United States v. Marcelino Varga

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and Michael J. Melloy (UNPUBLISHED) [3984712] [12-1972]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1972
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marcelino Ahumada Vargas
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas – Little Rock
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Submitted: November 12, 2012
Filed: December 14, 2012
[Unpublished]
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Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.
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PER CURIAM.
Marcelino Vargas pleaded guilty to possessing with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); conspiring to
possess with intent to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A); and illegal reentry into the United States subsequent to
deportation for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2).

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The district court1 applied a three-level enhancement to Vargas's offense level for
being a manager or supervisor in the conspiracy pursuant to § 3B1.1(b) of the U.S.
Sentencing Guidelines and sentenced Vargas to 188 months imprisonment and five
years of supervised release. Vargas appealed, arguing that there was not sufficient
evidence to support the enhancement. We affirm.
I.
A.
Pursuant to § 3B1.1(b) of the Sentencing Guidelines, "[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," the sentencing court
may increase the defendant's sentence by three levels. We construe broadly the terms
"manager" and "supervisor" under § 3B1.1(b). United States v. Gaines, 639 F.3d 423,
428 (8th Cir. 2011) (citation omitted). The factors that a sentencing court may
consider when making a § 3B1.1(b) determination include, inter alia, the exercise of
the defendant's decisionmaking authority, the nature of the defendant's participation
in the commission of the offense, and the degree of control and authority exercised
by the defendant over others. See United States v. Adamson, 608 F.3d 1049, 1056
(8th Cir. 2010) (citing U.S.S.G. § 3B1.1 cmt. n.4). "[A]lthough proof of [a
defendant's] control over at least one participant is sufficient to sustain a
manager/supervisor enhancement on appeal, such proof is not necessary, either on
appeal or at sentencing." Gaines, 639 F.3d at 428 n.4 (noting that there is no "strict
condition requiring evidence of control or decision making authority over one or
more accomplices as an absolute prerequisite for a manager/supervisor enhancement
under U.S.S.G. § 3B1.1.").

1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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We review a district court's factual findings, including its determination of a
defendant's role in the offense, for clear error. Gaines, 639 F.3d at 427–28. "The
government bears the burden of proving by a preponderance of the evidence that the
aggravating role enhancement is warranted." Id. at 427 (citing United States v.
Garcia-Hernandez, 530 F.3d 657, 665 (8th Cir. 2008)).
B.
A presentence investigation report recommended that Vargas's offense level
be increased by four levels because he was the organizer or leader of the conspiracy
to which he pleaded guilty. Vargas objected on the ground that he did not direct the
activities and involvement of any coconspirators. At Vargas's sentencing hearing, the
district court heard testimony that Vargas supplied others with methamphetamine for
resale and that Vargas paid certain coconspirators to hold and subsequently dispense
methamphetamine at his request. Additional testimony revealed that when one of
Vargas's coconspirators was arrested, the coconspirator's wife told individuals who
owed money to the coconspirator to give the money to Vargas. Based on this
testimony, the district court declined to find that Vargas was the organizer or leader
of the "loosely knit organization." The district court did, however, find by a
preponderance of the evidence that Vargas was a manager or supervisor.
We conclude that the district court's factual determination regarding Vargas's
role in the offense was not clearly erroneous. Vargas brought methamphetamine to
coconspirators and paid them to hold it for him. This is sufficient to warrant an
enhancement under the Sentencing Guidelines. See U.S.S.G. § 3B1.1 cmt. n.2 ("An
upward departure may be warranted . . . in the case of a defendant who did not
organize, lead, manage, or supervise another participant, but who nevertheless
exercised management responsibility over the property, assets, or activities of a
criminal organization."); see also Adamson, 608 F.3d at 1056 (affirming defendant's
three-level enhancement for his role in the offense).
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II.
For the reasons set forth above, we find no clear error in the district court's
three-level enhancement to Vargas's offense level for his role in the
methamphetamine conspiracy. The judgment of the district court is affirmed.
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