United States v. Julio Ortiz-Rodriguez

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and STEVEN M. COLLOTON (UNPUBLISHED) [3889071] [11-1690]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1690
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United States of America,
Appellee,
v.
Julio Ortiz-Rodriguez,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Western District of Arkansas.
*
* [UNPUBLISHED]
*
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Submitted: December 12, 2011
Filed: March 13, 2012
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Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Following Julio Ortiz-Rodriguez’s plea of guilty to conspiring to distribute
methamphetamine, the district court1 imposed a two-level enhancement under United
States Sentencing Guidelines (Guidelines) section 3B1.1(c) for a management role
in the offense and sentenced Oritz-Rodgriguez to 145 months’ imprisonment. OrtizRodriguez appeals, arguing that the evidence did not support the imposition of the
enhancement. We affirm.

1

The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.

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I.
Melissa Castillo was arrested for distributing methamphetamine in the Fort
Smith, Arkansas, area. Castillo was interviewed and revealed that Ortiz-Rodriguez
and his girlfriend, Chelsea Spangle, supplied her with the drugs. Working with law
enforcement, Castillo agreed to set up a controlled buy from Ortiz-Rodriguez and
called Spangle to request two ounces of methamphetamine. Spangle replied that they
would bring the drugs to Castillo’s residence.
Officers set up surveillance outside Castillo’s home on the day of the delivery
and observed a white Honda, which had previously been seen in surveillance of other
drug transactions involving Castillo, arrive at Castillo’s residence. A Hispanic male
exited the car and walked toward Castillo’s door. At that time, Spangle called
Castillo and stated that the drugs were outside. Officers approached the Hispanic
male, identified as Juan Perez-Padron, and recovered from him approximately 53
grams of methamphetamine, contained in three separate bags. The driver of the
Honda was identified as Ortiz-Rodriguez’s brother.
A short time later, Ortiz-Rodriguez, Spangle, and their infant child were seen
driving a vehicle in the area of Castillo’s residence. They were stopped and OrtizRodriguez and Spangle were arrested. Ortiz-Rodriguez admitted that he had
approached Castillo about selling methamphetamine and that she agreed to do so.
Ortiz-Rodriguez further stated that he had delivered approximately five ounces of
methamphetamine to Castillo since February 2010. Further investigation revealed
that Ortiz-Rodriguez enlisted his brother and Perez-Padron to deliver the drugs to
Castillo’s apartment. Ortiz-Rodriguez also loaned his brother a cell phone in order
to facilitate the transaction with Castillo. Ortiz-Rodriguez confirmed that Castillo
would call Spangle to request methamphetamine; he would then arrange the
transportation of the drugs to Castillo.

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A grand jury charged Ortiz-Rodriguez with conspiring to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and
unlawfully reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2).2 As set forth above, Ortiz-Rodriguez pled guilty to the conspiracy charge.
The Presentence Investigation Report (PSR) recommended a four-level enhancement
for Ortiz-Rodriguez’s role as leader in a conspiracy involving five or more
participants under Guidelines section 3B1.1(a). Ortiz-Rodriguez objected to the
enhancement, arguing that he was only a drug user and supplier, not a leader or
organizer.
At the sentencing hearing, the district court disagreed with the PSR’s
recommendation concerning the application of the four-level enhancement under
Guidelines section 3B1.1(a), instead applied only a two-level enhancement under
subsection (c), and sentenced Ortiz-Rodriguez to 145 months’ imprisonment. The
question before us on appeal is whether the evidence supports the finding that OrtizRodriguez was an organizer, leader, manager, or supervisor in the conspiracy.
II.
“‘The district court’s factual findings, including its determination of a
defendant’s role in the offense, are reviewed for clear error,’ while its ‘application of
the guidelines to the facts is reviewed de novo.’” United States v. Bolden, 622 F.3d
988, 990 (8th Cir. 2010) (quoting United States v. Vasquez-Rubio, 296 F.3d 726, 729
(8th Cir. 2002)). It is the government’s burden to prove a defendant’s role in the
offense by a preponderance of the evidence. United States v. Davis, 583 F.3d 1081,
1097 (8th Cir. 2009).

2

The unlawful reentry charge against Ortiz-Rodriguez was dismissed pursuant
to his plea agreement.
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Under the Guidelines, a defendant’s offense level may be increased by two
levels if he “was an organizer, leader, manager, or supervisor in any criminal
activity . . . .” U.S.S.G. § 3B1.1(c). “Each of these four terms is construed broadly.”
United States v. Frausto, 636 F.3d 992, 996 (8th Cir. 2011) (quoting United States v.
De Oliveira, 623 F.3d 593, 599 (8th Cir. 2010)). In determining whether a defendant
played a leadership role in the offense, courts are encouraged to consider:
the exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, 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. Furthermore:
In relatively small criminal enterprises . . . the distinction between
organization and leadership, and that of management or supervision, is
of less significance than in larger enterprises that tend to have clearly
delineated divisions of responsibility. This is reflected in the
inclusiveness of § 3B1.1(c).
Id. at cmt. background.
We conclude that the district court’s determination of Ortiz-Rodriguez’s
management role in the conspiracy was not clearly erroneous. To be subject to a role
enhancement, a defendant need only recruit a participant into a conspiracy or manage
or supervise a participant. See Bolden, 622 F.3d at 990 (citing United States v.
Erhart, 415 F.3d 965, 973 (8th Cir. 2005) (“[T]he simple fact that a defendant recruits
new members into a conspiracy supports a finding of the defendant being a manager
or supervisor.”); Davis, 583 F.3d at 1097 (citing United States v. Mata-Peres, 478
F.3d 875, 877 (8th Cir. 2007) (“To be subject to a role enhancement under § 3B1.1(c),
a defendant need only manage or supervise one other participant.”). Furthermore, “a
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defendant can be held accountable as an organizer or leader within the meaning of the
Sentencing Guidelines even if he did not directly control others in the conspiracy.”
United States v. Johnson, 47 F.3d 272, 277 (8th Cir. 1995). In his plea agreement,
Ortiz-Rodriguez admitted that he arranged for his brother to transport
methamphetamine to Castillo. He further admitted that he had approached Castillo
about selling methamphetamine and that she agreed to do so. Ortiz-Rodriguez thus
recruited others into the conspiracy, even if he did not directly control them. In sum,
we conclude that the district court did not err in applying the enhancement.
III.
The sentence is affirmed.
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