United States v. Escarsiga

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 2, 2022
• Docket: 21-6043
• Status: Unpublished

Opinion

Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-6043 (D.C. No. 5:18-CR-00260-SLP-3) JORGE ANTONIO MEDINA (W.D. Okla.) ESCARSIGA, a/k/a Tono,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.** _________________________________

The district court applied a four-level aggravating-role enhancement under

§ 3B1.1(a) of the United States Sentencing Guidelines in calculating Jorge Antonio

Medina Escarsiga’s advisory guideline range. On appeal, Medina1 argues that this

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 1 Because Jorge Antonio Medina Escarsiga’s attorney and the government refer to him as “Medina,” we do the same. Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 2

was error, because he does not qualify as an “organizer or leader.” Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

In July 2016, law-enforcement officials in Oklahoma began investigating a

large-scale drug conspiracy involving the Irish Mob Gang that spanned Oklahoma,

Kansas, Texas, California, and Mexico.2 The investigation eventually led to a 97-

count superseding indictment with charges against Medina and 54 co-conspirators.

In the superseding indictment, Medina was charged with one count of drug

trafficking under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and one count of conspiracy

to launder money under 18 U.S.C. § 1956(h). Medina pleaded guilty to both counts.

Because Medina was responsible for trafficking more than 450 pounds of

methamphetamine, as well as some heroin, the probation office calculated Medina’s

base-level offense at 38—the maximum level under § 2D1.1(c)(1). To this, it added

an additional 10 offense levels. First, the probation office recommended three

separate two-level specific-offense characteristics: (1) the operation involved

firearms, under U.S.S.G. § 2D1.1(b)(1); (2) the drugs were imported from Mexico,

under U.S.S.G. § 2D1.1(b)(5); and (3) Medina was convicted of money laundering,

under U.S.S.G. § 2S1.1(b)(2)(B). Second, it recommended a four-level aggravating-

role adjustment, under § 3B1.1(a).3 Against the adjusted offense level of 48, the

2 The Irish Mob Gang is an Oklahoma-based prison gang. 3 On appeal, Medina contests only the aggravating-role adjustment.

2 Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 3

probation office recommended a three-level reduction for Medina’s timely

acceptance of responsibility. This left Medina’s total offense level at 45. But when a

total offense level exceeds the sentencing table’s maximum offense level of 43, the

guidelines instruct us to apply an offense level of 43. See U.S.S.G. Chapter 5, pt. A,

cmt. n.2. Combined with Medina’s criminal-history category of I, this led to an

advisory guideline range of life imprisonment.

Before sentencing, Medina objected to the aggravating-role enhancement. He

argued that the court lacked sufficient evidence to support a preponderance finding

that he had supervised or controlled any other member of the drug conspiracy, or that

he had any decision-making authority within the operation.

After reviewing the evidence submitted by Medina and the government, the

district court overruled Medina’s objection. But it varied downward from the

guideline’s recommendation of life imprisonment and sentenced Medina to 384

months. Medina now appeals.4

4 Medina argues that without § 3B1.1(a)’s four-level enhancement, his total offense level would have been 39, resulting in a guideline recommendation of 262 to 327 months’ imprisonment. This is incorrect. We reduce Medina’s total offense level to 43 only if after all the calculations are made, it exceeds that number. See U.S.S.G. Ch. 5, pt. A, cmt. n. 2; United States v. Craig, 808 F.3d 1249, 1253 (10th Cir. 2015) (reducing a defendant’s total offense from 49 to 43 after already crediting a reduction for acceptance of responsibility under § 3E1.1). So even if Medina had received a mere two-level aggravating-role adjustment under § 3B1.1(c), his total offense level would have remained at 43. And if he had received no role adjustment at all, his total offense level still would have been 41, which would have resulted in an advisory guideline range of 324 to 405 months’ imprisonment. That range encompasses his ultimate sentence of 384 months. See U.S.S.G. Chapter 5, pt. A. 3 Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 4

DISCUSSION

Medina challenges the district court’s decision to apply U.S.S.G. § 3B1.1(a)’s

four-level enhancement to his sentence. Whether § 3B1.1(a)’s enhancement applies is

a factual determination that we review for clear error. United States v. Rubio-

Sepulveda, 781 F. App’x 769, 771 (10th Cir. 2019). “Factual findings are clearly

erroneous only if they are without factual support in the record or if this court,

considering all the evidence, is left with a definite and firm conviction that a mistake

has been made.” United States v. Lozano, 921 F.3d 942, 946 (10th Cir. 2019).

U.S.S.G. § 3B1.1(a) calls for a four-level sentencing enhancement “[i]f the

defendant was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive[.]” “In distinguishing a leadership or

organizational role from one of mere management or supervision, titles such as

‘kingpin’ or ‘boss’ are not controlling.” U.S.S.G. § 3B1.1(a), cmt. n.4. Instead, the

guideline provides factors a court should consider, 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. In its “Background” section, the guideline commentary notes that the range of

role adjustments varies “based upon the size of the criminal organization (i.e., the

number of participants in the offense) and the degree to which the defendant was

responsible for committing the offense.” Id.

4 Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 5

We may look at whether the defendant could recruit drug sellers, control their

work, and pay them “on behalf of the conspiracy[.]” See United States v. Sallis, 533

F.3d 1218, 1223 (10th Cir. 2008). We may also consider whether the defendant

controlled how the drugs were sold, who set the prices, and who obtained what share

of the profits. Id.

But in reviewing these factors, we remain aware that the key inquiry is

“control, organization, and responsibility for the actions of other individuals because

§ 3B1.1(a) is an enhancement for organizers or leaders, not for important or essential

figures.” Id. (quoting United States v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995)).

The mere fact that a defendant “had some authority to coordinate or control others is

not enough to qualify him as a § 3B1.1(a) ‘organizer or leader.’” Rubio-Sepulveda,

781 F. App’x at 773. The enhancement “applies only when the defendant had

‘decision-making authority or control over a subordinate.’” United States v. Pena-

Hermosillo, 522 F.3d 1108, 1112 (10th Cir. 2008) (quoting United States v. Roberts,

14 F.3d 502, 524 (10th Cir. 1993)). In other words, we look not just for the “mere

existence” of control but rather “the degree.” Rubio-Sepulveda, 781 F. App’x at 774

(emphasis in original). Thus, one’s “role as a supplier of drugs to others, standing

alone, is not enough to justify the leader enhancement.” Sallis, 533 F.3d at 1223–24

(cleaned up).

Though Medina acknowledges his involvement in the drug operation, he

argues that there is insufficient evidence to justify § 3B1.1(a)’s application because

he wasn’t an “organizer or leader.” According to Medina, he acted merely as a

5 Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 6

mouthpiece for his boss, Geraldo Bustamante. Medina contends that no evidence

shows that he controlled other participants, paid the sellers, or set the price of the

drugs.

The factors identified by the guidelines and in our cases are neither mandatory

nor exclusive. See United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir. 1995)

(“The Guidelines do not require that each of these factors be satisfied for a section

3B1.1 enhancement to apply.”). And in any event, Medina fails to acknowledge the

government’s evidence submitted to the court at the sentencing hearing.

There, the government submitted recordings of ten intercepted phone calls that

highlighted Medina’s leadership authority in the drug operation. In one call, Medina

and one of his buyers, Rogelio Velasquez, discussed the arrangements of another

drug sale.5

 In that call, Medina noted how one of his couriers had started working for someone else, but that he had “already found another guy” who could deliver drugs into the United States within a week. Appellee R. vol. 1 at 106–07.

 Medina also explained to Velasquez that he was “forming the team there.” Appellee R. vol. 1 at 108.

In another call, Velasquez mentioned that an associate wanted him to start

buying drugs from someone other than Medina. But Velasquez said he would

continue to purchase from Medina.

 In that call, Medina mentioned that it was becoming expensive to pay his couriers because it was costing him $20,000 for each trip.

5 Velasquez “was believed to be the principal source of supply for the leading members of the [Irish Mob Gang].” Appellee R. vol. 2 at 12. 6 Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 7

Appellee R. vol. 1 at 117 (“It’s just that the trip is expensive to me. Every time I send the boy, I have to pay 20,000 dollars for the trip.”).

 Medina also assured Velasquez that his courier was reliable and would help Velasquez with the logistics of his drug sales. Appellee R. vol. 1 at 116–18 (“Well, all right. Or I am going to call that boy to see if the boy can help you out from over there, for you to come over, then for you to talk it over with the boy, and for the boy to do your errands.”).

And in another call, Velasquez told Medina that his money was ready to be

picked up.

 Medina said that he would have his courier pick up the money.

 In that same call, Medina told Velasquez that a large supply of his drugs had been raided while they were being loaded on the plane. But Medina also mentioned to Velasquez to be ready with money because he will “supply [him] big time.” Appellee R. vol. 1 at 143.

Considering this evidence, the district court did not clearly err by applying

§ 3B1.1(a)’s four-level enhancement. The court had plenty of evidence that Medina

had acted as an “organizer or leader”—he recruited accomplices, had the authority to

control their activities, and paid them on behalf of the conspiracy.

And though Medina insists that he was acting only at the behest of Mr.

Bustamante, the district court rejected that argument. It found that the “notion of

some Keyser Soze out there who is the true hand that is guiding all of this is

absolutely frivolous and without merit.”6 Appellant R. at 231–32. Given the

6 In the film The Usual Suspects, “Keyser Soze” is a legendary crime lord who had manipulated other criminals and eluded police capture for years.

7 Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 8

government’s evidence and that § 3B1.1 recognizes that “[t]here can, of course, be

more than one person who qualifies as a leader or organizer of a criminal association

or conspiracy,” that conclusion was not clearly erroneous. U.S.S.G. § 3B1.1(a), cmt.

n.4.

In sum, we are not “left with a definite and firm conviction” that the district

court clearly erred by applying § 3B1.1(a)’s enhancement at Medina’s sentencing.7

CONCLUSION

For these reasons, we affirm.

Entered for the Court

Gregory A. Phillips Circuit Judge

7 The government also argues that any error in applying the four-level enhancement would be harmless because, in its view, Medina would still qualify for a three-level enhancement under § 3B1.1(b). That enhancement applies to a “manager or supervisor (but not an organizer or leader).” U.S.S.G. § 3B1.1(b). With a three- level role adjustment, Medina’s total offense level would remain at 43. But because we conclude that the district court did not clearly err in applying § 3B1.1(a), we have no reason to evaluate § 3B1.1(b). 8