F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 13 1998 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-6022 (W.D. Okla.) ALFREDO VEGA, (D. Ct. No. CR-96-115-L)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, BRORBY, and EBEL, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Background
The defendant, Alfredo Vega, was arrested for participating in a drug
operation that included his two brothers, Hector Vega and Pedro Vega, and a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. number of others. The Vega brothers, who sometimes acted alone and other times
acted jointly, were links in a loose-knit organization of marijuana dealers. They
often sold marijuana to a man named Richard Jarvis in Oklahoma City. They also
would arrange to transport the drugs to Mr. Jarvis.
After his arrest, the defendant pleaded guilty to two counts of a forty-three
count indictment. The presentence report recommended that, under section
3B1.1(a) of the Sentencing Guidelines, the district court impose a four-level
enhancement to Mr. Vega’s sentence. Under that subsection, a court must impose
a four-level enhancement if the defendant was “an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a) (1997). At the sentencing hearing and in a
written opinion that followed, the district court found that the evidence did not
warrant the four-level enhancement under section 3B1.1(a). Instead, the court
enhanced the defendant’s offense level by two levels for his being a manager of
criminal activity under section 3B1.1(c). The defendant appeals on two different
grounds: (1) that the district court’s factual findings are clearly erroneous, and (2)
that the facts, as found by the district court, do not support an enhancement under
section 3B1.1(c). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
-2- Discussion
The defendant first argues that the factual findings of the district court are
in error. We will overturn a district court’s findings of fact only if they are
clearly erroneous. See United States v. Farnsworth, 92 F.3d 1001, 1009 (10th
Cir.), cert. denied, 117 S. Ct. 596 (1996). We will uphold them unless they are
unsupported by the record or, after reviewing the record, “we are left with the
definite and firm conviction that a mistake has been made.” United States v.
Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990) (citations and internal quotation
marks omitted).
The district court imposed its two-level enhancement under section
3B1.1(c). That provision instructs: “If the defendant was an organizer, leader,
manager, or supervisor in any criminal activity other than described in (a) or (b),
increase by two levels.” The district court based the enhancement on the
following facts:
The evidence establishes that defendant exercised management responsibility over the money involved in the transactions. The funds for transportation expenses were wire-transferred to defendant, who then distributed the funds to the individuals who transported the contraband. This is a sufficient exercise of managerial activity to impose the two-level enhancement.
United States v. Vega, No. 96-115-L, slip. op. at 3 (W.D. Okla. Dec. 11,
1996). There is substantial support for these findings in the testimony of
Robert Ryan, a police officer from Norman, Oklahoma, who was the only
-3- person to testify at the sentencing hearing. Officer Ryan learned about the
defendant’s criminal activity during an assignment to the Drug Enforcement
Administration as a task force officer. Officer Ryan testified that Mr. Jarvis
purchased marijuana from the defendant through money wires. In his wires,
Jarvis would include money to cover the expense of transporting the marijuana
to Oklahoma City. Upon receiving Jarvis’s money, the defendant would pay a
man named Ken Moore to deliver the marijuana to Jarvis. According to the
testimony, Mr. Moore was under the impression that he was working for the
defendant.
The defendant makes much of the fact that there was no evidence that
Alfredo Vega held a position of authority over his two brothers or that he was
the “boss” of the organization. As the excerpt from the district court opinion
makes clear, however, the district court did not rely on any findings about the
relationship among the brothers, or about Alfredo’s position in the larger
criminal organization, in imposing the enhancement. In fact, the court
explicitly refrained from making those factual findings earlier in the opinion.
The district court relied only on the fact that the defendant paid Mr. Moore to
deliver marijuana to Oklahoma City. In light of Officer Ryan’s testimony, the
district court’s findings are not clearly erroneous.
Next, the defendant argues that the facts found by the district court
-4- cannot support a conclusion that he was a “manager” under section 3B1.1(c).
Thus, the defendant’s second challenge presents a question of how the
statutory standard applies to the facts of the case—a mixed question of law
and fact. See Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986). Congress
has dictated the standard of review for such questions in the sentencing
context. The relevant statute states that appellate courts “shall give due
deference to the district court’s application of the guidelines to the facts.” 18
U.S.C. § 3742(e). This “due deference” standard parallels our standard of
review for mixed questions of law and fact in other contexts. See United
States v. Roberts, 898 F.2d 1465, 1468 & n.2 (10th Cir. 1990). We have
described that standard as follows:
Where the mixed question involves primarily a factual inquiry, the clearly erroneous standard is appropriate. If, however, the mixed question primarily involves the consideration of legal principles, then a de novo review by the appellate court is appropriate.
Id. at 1468 (quoting Ricketts, 792 F.2d at 961).
The defendant’s first point of argument is primarily a legal one, and thus
we review the question de novo. The defendant contends that the district court
erred because possession of money alone is not enough to support an
enhancement for management of criminal activity.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 13 1998 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-6022 (W.D. Okla.) ALFREDO VEGA, (D. Ct. No. CR-96-115-L)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, BRORBY, and EBEL, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Background
The defendant, Alfredo Vega, was arrested for participating in a drug
operation that included his two brothers, Hector Vega and Pedro Vega, and a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. number of others. The Vega brothers, who sometimes acted alone and other times
acted jointly, were links in a loose-knit organization of marijuana dealers. They
often sold marijuana to a man named Richard Jarvis in Oklahoma City. They also
would arrange to transport the drugs to Mr. Jarvis.
After his arrest, the defendant pleaded guilty to two counts of a forty-three
count indictment. The presentence report recommended that, under section
3B1.1(a) of the Sentencing Guidelines, the district court impose a four-level
enhancement to Mr. Vega’s sentence. Under that subsection, a court must impose
a four-level enhancement if the defendant was “an organizer or leader of a
criminal activity that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a) (1997). At the sentencing hearing and in a
written opinion that followed, the district court found that the evidence did not
warrant the four-level enhancement under section 3B1.1(a). Instead, the court
enhanced the defendant’s offense level by two levels for his being a manager of
criminal activity under section 3B1.1(c). The defendant appeals on two different
grounds: (1) that the district court’s factual findings are clearly erroneous, and (2)
that the facts, as found by the district court, do not support an enhancement under
section 3B1.1(c). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
-2- Discussion
The defendant first argues that the factual findings of the district court are
in error. We will overturn a district court’s findings of fact only if they are
clearly erroneous. See United States v. Farnsworth, 92 F.3d 1001, 1009 (10th
Cir.), cert. denied, 117 S. Ct. 596 (1996). We will uphold them unless they are
unsupported by the record or, after reviewing the record, “we are left with the
definite and firm conviction that a mistake has been made.” United States v.
Easterling, 921 F.2d 1073, 1077 (10th Cir. 1990) (citations and internal quotation
marks omitted).
The district court imposed its two-level enhancement under section
3B1.1(c). That provision instructs: “If the defendant was an organizer, leader,
manager, or supervisor in any criminal activity other than described in (a) or (b),
increase by two levels.” The district court based the enhancement on the
following facts:
The evidence establishes that defendant exercised management responsibility over the money involved in the transactions. The funds for transportation expenses were wire-transferred to defendant, who then distributed the funds to the individuals who transported the contraband. This is a sufficient exercise of managerial activity to impose the two-level enhancement.
United States v. Vega, No. 96-115-L, slip. op. at 3 (W.D. Okla. Dec. 11,
1996). There is substantial support for these findings in the testimony of
Robert Ryan, a police officer from Norman, Oklahoma, who was the only
-3- person to testify at the sentencing hearing. Officer Ryan learned about the
defendant’s criminal activity during an assignment to the Drug Enforcement
Administration as a task force officer. Officer Ryan testified that Mr. Jarvis
purchased marijuana from the defendant through money wires. In his wires,
Jarvis would include money to cover the expense of transporting the marijuana
to Oklahoma City. Upon receiving Jarvis’s money, the defendant would pay a
man named Ken Moore to deliver the marijuana to Jarvis. According to the
testimony, Mr. Moore was under the impression that he was working for the
defendant.
The defendant makes much of the fact that there was no evidence that
Alfredo Vega held a position of authority over his two brothers or that he was
the “boss” of the organization. As the excerpt from the district court opinion
makes clear, however, the district court did not rely on any findings about the
relationship among the brothers, or about Alfredo’s position in the larger
criminal organization, in imposing the enhancement. In fact, the court
explicitly refrained from making those factual findings earlier in the opinion.
The district court relied only on the fact that the defendant paid Mr. Moore to
deliver marijuana to Oklahoma City. In light of Officer Ryan’s testimony, the
district court’s findings are not clearly erroneous.
Next, the defendant argues that the facts found by the district court
-4- cannot support a conclusion that he was a “manager” under section 3B1.1(c).
Thus, the defendant’s second challenge presents a question of how the
statutory standard applies to the facts of the case—a mixed question of law
and fact. See Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir. 1986). Congress
has dictated the standard of review for such questions in the sentencing
context. The relevant statute states that appellate courts “shall give due
deference to the district court’s application of the guidelines to the facts.” 18
U.S.C. § 3742(e). This “due deference” standard parallels our standard of
review for mixed questions of law and fact in other contexts. See United
States v. Roberts, 898 F.2d 1465, 1468 & n.2 (10th Cir. 1990). We have
described that standard as follows:
Where the mixed question involves primarily a factual inquiry, the clearly erroneous standard is appropriate. If, however, the mixed question primarily involves the consideration of legal principles, then a de novo review by the appellate court is appropriate.
Id. at 1468 (quoting Ricketts, 792 F.2d at 961).
The defendant’s first point of argument is primarily a legal one, and thus
we review the question de novo. The defendant contends that the district court
erred because possession of money alone is not enough to support an
enhancement for management of criminal activity. Rather, one must exercise
control over another person in order to “manage” criminal activity under
-5- section 3B1.1(c). The defendant is correct on this point. See United States v.
Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995) (finding that management of
assets is not enough to support an enhancement under section 3B1.1(c));
United States v. Katora, 981 F.2d 1398, 1404 (3d Cir. 1992) (same); United
States v. Giraldo, 111 F.3d 21, 24 (5th Cir.) (same), cert. denied, 118 S. Ct.
322 (1997).
The defendant assumes that because management of money alone is
insufficient, and because the district court relied on the defendant’s
management of the money in imposing the enhancement, the district court
erred. We disagree. While it is true that the mere possession of money is
insufficient to support an enhancement for being a manager under section
3B1.1(c), it is equally true that one’s control over the cash flow of a criminal
enterprise is usually indicative of at least some authority over others in the
organization.
The district court did not base the enhancement solely on the fact that
Jarvis wired money to the defendant. Only an overly restrictive reading of the
court’s opinion would lead to that conclusion. In determining that the
defendant had a managerial role, the court emphasized that Jarvis wired the
money to the defendant, “who then distributed the funds to the individuals who
transported the contraband.” Vega, slip. op. at 3 (emphasis added).
-6- Applying the most reasonable interpretation of the court’s language, the court
imposed the enhancement not simply because the defendant held the money,
but rather because his possession of the money gave him control over
distributors such as Ken Moore. Thus, although the defendant correctly
identified a limit on the reach of section 3B1.1(c), the district court did not
exceed it.
That does not entirely dispose of the defendant’s appeal, however. We
must still consider whether the degree of control that Mr. Vega exercised over
Mr. Moore qualifies as “management” under section 3B1.1(c). Unlike the
legal question just discussed, this determination primarily involves a factual
inquiry because it hinges largely on how much control the defendant had over
Mr. Moore’s activities. Therefore, on this particular question, we defer to the
district court’s decision unless it was clearly erroneous. See Ricketts, 792
F.2d at 961.
Our cases have interpreted section 3B1.1(c) liberally. A court may
enhance a sentence under section 3B1.1(c) “upon a showing that the defendant
exercised any degree of direction or control over someone subordinate to him
in the distribution scheme.” United States v. Backas, 901 F.2d 1528, 1530
(10th Cir. 1990). According to the testimony at the sentencing hearing, Mr.
Vega regularly paid Mr. Moore to drive marijuana to Oklahoma City. Mr.
-7- Moore made his trips at the direction of Mr. Vega, and Mr. Moore understood
himself to be in the employ of Mr. Vega. See Sent. Hr’g at 29 (“[T]here were
times when Alfredo Vega may have supervised or gave direction to one person
during one drug transaction . . . .”) (statement of defendant’s counsel). This
testimony provides adequate support for the district court’s conclusion. The
court’s finding is not clearly erroneous.
Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district
court.
ENTERED FOR THE COURT,
Deanell Reece Tacha Circuit Judge
-8-