US v. Alejandro Villareal

Filing 920091106

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5202

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO VILLAREAL, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:07-cr-00195-RJC-4)

Submitted:

October 26, 2009

Decided:

November 6, 2009

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

F. Lane Williamson, GARLITZ & WILLIAMSON, P.L.L.C., Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Mark A. Jones, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Alejandro Villareal was convicted by a jury of

conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 846 (2006) (Count One), and conspiracy to commit money laundering, 18 U.S.C.

§ 1956(h) (2006) (Count Two), and was sentenced to a term of 360 months imprisonment. He appeals his sentence, arguing that the

district court clearly erred in finding that he was a manager or supervisor in the conspiracy, U.S. Sentencing Guidelines Manual § 3B1.1(b) (2008), and erred in calculating his offense level under USSG § 3D1.3(a). The evidence We affirm. produced at trial established that

Villareal was involved in a conspiracy that transported large amounts of cocaine from Mexico into the Rio Grande Valley area in Texas and then in tractor-trailer trucks to North Carolina, Florida, Georgia, New York and Texas for distribution. amount of currency -- drug proceeds -- were also Large

transported

regularly.

Eduardo Saenz oversaw operations in Charlotte, North As

Carolina, and Villareal, his long-time friend, assisted him.

part of apparent counter-surveillance efforts, the conspirators made a practice of switching vehicles frequently while

transporting drugs or money.

Because they were in fact under

surveillance for much of the year before Villareal's arrest, many such vehicle-swaps were 2 witnessed by law enforcement

agents.

At Villareal's trial, Yomil Prado and Jesus Balderas

testified that they made trips to destinations in North Carolina and South Carolina during under the direction were of both Saenz They and were

Villareal

which

vehicles

switched.

usually paid $2000 per trip, and received the money sometimes from Saenz and sometimes from Villareal. On some trips, both

Saenz and Villareal were present, but frequently only Villareal made the trip with them. Under USSG § 3B1.1(b), a three-level enhancement

applies "[i]f the defendant 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

Application Note 2 to § 3B1.1, to qualify for the adjustment, a defendant must have managed or supervised "one or more other participants." defendant activities. An upward an departure may be warranted if the or

managed Id.

organization's The district

property,

assets

court's

factual

finding

concerning the defendant's role in the offense is reviewed for clear error. Cir. 2002). position United States v. Sayles, 296 F.3d 219, 224 (4th The court found that Villareal had a managerial he coordinated drivers, paid the drivers,

because

handled large amounts of money, and acted independently of Saenz at times. We conclude that the district court did not clearly

err in so finding. 3

Villareal's

two

counts

of

conviction

were

grouped Under

together for sentencing purposes under USSG § 3D1.2(c).

USSG § 3D1.3(a), when counts are grouped together pursuant to § 3D1.2(a)-(c), the offense level for the group is the offense level "for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group." Accordingly, the district court determined that the adjusted

offense level for the group was 43, the offense level for Count Two, the money laundering offense. The district court then

varied downward to offense level 42. Villareal contends on appeal that the district court misapplied § 3D1.3, which provides that, when counts are grouped together under § 3D1.2(c), the offense level for the group is the offense level for "the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group." Villareal claims that "the most serious of the counts"

should be taken to mean the count with the highest statutory maximum. However, the guideline explicitly defines the term

"the most serious of the counts comprising the group" as the count United with the highest offense 139 level. F.3d 718 Villareal (9th Cir. relies 1998), on as

States

v.

Brinton,

support for his interpretation, based on the appeals court's statement that "since the [manufacturing 4 counts] have the

potential offense

to level

produce should

the be

highest

offense

level, the

the

group

determined

under

guideline

applicable to those offenses."

Id. at 722.

However, Brinton

did not address the interpretation of § 3D1.3(a) that Villareal seeks to advance here. 1024, 1032-33 the (6th See United States v. Eversole, 487 F.3d 2007) (the Brinton . . "court . nor did did not it is

Cir.

calculate explicitly

respective that

offense the

levels

hold

`seriousness'

determination

controlled by the statutory maximum sentence").

Eversole went

on to reject the interpretation of § 3D1.3(a) urged here by Villareal and the view that Brinton "tacitly" supported that view. Two other circuits have also rejected Villareal's

interpretation of § 3D1.3(a).

United States v. Kroeger, 229

F.3d 700, 703-04 (8th Cir. 2000) ("[T]he most serious count is not the count with the greatest available maximum statutory term of imprisonment; it is the count with the highest offense

level"); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir. 2003) (same). We find no error in the district court's

calculation of Villareal's offense level. error are without merit, Villareal

Because his claims of is not entitled to

resentencing. We district facts therefore We affirm the with are 5 sentence oral imposed by the the the

court. legal

dispense

argument

because in

and

contentions

adequately

presented

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

6