United States v. Haleodora Zepeta

389 F. App'x 907
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 27, 2010
Docket09-13600
StatusUnpublished
Cited by3 cases

This text of 389 F. App'x 907 (United States v. Haleodora Zepeta) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Haleodora Zepeta, 389 F. App'x 907 (11th Cir. 2010).

Opinion

PER CURIAM:

Haleodora Zepeta appeals his 151-month total sentence for conspiracy to possess and possession with intent to distribute at least 5 kilograms of cocaine. He argues that the district court clearly erred by applying a three-level enhancement, pursuant to U.S.S.G. § 3B1.1(b), based on its finding that he was a manager or supervisor of an offense involving five or more participants. For the reasons set forth below, we affirm.

I.

A federal grand jury charged Zepeta with conspiring to possess with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 846 (Count 3); and possessing with intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §§ 812 and 841(a)(1), (b)(1)(A) (Count 4). Zepeta pled guilty to Counts 3 and 4 pursuant to a written plea agreement. The district court accepted Zepe-ta’s plea and adjudicated him guilty of those two counts.

*908 According to the presentence investigation report (“PSI”), on October 31, 2006, Zepeta contacted a confidential source (“CS”), stating that he was in Mexico and needed the CS to deliver 55 kilograms of cocaine and pick up the proceeds of the sale at an Atlanta-area location. On November 14, 2006, Zepeta contacted the CS and gave him the telephone numbers of Michael Patterson and Randy Zepeta (“Randy”). The CS arranged a meeting with Patterson and Randy. At the meeting, Patterson and Randy transferred approximately 20 kilograms of cocaine into the CS’s vehicle and left. Zepeta then contacted the CS and instructed him to deliver the cocaine to Alvarado-Mojica. Law enforcement officials replaced the cocaine with fake narcotics, which the CS delivered to Alvarado-Mojica. Agents also followed Patterson and Randy, who met with a woman named Cecilia Zuaso. Zuaso gave Patterson a small box believed to contain $20,000.

According to paragraph 23 of the PSI, after his arrest, Patterson told law enforcement agents that he and Randy drove from Texas to Atlanta with 20 kilograms of cocaine hidden in Patterson’s truck. He stated that Zepeta instructed him to meet with a man and deliver the cocaine. Paragraph 24 of the PSI stated that Patterson also told investigators that, in 2006, he had delivered cocaine from Texas to Atlanta for Zepeta on ten occasions.

The PSI set Zepeta’s base offense level at 38, pursuant to U.S.S.G. § 2Dl.l(c)(l), stating that Zepeta could be held accountable for at least 220 kilograms of cocaine, based in part on Patterson’s post-arrest statements regarding the additional cocaine deliveries he made for Zepeta. Zepeta’s offense level was increased by four levels, pursuant to § 3Bl.l(a), because Zepeta was an organizer or leader of the offense, which involved five or more participants or was otherwise extensive. Zepeta received a three-level reduction, pursuant to § 3El.l(a) and (b), for acceptance of responsibility. Thus, Zepeta’s total offense level was set at level 39. Zepe-ta’s total offense level of 39 combined with his criminal history category of I to yield a guideline imprisonment range of 262 to 327 months.

Zepeta filed objections to the PSI. First, Zepeta argued that, under his plea agreement, he could be held accountable for only 20 kilograms of cocaine. He specifically objected to paragraph 24 of the PSI, which set forth Patterson’s statements about the additional cocaine deliveries he made for Zepeta. Zepeta also objected to the four-level aggravating role enhancement, arguing that “there [wa]s no evidence to suggest that [he] and the other co-conspirators were much more than a small courier group.”

At Zepeta’s sentencing hearing, the district court sustained Zepeta’s objection to the drug quantity, listed in the PSI and reduced Zepeta’s base offense level to level 34. With respect to the four-level § 3Bl.l(a) aggravating role enhancement, Zepeta argued that the offense involved fewer than five participants, because Zua-so was merely a “buyer.” He contended that the offense was “a one-time drug deal,” and that the § 3Bl.l(a) enhancement required the existence of a “genuine enterprise.” Zepeta argued that Patterson’s statement regarding prior narcotics deliveries was unreliable, because it was not made at trial.

The government responded that the four-level enhancement did not rely upon Patterson’s post-arrest statements, and that evidence of the additional trips “ha[d] been and should be excluded.” It asserted that the enhancement was based on the fact that the offense involved five or more participants — Zepeta, Patterson, Randy, Alvarado-Mojica, and Zuaso — and that *909 Zepeta instructed the CS to receive the cocaine delivery and transfer the cocaine to another individual. The court determined that the government had shown that Zepeta managed or supervised five or more individuals, but failed to show that he was an organizer or leader. Thus, it applied a three-level enhancement under § 3331.1(b), rather than a four-level enhancement under § 3131.1(a).

Based on its findings, the court determined that Zepeta was subject to a guideline range of 151 to 188 months’ imprisonment. It sentenced Zepeta to 151 months’ imprisonment on each of Counts 3 and 4, to be served concurrently, followed by a 5-year term of supervised release.

II.

“[We] review[ ] a sentencing court’s determination of a defendant’s role in the crime for clear error.” United States v. Gupta, 463 F.3d 1182, 1197 (11th Cir.2006). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and' firm conviction that a mistake has been committed.” United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir.2007) (quotation omitted).

The Sentencing Guidelines instruct courts to increase a defendant’s offense level by three levels “[i]f the defendant was a manager or supervisor (but not an organizer or leader) [of the offense] and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(b). In determining the defendant’s role in the offense, the district court should consider the following factors:

[T]he 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.

U.S.S.G. § 3B1.1, comment, (n.4). “There is no requirement that all the considerations have to be present in any one case.” United States v. Ramirez,

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389 F. App'x 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-haleodora-zepeta-ca11-2010.