United States v. Munoz , 132 F. App'x 756 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 26, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-2051
v. (D.C. No. CR-02-1135-JC)
JOSE MUÑOZ , also known as Joe, (D. New Mexico)
also known as Guerro,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
Defendant Jose Muñoz pleaded guilty to three counts of importing less than
50 kilograms of marijuana, see 21 U.S.C. §§ 952(a) and 960(b)(4), one count of
importing more than 50 kilograms of marijuana, see 21 U.S.C. § 940(b)(3), and
one count of conspiracy to import more than 100 kilograms of marijuana, see 21
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
U.S.C. § 963. The presentence report (PSR) recommended a four-level
enhancement to the base-offense level of 26 because Defendant acted as an
organizer or leader in a criminal activity that included five or more participants.
See United States Sentencing Guidelines (USSG), § 3B1.1(a) (2003). It also
recommended a two-level enhancement because Defendant used or attempted to
use a minor (who was named) to commit the offense. See USSG § 3B1.4.
Defendant filed a written objection to both enhancements. Regarding the
enhancement for his role in the offense, Defendant argued that “[a]t most, [his]
conduct rose to the level of manager or supervisor, in that he was involved in the
recruitment of drivers.” R. Vol. I, Doc. 43 at 2. His objection to the § 3B1.4
enhancement was that he did not recruit the named minor to participate in the
criminal activity but merely loaned her a truck. Id. at 3.
The district court overruled both objections. Addressing Defendant’s
objection to the § 3B1.4 enhancement, the court noted that even if Defendant did
not recruit the named minor, evidence showed that he involved other minors in
the criminal activities; and defense counsel virtually conceded the point. R. Vol.
III at 5-6. The court also overruled Defendant’s objection to the organizer-or-
leader enhancement, saying:
Well, it seems to me that although he’s clearly not the leader
and these are not his drugs, he’s not the kingpin in that sense, he
does seem to fall within the definition of an organizer. He recruited
some, if not all, of the drivers. He made sure they were paid, made
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sure their vehicles were registered properly so they could get
through, suggested to them that they come up with certain alibis and
props using their children to cross the border. So it’s hard to think of
how he would not be an organizer. He enlisted others; he recruited
others. You only need to manage two others under Tenth Circuit
law. I think he’s within this definition. Although he may not be one
of the Sopranos, . . . he certainly is an organizer on this trip or these
multiple trips could not have happened without his organization. . . .
....
I understand that he may not be the leader, but he is an
organizer. These trips were clearly organized by him. He may have
been doing it at directions, but none of this could have happened
without him registering the vehicles, getting the spending money,
passing along whatever routes, even if he’s just the conduit,
suggesting alibis to get past Border Patrol.
Id. at 14-16. The district court applied the enhancements, deducted three levels
for acceptance of responsibility, and thus adopted the PSR’s recommendation:
total offense level 29, criminal history category I. Defendant was sentenced to 87
months’ imprisonment, the bottom of the guidelines range.
Defendant appeals, again arguing that although he might be a manager or
supervisor, his participation did not rise to the level of an organizer or leader. He
concedes that he recruited some members of the conspiracy and facilitated
transportation of individuals to Mexico for the purpose of drug smuggling, but he
denies having any decision-making authority or receiving a share of the profits
from the illegal activities.
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Because the enhancement is written in the disjunctive, it is applicable if
Defendant is either a leader or an organizer. United States v. Tagore, 158 F.3d
1124, 1131 (10th Cir. 1998). We review for clear error the district court’s
determination that Defendant was a leader or organizer. Id. at 1130. We find no
clear error here.
In addition, Defendant raised Blakely v. Washington, 124 S. Ct. 2531(2004), in a supplemental-authority letter filed under Fed. R. App. P. 28(j). He
did not, however, file a motion for post-submission consideration nor request
permission to file a supplemental brief properly raising Blakely, and he has not
submitted anything regarding United States v. Booker, 125 S. Ct. 738 (2005). We
do not consider issues asserted only in a Rule 28(j) letter and accordingly decline
to address Defendant’s Blakely argument. United States v. Lindsey, 389 F.3d
1334, 1335 n.1 (10th Cir. 2004).
The judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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