United States v. Manuel Moreno

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, KERMIT E. BYE and DUANE BENTON (PUBLISHED) [3917946] [11-3844]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-3844
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United States of America,
Appellee,
v.
Manuel Moreno,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Southern District of Iowa.
*
* [PUBLISHED]
*
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Submitted: April 20, 2012
Filed: June 4, 2012
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Before WOLLMAN, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Between 2002 and 2007, Manuel Moreno participated in a methamphetamine
conspiracy. He traveled to Des Moines, Iowa, to monitor meth deliveries and to
collect payments for the conspiracy’s leader, Elfego Ignacio Cid. Moreno pled guilty
to conspiracy to distribute meth, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and
846. The district court1 sentenced Moreno to 152 months’ imprisonment. He appeals
the finding that he managed or supervised the conspiracy. This court affirms.
1

The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.

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Date Filed: 06/04/2012 Entry ID: 3917946

The application of sentencing guidelines is reviewed de novo. United States
v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). A defendant’s role in an offense is a
question of fact, subject to clearly erroneous review. United States v. Johnson, 47
F.3d 272, 277 (8th Cir. 1995). Reversal requires a “definite and firm conviction that
a mistake has been committed.” United States v. Martinez, 446 F.3d 878, 881 (8th
Cir. 2006), quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573
(1985). If the district court chose a permissible view of the evidence, its holding is
not clearly erroneous. United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008).
A three-level increase applies if the defendant managed or supervised criminal
activity involving five or more participants, or which was otherwise extensive.
U.S.S.G. § 3B1.1(b). The government must prove the enhancement by a
preponderance of the evidence. United States v. Gaines, 639 F.3d 423, 427 (8th Cir.
2011). This court construes “manager” and “supervisor” broadly. United States v.
Erhart, 415 F.3d 965, 973 (8th Cir. 2005).
The Sentencing Guidelines list seven factors to distinguish a manager or
supervisor from a leader or organizer, including “the degree of control and authority
exercised over others.” § 3B1.1 cmt. n.4; see Gaines, 639 F.3d at 428-29 (evaluating
those factors in a § 3B1.1(b) enhancement). The district court found that Moreno
acted as Cid’s “eyes and ears” in Des Moines. While Moreno did not “specifically
direct[ ] behavior,” he ensured the operation went according to plan and that the
proceeds got back to California. Citing United States v. Plancarte-Vazquez, 450 F.3d
848, 853 (8th Cir. 2006), Moreno argues that enhancement requires some control over
at least one other participant. See also United States v. Payton, 636 F.3d 1027, 1048
(8th Cir. 2011). To the contrary, a defendant’s control over another participant is
sufficient but not necessary for a § 3B1.1(b) enhancement. Gaines, 639 F.3d at 428
n.4.

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The district court did not clearly err in enhancing Moreno’s sentence. One
permissible view of the evidence is that he supervised the conspiracy’s Des Moines
deliveries and payments. The exercise of “management responsibility over the
property, assets, or activities of a criminal organization” may warrant enhancement.
§ 3B1.1 cmt. n.2.
The judgment of the district court is affirmed.
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Date Filed: 06/04/2012 Entry ID: 3917946