United States v. Marcelino Varga


PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and Michael J. Melloy (UNPUBLISHED) [3984712] [12-1972]

Download PDF
United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-1972 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Marcelino Ahumada Vargas lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Eastern District of Arkansas – Little Rock ____________ Submitted: November 12, 2012 Filed: December 14, 2012 [Unpublished] ____________ Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges. ____________ 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). Appellate Case: 12-1972 Page: 1 Date Filed: 12/14/2012 Entry ID: 3984712 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. -2- Appellate Case: 12-1972 Page: 2 Date Filed: 12/14/2012 Entry ID: 3984712 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). -3- Appellate Case: 12-1972 Page: 3 Date Filed: 12/14/2012 Entry ID: 3984712 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. ______________________________ -4- Appellate Case: 12-1972 Page: 4 Date Filed: 12/14/2012 Entry ID: 3984712

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?