United States v. Maria Isabel Gonzalez Maldonado

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 17, 2021
• Docket: 20-13163
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13163 Non-Argument Calendar ________________________

D.C. Docket No. 2:19-cr-00024-SCJ-JCF-6

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIA ISABEL GONZALEZ MALDONADO, a.k.a. Maria Isabel Gonzalez-Maldonado,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(May 17, 2021)

Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13163 Date Filed: 05/17/2021 Page: 2 of 14

Maria Isabel Gonzalez Maldonado appeals her sentence of 97 months’

imprisonment for one count of conspiracy to possess with intent to distribute

methamphetamine and one count of possession with intent to distribute fifty grams

or more of methamphetamine. She raises two arguments on appeal: (1) the district

court miscalculated the total quantity of methamphetamine attributed to her in her

role in the conspiracy and (2) the district court should have reduced her base-offense

level as a “minor participant.” We disagree on both points and affirm her sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A federal grand jury indicted Maldonado and six co-defendants on twenty

total counts relating to a methamphetamine conspiracy. The indictment charged

Maldonado only in Count One, conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a), (b)(1)(C), and 846, and Count

Twelve, possession with intent to distribute at least 50 grams of methamphetamine

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Maldonado ultimately pled guilty

to both counts and the district court sentenced her to 97 months’ imprisonment. The

salient facts are as follows.

Throughout 2018 and 2019, a joint investigation between the Georgia Bureau

of Investigation and the Federal Bureau of Investigation led to agents intercepting

phone calls and text messages between Maldonado and co-defendant Teofilo Carlos

Santana Medrano. In the early months of 2019, Santana visited Maldonado’s house

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several times to obtain an unknown amount of methamphetamine to distribute to the

other co-defendants, who, in turn, sold it to their buyers. Because Maldonado

challenges the district court’s calculation of the total amount of the unknown and

unseized drugs, we recount the following in detail.

On February 15, 2019, Maldonado messaged Santana: “The man called me.

If I give you one when do you think you’d have the paper?” Santana responded that

he would have it soon, but that he “might be able to get two bucks together by today.”

Maldonado replied, saying that she would talk to the man, and later informed

Santana that the deal would happen. She asked Santana if she could give this

unidentified man Santana’s phone number so they could arrange a place to meet.

Additional messages later established that Santana had agreed to bring something to

Maldonado. Agents believed that Maldonado gave one kilogram of

methamphetamine to Santana, who provided a $2,000 “partial” payment in return.

Two days later, on February 17, 2019, Maldonado asked Santana if he wanted

a “half” the next day. Santana replied, telling Maldonado that his friend would get

the “half” on February 20, 2019. Santana requested Maldonado’s bank-account

information, and GPS tracking placed Santana at Maldonado’s house later that day.

Agents believed that Santana visited Maldonado to obtain 0.5 kilogram or more of

methamphetamine.

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A failed deal for another 0.5 kilogram of methamphetamine happened the next

day, but the two closed a deal for another 1.5 kilograms on February 28, 2019. On

March 1, Santana contacted Maldonado to see when she would “bring the rest,” and

agents believed, based on GPS tracking, that Santana went to Maldonado’s residence

to obtain the remaining amount of the requested methamphetamine from

Maldonado. On March 2, 2019, Santana told Maldonado that he would send

someone over to her house with “500” and would bring her “the seven” later that

afternoon. He asked Maldonado to set aside “one and a half,” which the agents

believed to be 1.5 kilograms of methamphetamine.

The back and forth came to an end on May 9, 2019, when federal agents

executed a search warrant, arrested Maldonado, and seized numerous cell phones.

Maldonado pled guilty to both counts against her without a plea agreement from the

government. The district court accepted her change of plea.

The presentence investigation report calculated Maldonado’s base offense

level at a 34. This level was based on her distribution of “at least 5 kilograms” of

methamphetamine. Prior to sentencing, Maldonado filed a written objection to this

determination, arguing that the evidence was insufficient to determine the quantity

of drugs.

At the sentencing hearing, the government presented the testimony of the lead

FBI special agent who had been surveilling Maldonado since 2018. The agent

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testified that he determined Santana would purchase half or full kilograms of

methamphetamine at a time from Maldonado. Santana, in turn, would charge his

buyers roughly $400 per ounce of methamphetamine.

The agent also provided testimony on his experience with drug dealers’ use

of code words to conceal their illegal activities. For instance, he testified that one of

Maldonado’s messages on February 15—“The man called me. If I give you one,

when do you think you would have the paper”—indicated that she was brokering a

deal between a third party and Santana for one kilogram of methamphetamine and

asking when Santana would have the money for it. Based on his experience dealing

with this code language, he was able to identify numerous conversations between

Maldonado and Santana regarding the purchase of methamphetamine in the amount

of kilograms, not ounces. He determined that Santana obtained methamphetamine

from Maldonado on several occasions and that she was his primary source of the

drugs.

Based on his experience, and over the course of his investigation, the agent

testified in great detail to eight specific transactions between Maldonado and

Santana. In addition to the four transactions discussed above—1 kilogram on

February 15, 2019; 0.5 kilogram on February 19, 2019; 1.5 kilograms on February

28, 2019; and 1.5 kilograms on March 2, 2019—the agent identified the following

four additional transactions between Maldonado and Santana:

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• 0.5 kilogram on March 5, 2019;

• 1 kilogram on March 13, 2019;

• 2 kilograms on April 9, 2019; and

• 0.5 kilogram on April 17, 2019.

Ultimately, it was the agent’s conclusion that Maldonado provided to Santana “at

least” 8.5 kilograms of methamphetamine.

The agent also testified that he conducted a so-called “safety valve” interview

with Maldonado. See 18 U.S.C. § 3553(f). His impression was that she seemed well

versed in the quantities, prices, and techniques involved in distributing

methamphetamine. During the interview, Maldonado insisted that the largest

amount of methamphetamine she helped distribute was 0.5 kilogram and that she

had been involved in “only” two transactions. The agent, however, testified that he

found this to be untruthful simply based on the number of times Santana visited her

house.

Following the live testimony, Maldonado argued several points. First, she

argued that the government provided insufficient evidence to prove the amount of

drugs attributable to her was as high as in “the amount of kilograms.” She insisted

such an estimate was based only on the government’s speculation. According to

Maldonado, even if Santana were selling “kilograms” of the drugs—not “ounces”—

he had multiple sources to obtain the drugs and thus the amount was not all from

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her. In total, she requested the district court calculate the drug quantity between 1.5

and 5 kilograms, not “at least” 5 kilograms. She also asked the court to consider her

a “minor participant” in the drug conspiracy, requesting a two-level reduction under

the Sentencing Guidelines.

The district court rejected both arguments. Specifically, as to the two-level

reduction for being a minor participant, the district court noted on the record that it

was required to assess Maldonado’s conduct against five factors, which are

delineated and discussed further below in our analysis. The district court determined

that three factors weighed against Maldonado, one in her favor, and one neither for

nor against her. Accordingly, the district court found that Maldonado did not qualify

for such a reduction.

The district court calculated Maldonado’s total offense level at a 31, leaving

the Sentencing Guidelines’ range at 108 to 135 months’ imprisonment. For a reason

not entirely clear from the record, the district court varied downward one level to 30

and sentenced Maldonado to 97 months’ imprisonment, followed by five years’

supervised release for each count. After preserving the relevant issues for appeal by

way of proper objections, Maldonado filed this appeal.

II. ANALYSIS

Maldonado raises two issues on appeal. First, she argues that the district court

clearly erred in its calculation of the quantity of drugs. Second, she argues that the

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district court clearly erred by denying her request for a two-level minor-role

reduction under the Sentencing Guidelines. We discuss each argument in turn.

A. The Drug-Quantity Calculation

First, Maldonado argues that the district court clearly erred in determining the

drug quantity that could be attributed to her. She insists the district court’s

calculation of “between 5 and 15 kilograms” is too high. Rather, under her argued-

for calculation, the most that could be attributed to her is between 1.5 and 5

kilograms.

We review a district court’s determination of the drug quantity attributable to

the defendant for clear error. United States v. Azmat, 805 F.3d 1018, 1046 (11th Cir.

2015). To find clear error, among other things, we must be left with a “definite and

firm conviction that a mistake has been committed.” United States v. Rothenberg,

610 F.3d 621, 624 (11th Cir. 2010) (quoting Rodriguez-Lopez, 363 F.3d 1134, 1137

(11th Cir. 2004)).

The government bears the burden of establishing the quantity of drugs by a

preponderance of the evidence, Azmat, 805 F.3d at 1046, and it is required to put

forward “reliable and specific evidence” when the defendant objects to the proffered

amount, United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). When

the exact quantity is unknown because the drugs were not seized by authorities, the

district court must estimate the quantity. See U.S.S.G. § 2D1.1 cmt. n.5; see also

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United States v. Barsoum, 763 F.3d 1321, 1333 (11th Cir. 2014). The court may

rely on evidence demonstrating “the average frequency and amount of a defendant’s

drug sales over a given period of time.” United States v. Frazier, 89 F.3d 1501, 1506

(11th Cir. 1996).

We find no clear error in the district court’s calculation. In fact, there is strong

record evidence that Maldonado was accountable for at least five kilograms of

methamphetamine. We find particularly convincing the extensive testimony of the

special agent. As a foundation, this testimony established a distribution relationship

between Maldonado and Santana. Furthermore, this testimony provided the court

with compelling explanation of code words and price-matching. From there, the

district court was able to establish that Santana purchased half-kilogram or kilogram

quantities from Maldonado on at least eight occasions. A most conservative estimate

from our calculation, Maldonado was responsible for at least 8.5 kilograms of

The only colorable point that Maldonado raises is the agent’s “admission” that

Santana “had other sources of supply for methamphetamine.” Although this may be

true—and perhaps probative of other parties’ cases in this larger conspiracy—it does

not sufficiently rebut the actual evidence offered by the agent of the eight

transactions totaling 8.5 kilograms directly from Maldonado. In other words,

whether Santana possessed, conspired to possess, purchased, or sold additional

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amounts from other dealers is neither relevant to Maldonado’s case nor dispositive

as to the quantity of methamphetamine that Maldonado, herself, sold him.

Maldonado’s argument on appeal is a valiant assay in trying to cast doubt in

the district court’s calculation, but it is an unsuccessful plight. Much of her

contention—indeed, virtually all of it—is not only speculative, but simply a different

interpretation of the facts. As a matter of law, this cannot establish clear error.

United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (rejecting the

notion that clear error can be established by simply noting that “there are two

permissible views of the evidence” (quoting Anderson v. City of Bessemer City, 470

U.S. 564, 574 (1985))).

B. The Minor-Role Reduction

Next, Maldonado argues that the district court clearly erred in rejecting her

request to be considered a “minor participant” under § 3B1.2 of the Sentencing

Guidelines. She contends that she was merely “a gatekeeper” for Santana and that

he was her only customer. She argues that she did not participate in the planning or

organizing of the criminal activity and, therefore, the district court’s finding that she

“set up” the drug deals was an “overreach.”

We review the district court’s determination of a defendant’s role in the

offense for clear error. United States v. Rodriguez de Varon, 175 F.3d 930, 937

(11th Cir. 1999). The Sentencing Guidelines provide for a two-level reduction if the

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defendant was a “minor participant” in the crime. U.S.S.G. § 3B1.2(b). “A ‘minor

participant’ is someone who is ‘less culpable than most other participants, but whose

role could not be described as minimal.’” United States v. Martin, 803 F.3d 581,

591 (11th Cir. 2015) (quoting U.S.S.G. § 3B1.2 cmt. n.5). The defendant has the

burden of proving her mitigating role in the offense by a preponderance of the

evidence. Rodriguez de Varon, 175 F.3d at 939. And the district court has

“considerable discretion in making this fact-intensive determination.” United States

v. Boyd, 291 F.3d 1274, 1277–78 (11th Cir. 2002).

There is a two-pronged inquiry to determine whether a role reduction applies,

considering all probative facts involving the defendant’s role and evaluating the

totality of the circumstances. United States v. Man, 891 F.3d 1253, 1274 (11th Cir.

2018). Specifically, the district court is to consider the defendant’s role: (1) in the

relevant conduct for which she has been held accountable at sentencing; and (2) as

compared to that of the other participants in her relevant conduct. United States v.

Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016). The district court is also to

consider the totality of the circumstances of several factors when determining

whether a defendant qualifies for a role reduction, including:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;

(ii) the degree to which the defendant participated in planning or organizing the criminal activity;

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(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

(iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;

(v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. § 3B.1.2 cmt. n.3(C); see United States v. Presendieu, 880 F.3d 1228,

1249–50 (11th Cir. 2018).

Here, the district court properly and sufficiently considered and applied these

factors. Again, the district court weighed the first, second, and fourth factors against

Maldonado, the third factor in her favor, and did not weigh the fifth factor either for

or against her. We find no error in any of these determinations.

The district court weighed the first factor—the degree to which she

understood the scope and structure of the criminal activity—against Maldonado.

She argues this was error, as she understood the scope and structure of the criminal

activity only to “a limited degree.” She again cursorily alleges that she was merely

a “gatekeeper” with only one customer. That is the extent of her argument. We do

not find this persuasive. Among other things, the agent testified that Maldonado was

“well versed” in the lexicon of methamphetamine, including the quantities, prices,

and techniques involved in distributing and selling it. We can hardly say it was clear

error for the district court to conclude that she was more than a “limited” participant. 12 USCA11 Case: 20-13163 Date Filed: 05/17/2021 Page: 13 of 14

The same can be said of the second factor— the degree to which she

participated in planning or organizing the criminal activity. Maldonado admits she

was a “broker,” or, in her words, “an intermediary between Santana and the unknown

person above [her].” Yet she contends it was an “overreach” to find that she “set

up” the deals. She insists that she participated in neither the planning nor the

organizing of the deals, claiming that the evidence does not show she ever took it on

herself to broker any deals at her own direction. Again, we disagree. The seized

phone records clearly demonstrate Maldonado planned and organized the

distribution of the methamphetamine to Santana.

Finally, the fourth factor was also properly weighed against Maldonado.

Contrary to her claims, the agent’s testimony showed that Maldonado set the time

and location of the deals. We agree with the government: Maldonado was “essential

to the successes of the drug-trafficking scheme.”

Weighing three of the five factors against Maldonado, we cannot say the

district court clearly erred in rejecting her request for this reduction. Further, as we

have previously stated, “[w]hen the relevant conduct attributed to a defendant is

identical to [her] actual conduct, [she] cannot prove that [she] is entitled to a minor-

role adjustment simply by pointing to some broader scheme for which [she] was not

held accountable.” See United States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th

Cir. 2006). Accordingly, because the relevant conduct for which Maldonado was

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held accountable was identical to her actual conduct, her request for a minor-role

reduction fails.

Turning to the other consideration, when considering Maldonado’s role as

compared to her co-defendants’ roles, we agree with the government that she has

failed to present evidence that her conduct was less significant than her co-

defendants. Based on the agent’s credible testimony, Maldonado was Santana’s

supplier and was much more important to the conspiracy than simply being a

“gatekeeper.”

III. CONCLUSION

Maldonado cannot show clear error in the district court’s calculation of the

amount of methamphetamine attributed to her or in the district court’s determination

not to apply a two-level role reduction. Accordingly, we affirm her sentence.

AFFIRMED