United States v. Richard Gonzalez Alcalde

818 F.3d 791, 2016 U.S. App. LEXIS 6619, 2016 WL 1425819
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 12, 2016
Docket15-1329
StatusPublished
Cited by5 cases

This text of 818 F.3d 791 (United States v. Richard Gonzalez Alcalde) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Richard Gonzalez Alcalde, 818 F.3d 791, 2016 U.S. App. LEXIS 6619, 2016 WL 1425819 (8th Cir. 2016).

Opinion

MURPHY, Circuit Judge.

Richard Gonzalez Alcalde pled guilty to conspiracy to distribute methamphetamine and the district court 1 sentenced him to 188 months imprisonment. Alcalde appeals his sentence, arguing that the court erroneously applied an aggravating role adjustment under U.S.S.G. § 3B1.1 and miscalculated the drug quantity attributable to him. We affirm;

I.

Between February and April 2014, Al-calde participated in a conspiracy to distribute methamphetamine with four other individuals. He was indicted and pled guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841(a), (b)(1)(A) and 21 U.S.C. § 846. In the plea agreement, the parties stipulated that Alcalde’s offense involved at least 1.5 kilograms of actual 'methamphetamine.

The presentence investigation report recommended that Alcalde receive a three level enhancement because of the. managerial role he played in the conspiracy. iSee U.S.S.G. § 3Bl.l(b). The probation office also determined that at least 4.5 kilograms of methamphetamine were attributable to Alcalde. This calculation was based on the quantity of drugs the government seized and could trace to Alcalde as well as the drug quantity equivalent of the cash found in coconspirator houses. The coconspira-tors had- admitted in government interviews that they had collected drug proceeds as part of the underlying conspiracy to distribute methamphetamine. The police had seized $2,380 from one coconspirator’s house and $3,592 from another’s. In the report,' the monetary seizures were converted to 37.49 grams and 56.57 grams, respectively, based on information from Drug Enforcement Administration special agent Lonny Namanny that one ounce or about 28 grams of methamphetamine generally sold for between $1,500 and $1,800.

During the sentencing hearing Alcalde argued that a role enhancement should not be applied and that the drug quantity' attributed to him in the presentence investigation-report was erroneous. One of Al-calde’s coconspirators, Gema Consuelo Gonzalez Alcalde, testified that Alcalde had directed her to obtain Des Moines mailing addresses to receive shipments of actual methamphetamine. He had also provided her with bank account information so that she and another coconspirator could deposit the drug proceeds. She stated’that- at least three packages were , sent to Iowa -from California, and she- recalled one instance when Alcalde had instructed her to make a $3,000 deposit into a bank account. ■ Gema also testified that Alcalde would direct her to take photographs of drug packages she received and send the photographs to him via text message.

Namanny testified during the sentencing hearing about statements Alcalde .made *794 during his.proffer interviews. According to Namanny, Alcalde had admitted to being involved with shipping at least four packages of drugs from California to Des Moines; Alcalde provided this information to Namanny subject to a cooperation agreement under which the government had agreed not to use any self incriminating statements against him, unless he “admitted] conduct in a proffer interview or debriefing and then denie[d] the same or presented] evidence to the contrary at any healing subsequent to the signing- of th[e] agreement.”

The district court found that “considering the entire record” the facts supported applying the sentencing role enhancement under U.S.S.G. § 3Bl.l(b) to Alcalde. It also determined that there was sufficient evidence to support the finding that 4.5 kilograms of methamphetamine were attributable to him. The court then calculated the guideline range at 235 to 240 months and sentenced Alcalde to 188 months imprisonment. Alcalde appeals his sentence, arguing that the court misapplied the aggravating role adjustment and miscalculated the drug quantity attributable to him.

II.

We review the district court’s factual findings and its determination of a defendant’s role in the offense for clear error. United States v. Callaway, 762 F.3d 754, 759 (8th Cir.2014); United States v. Gutierrez, 757 F.3d 785, 789 (8th Cir.2014). Under U.S.S.G. § 3Bl.l(b), a defendant’s offense level may be increased by three levels if he was a “manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” Under the guidelines, we construe the terms “manager” and “supervisor” broadly. United States v. Cole, 657 F.3d 685, 687 (8th Cir.2011).

To determine whether this enhancement applies, the sentencing court considers factors such as the “exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, ... the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1 cmt. n. 4. A role enhancement under § 3B1.1(b) may apply even if the defendant managed only one participant in a single transaction. United States v. Adejumo, 772 F.3d 513, 537-38 (8th Cir.2014). Here, the record demonstrates that the conspiracy involved five participants and Alcalde directed the actions of two cocon-spirators by instructing them to deposit drug proceeds and by instructing one of them to send photos of drug packages. The district court therefore did not err by applying a role enhancement under § 3B1.1(b).

Alcalde also argues that the district court clearly erred by attributing to him 4.5 kilograms of actual methamphetamine. He does not dispute that 4.472 kilograms of actual methamphetamine were properly attributed to him, but he argues that the court erred by attributing the additional 28 grams of methamphetamine. Drug quantity determinations are factual findings which we review for clear error. United States v. Cotton, 742 F.3d 345, 348 (8th Cir.2014). A district court’s determination will stand “unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, ór in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” Id. (internal quotation marks omitted).

*795 Here, although the, court did not specify how it completed its calculation, the record supports at least two different methods of calculating the 4.5 kilograms drug quantify attributed to Alcalde. First, the court could have converted the drug proceeds that had been found in the cocon-spirator houses into drug quantities. Under the sentencing guidelines, “[w]here there is no drug seizure or the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of substance.” U.S.S.G. § 2D1.1 cmt. n. 5.

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Bluebook (online)
818 F.3d 791, 2016 U.S. App. LEXIS 6619, 2016 WL 1425819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-gonzalez-alcalde-ca8-2016.