US v. Alejandro Villareal

Filing 920091106

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5202 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALEJANDRO VILLAREAL, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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