United States v. Oscar Alcides-Mendez , 587 F. App'x 72 ( 2014 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4329
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    OSCAR ALCIDES-MENDEZ,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
    District Judge. (6:13-cr-00631-HMH-4)
    Submitted:   November 25, 2014            Decided:   December 11, 2014
    Before MOTZ, KING, and KEENAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
    Carolina, for Appellant.     William N. Nettles, United States
    Attorney, Andrew Burke Moorman, Sr., Assistant United States
    Attorney, Greenville, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Oscar      Alcides-Mendez           pled      guilty     to    one   count   of
    conspiracy to possess with intent to distribute and distribution
    of five kilograms or more of cocaine and 100 kilograms or more
    of marijuana, in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A),
    and 846 (2012).         The district court sentenced Alcides-Mendez to
    130    months’    imprisonment.           Alcides-Mendez           timely     appeals    his
    sentence, arguing that the district court (1) erred in applying
    a     three-level      enhancement        under      U.S.       Sentencing       Guidelines
    Manual (“USSG”) § 3B1.1(b); (2) should have granted him safety
    valve relief under USSG § 5C1.2; and (3) failed to adequately
    inquire into a presentence conflict between Alcides-Mendez and
    his counsel.       Finding no error, we affirm.
    Alcides-Mendez’s           argument         regarding     the     three-level
    enhancement is two-fold: first, he contends that the district
    court     failed       to    make      factual            findings        supporting     the
    enhancement, and second, he asserts that the evidence does not
    support application of the enhancement.                          To permit meaningful
    appellate review, a district court should make factual findings
    when    ruling    on   a    disputed      Sentencing         Guidelines      enhancement.
    See Fed. R. Crim. P. 32(i)(3)(B) (providing that, at sentencing,
    the    district     court    “must    –       for   any    disputed       portion   of   the
    presentence report or other controverted matter – rule on the
    dispute    or    determine     that       a    ruling      is   unnecessary”);      United
    2
    States      v.    Llamas,    
    599 F.3d 381
    ,    388      (4th    Cir.    2010)    (“[A]
    sentencing court must provide a sufficient explanation of its
    rationale in making factual findings to support its calculation
    of    a    defendant’s      Guidelines     range.”).          A     district     court    may
    satisfy this requirement, however, by adopting factual findings
    in the record, so long as it is clear what disputed issues are
    resolved.         United States v. Bolden, 
    325 F.3d 471
    , 497 (4th Cir.
    2003).       Here, following the Government’s arguments in favor of
    the       enhancement,      the    district       court      adopted       the   facts     as
    summarized by the Government.                 Accordingly, the district court
    properly established its factual basis for applying the disputed
    enhancement.
    As to the second aspect of the enhancement challenge,
    Alcides-Mendez argues that the Government offered insufficient
    evidence to sustain the enhancement.                        Under USSG § 3B1.1(b), a
    three-level enhancement is warranted if “the defendant was a
    manager or supervisor (but not an organizer or leader) and the
    criminal         activity    involved      five    or     more      participants.”          A
    district         court’s    “ruling   regarding         a    role     adjustment      is    a
    factual       determination        reviewed       for       clear    error.”         United
    States v.         Kellam,    
    568 F.3d 125
    ,       147-48      (4th    Cir.     2009).
    Alcides-Mendez        concedes      that    the    conspiracy        involved      five    or
    more participants, challenging only whether he was a manager or
    supervisor.          The three-level enhancement is applicable if the
    3
    defendant managed or supervised at least one other participant
    in the conspiracy.         United States v. Rashwan, 
    328 F.3d 160
    , 166
    (4th Cir. 2003).
    Evidence      considered       by      the     district         court    revealed
    that     Alcides-Mendez        recruited       a    coconspirator             to    transport
    cocaine     on    Alcides-Mendez’s         behalf          and     at       his    direction.
    Evidence was further offered that Alcides-Mendez determined how
    much   cocaine    his     recruit   would       transport         on    any       given   trip,
    arranged the travel logistics, and paid his recruit on a flat,
    by-the-trip basis, much like one would pay an employee.                                   Based
    on this evidence, the district court did not clearly err in
    ruling    that    a     preponderance      of       the    evidence          supported     the
    conclusion that Alcides-Mendez was a manager or supervisor over
    at least one participant in the conspiracy.
    The conclusion that Alcides-Mendez was a manager or
    supervisor is dispositive on the second issue, whether Alcides-
    Mendez was eligible for safety valve relief.                            Pursuant to USSG
    § 5C1.2(a)(4), a defendant is eligible for sentencing under the
    safety    valve    only    if    “the   defendant           was    not       an    organizer,
    leader,    manager,       or    supervisor         of     others       in    the    offense.”
    Accordingly,      the    district    court         properly       denied      safety      valve
    relief.
    Finally, Alcides-Mendez argues that the district court
    failed to make proper inquiry into a conflict he had with his
    4
    attorney prior to sentencing that resulted in his inadequate
    understanding of the presentence report.            The record belies this
    claim, however, and reflects that the district court did explore
    this issue and found that counsel provided Alcides-Mendez with a
    full explanation of the report.          Therefore, this claim warrants
    no relief.
    Accordingly, we affirm the district court’s judgment.
    We   dispense   with   oral   argument   because    the   facts   and   legal
    contentions     are   adequately   presented   in   the   materials     before
    this court and argument would not aid the decisional process.
    AFFIRMED
    5
    

Document Info

Docket Number: 14-4329

Citation Numbers: 587 F. App'x 72

Filed Date: 12/11/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023