugs and
the gun easily accessible inside his residence, which he described as a twobedroom mobile home trailer. See R. vol. III, at 6. Consequently, there was
proximity between the drugs and the gun. Seanez has pointed to no credible
evidence to demonstrate it is clearly improbable that the gun was connected to his
drug trafficking activity. Seanez does not challenge that the gun is his; and,
indeed, he concedes that evidence links the drugs to his home where the gun was
found. Aplt. Br. at 12 (W hile there is some evidence that the packages of
marijuana had been stored for less than one day in M r. Seanezs house, there is no
evidence that the marijuana was stored in the master bedroom.).
Nothing in our case law or the Guidelines require that the drugs and gun be
found in the same room of a residence. Despite Seanezs objections, the facts of
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this case directly implicate the concerns that the Guidelines enhancement was
designed to address. See U.S.S.G. 2D1.1 cmt. n.3 (The enhancement for
weapon possession reflects the increased danger of violence when drug traffickers
possess weapons.). The Guidelines do not distinguish between a loaded or
unloaded weapon. Neither should we: both can cause fear and escalate the danger
associated with a drug enterprise. Seanez has not offered us any reason to believe
that the firearm was unconnected to his criminal conduct. W e conclude that the
government satisfied its burden as to the two-level enhancement for firearm
possession.
B. Leadership Role
Seanez challenges the two-level upward adjustment for being an organizer,
leader, [and] manager of the marijuana distribution scheme. See U.S.S.G.
3B1.1(c). He asserts that the evidence is insufficient to support the increase
because the only evidence accusing Seanez of holding a leadership role comes
from individuals who are motivated to place the blame elsewhere. Aplt. Br. at 16.
In fact, Seanez claims that as far as the informant knew Flaco could have been
Homies boss. Id. at 15. W e disagree.
The Guidelines call for the enhancement [i]f the defendant was an
organizer, leader, manager, or supervisor. U.S.S.G. 3B1.1(c). The Guidelines
comm entary delineates factors to be considered by a sentencing court when
evaluating whether a defendant is an organizer or leader. United States v. Suitor,
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253 F.3d 1206, 1210 (10 th Cir. 2001). They include the nature of a defendants
participation in the offense, and, more specifically, the extent to which the
defendant exercised decision-making authority, planned and organized the
offense, recruited accomplices, and exhibited control and authority over others.
See U.S.S.G. 3B1.1 cmt. n.4. M ore than one person involved in a criminal
association or conspiracy can qualify for the enhancement (e.g., there can be
more than one leader of a criminal conspiracy). Id. A defendants sphere of
influence, however, need not be extensive; he may operate in this heightened
capacity as to one or more other participants. Id. at cmt. n.2 (emphasis added).
Two sources independently pointed to Seanez as the leader, organizer, and
manager of the drug trafficking. W hile a confidential informants credibility
should be carefully scrutinized, the informants information proved to be quite
accurate. In significant respects, the information was consistent with the agents
observations at Seanezs residence and the subsequent adm issions of Seanezs
accomplice, Lopez-Pinedo.
It is readily apparent from Lopez-Pinedos statement to the agents that
Seanez recruited Lopez-Pinedo to assist Seanez in concealing the marijuana; that
Seanez was the person who was going to pay Lopez-Pinedo for his work; and that
Seanez also had recruited and agreed to pay another individual who was given the
task of transporting the marijuana. Furthermore, Seanez exercised ultimate
control over the subject matter of the criminal enterprise. The marijuana was
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being stored at Seanezs home and was being concealed in a boat on his property.
In sum, we have no evidence suggesting that Seanez was anything other
than a leader, organizer, and manager in this criminal conspiracy. The district
court did not err in finding the 3B1.1(c) enhancement to be appropriate.
C. Use of a M inor
Finally, Seanez objects to the sentence enhancement for using a minor in
his criminal activity. The G uidelines require a two-level upward adjustment [i]f
the defendant used or attempted to use a person less than eighteen years of age to
comm it the offense or assist in avoiding detection of, or apprehension for, the
offense. See U.S.S.G. 3B1.4. This enhancement is applicable when a
defendant affirmatively directs, trains, intimidates, or encourages a minor to
participate in the crime. Id. at cmt. n.1; see Suitor, 253 F.3d at 1210.
According to the PSR, Seanezs 12-year-old daughter told agents searching
the familys residence that she had helped her father load marijuana into the boat.
W hen he filed his PSR objections, Seanez put forward a sw orn affidavit of his
daughter, dated July 27, 2006, in w hich she claimed to have never admitted to
any law enforcement officer that I helped my father load the marijuana in the
boat, and, as a factual matter, she denied ever engaging in such loading at my
fathers direction. Doc. 45, Attachment A, 4.
Although Seanez correctly identifies a weakness in the governments proof
concerning this enhancement, ultimately we conclude that the district court did
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not err in finding that the government carried its burden. In particular, record
evidence supports the courts factual findings concerning the statement of
Seanezs daughter.
On the one hand, the district court had the agents statement reported in the
PSR (a statement the agents did not disavow) that at the time of the arrest,
Seanezs daughter told them she assisted her father in loading marijuana onto the
boat. And, on the other hand, it had a sworn affidavit of the daughter given
approximately 10 months after the events at issue in which she denied making the
statement to the agents. W e cannot conclude that the district court clearly erred in
crediting the first statement. It was reported by federal agents presumably
engaged in the ordinary course of their duties and was represented by them as
being uttered at the time of the events at issue, when one might reasonably expect
that the daughters memory would be better than at the time she produced the
affidavit. Significantly, the first statement also reportedly was made by the
daughter before she had an opportunity to seriously consider the consequences of
providing information that was contrary to her fathers interests.
The district court was not required to shelve its common sense and worldly
knowledge, especially concerning the tensions and motivations that underlie
human conduct, in deciding, on balance, which statement of the daughter to
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believe. 2 Indeed, the district court emphasized the importance of the timing of the
daughters statement when deciding to employ the 3B1.4 enhancement. See R.
vol. III, at 5 (where the court inquired at the sentencing hearing if the daughter
gave the statement at the time of the arrest and, upon receiving confirmation of
that fact, noted [t]hats good enough for me). Accordingly, we discern no clear
error in the district courts fact-finding concerning this enhancement.
III. Conclusion
W e conclude that the district courts factual findings regarding the disputed
Guidelines enhancements were supported by the record and, therefore, it did not
clearly err. Furthermore, Seanezs conduct fit squarely into the plain language of
the applicable Guidelines. Accordingly, we AFFIRM the sentence.
Jerome A. Holmes
Circuit Judge