United States v. Jesse Babauta

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 4, 2023
• Docket: 21-10252
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 4 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10252

Plaintiff-Appellee, D.C. No. 1:20-cr-00012-RVM-1 v.

JESSE REYES BABAUTA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief District Judge, Presiding

Submitted June 28, 2023** Honolulu, Hawaii

Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.

The district court sentenced Jesse Reyes Babauta to 168 months’

imprisonment after he pleaded guilty to one count of conspiracy to possess

methamphetamine with the intent to distribute. Two co-defendants, Noribel

Mendez and Mary Herradura, worked for Babauta by opening postal boxes,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). receiving packages of methamphetamine, delivering the packages to him, and

sending money through bank transactions on his behalf. Babauta appeals the

district court’s application of three sentencing enhancements. We review “the

district court’s factual findings for clear error, its construction of the United States

Sentencing Guidelines de novo, and its application of the Guidelines to the facts

for abuse of discretion.” United States v. Harris, 999 F.3d 1233, 1235 (9th Cir.

2021) (citation omitted). We have jurisdiction under 18 U.S.C. § 3742(a), and we

affirm.

1. The district court did not abuse its discretion in applying a sentencing

enhancement under U.S.S.G. § 2D1.1(b)(2) after finding that Babauta “made a

credible threat to use violence” against Mendez. Babauta concedes that “there is

ample evidence on the record that [he] made apparent threats to Ms. Mendez both

via telephone and text message,” but he asserts that his statements—e.g., “you’re

going to get it,” “I’m burning everything,” and “I’m going to burn you

alive”—were not credible threats because he “says those kinds of things to her all

the time.” Whether a threat is credible does not depend on whether the recipient of

the threat believed it. See United States v. Perez, 962 F.3d 420, 451 (9th Cir.

2020) (upholding enhancement when defendant threatened to throw someone off a

building without discussing whether the person believed the threat). Even if such a

2 requirement existed, the record establishes that Mendez believed and was fearful of

Babauta’s threats.

2. The district court did not abuse its discretion in applying a sentencing

enhancement under U.S.S.G. § 3B1.1(c) after finding that Babauta was the

“organizer, leader, manager, [or] supervisor” of the conspiracy to distribute

methamphetamine. Babauta contends that because Mendez and Herradura

willingly participated in the scheme to support their drug habit, he never exercised

the requisite control over them. His focus on the motivations of Mendez and

Herradura is misdirected. See U.S.S.G. § 3B1.1 cmt. n.4. Babauta recruited

Mendez and Herradura, and the record establishes that he exercised significant

decision-making authority, was the central figure in planning, organizing, and

directing the scheme, and exercised a significant degree of control and authority

over Mendez and Herradura. See, e.g., United States v. Beltran, 165 F.3d 1266,

1271 (9th Cir. 1999), as amended (Mar. 26, 1999) (upholding enhancement where

defendant “supervised” two other individuals and “directed them to return to [his]

residence to pick up a quantity of methamphetamine that was to be delivered”).

3. The district court did not abuse its discretion in applying a two-level

sentencing enhancement under U.S.S.G. § 2D1.1(b)(16)(A). A defendant who

receives an adjustment under § 3B1.1 may have their sentence enhanced under

§ 2D1.1(b)(16)(A) if the following factors are found: (i) the defendant used fear or

3 affection to involve another individual in an illegal drug trafficking offense; (ii) the

individual received little or no compensation for their involvement in the offense;

and (iii) the individual had minimal knowledge of the scope and structure of the

enterprise. The record supports the district court’s findings that Babauta used fear

or affection to involve Mendez in the offense and that Mendez had minimal

knowledge of the scope and structure of the enterprise. Babauta contends on

appeal that the district court erred by failing to consider the value of the drugs and

housing Mendez received.

Section 2D1.1(b)(16)(A) does not specify whether the term “compensation”

is limited to monetary payment. But an adjoining section, § 2D1.1(b)(17)(B),

expressly provides that compensation must be “monetary,” indicating that the

exclusion of the term “monetary” from § 2D1.1(b)(16)(A) was intentional and that

“compensation” under this provision may encompass other forms of valuable

payment.1 See Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006) (holding that “a

negative inference may be drawn from the exclusion of language from one

statutory provision that is included in other provisions of the same statute”).

To the extent this claim was adequately preserved below, Babauta has not

demonstrated that the district court failed to consider other nonmonetary forms of

1 U.S.S.G. § 2D1.1(b)(17) provides for a four-level sentencing reduction for a defendant who “received no monetary compensation from the illegal purchase, sale, transport, or storage of controlled substances.”

4 compensation. The district court adopted the factual findings from the presentence

report, which indicate that Babauta furnished Mendez with a place to stay and

methamphetamine in exchange for her help in picking up envelopes containing

methamphetamine from the post office. Mendez told investigators that “she did

not get paid, but felt obligated because she was homeless and had nowhere to go.”

Government counsel also made the district court aware of these circumstances at

sentencing. Given the record, we are not persuaded that the district court clearly

erred in finding that Mendez received “little or no compensation” for her

participation in the offense.2 See United States v. Garcia 135 F.3d 667, 671 (9th

Cir. 1998) (“Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” (quoting Anderson

v. City of Bessemer City, 470 U.S. 564, 574 (1985))); see also United States v.

Christensen, 828 F.3d 763, 789 (9th Cir. 2015) (“A factual finding is clearly

erroneous only where it is ‘(1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts of the record.’” (citation omitted)).

AFFIRMED.

2 Because we conclude that the district court did not err in applying the enhancement under U.S.S.G. § 2D1.1(b)(16)(A), we need not address Babauta’s challenge to the alternative enhancement under U.S.S.G. § 2D1.1(b)(16)(C).