United States v. Gabriel Zuniga , 228 F. App'x 954 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 22 2007
No. 06-12888 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20065-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL ZUNIGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 22, 2007)
Before DUBINA, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Gabriel Zuniga appeals the 240-month sentences imposed
following his guilty plea for attempting to import cocaine, conspiracy to import
cocaine, and conspiracy to possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 846 and 963. Zuniga was involved in the transportation of large
quantities of cocaine from Colombia into the United States, via the Caribbean.
Zuniga argues that the district court clearly erred by applying a three-level
aggravating role enhancement pursuant to U.S.S.G. § 3B1.1. Zuniga asserts that
the district court incorrectly found that he and co-conspirator Cesar Augusto
Mantilla Chavez were on the same level in the conspiracy, where the evidence
showed that Zuniga was Mantilla’s subordinate. Zuniga contends that he was
merely a middleman with no control over the conspiracy.
“A district court's upward adjustment of a defendant's Guidelines offense
level due to his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding
of fact reviewed only for clear error.” United States v. Phillips, 287 F.3d 1053,
1055 (11th Cir. 2002).
Section 3B1.1 of the Sentencing Guidelines provides for enhanced offense
levels for defendants with aggravating roles. U.S.S.G. § 3B1.1. “If the defendant
was a manager or supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants” then a three-level enhancement is to be
applied. U.S.S.G. § 3B1.1(b). The assertion of control or influence over only one
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individual is enough to support a § 3B1.1 enhancement. See United States v.
Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000). “The government bears the burden
of proving by a preponderance of the evidence that the defendant had an
aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226
(11th Cir. 2003).
After reviewing the record, we conclude that the district court did not clearly
err in applying a three-level aggravating role enhancement to Zuniga. There is no
dispute that the instant drug-trafficking conspiracy involved five or more
participants. The evidence makes it clear that Zuniga “assert[ed] control or
influence” over the distribution of cocaine once it was delivered from Colombia to
Jamaica, using others to unload, transport, and sell cocaine in Jamaica, and over
the delivery of drug-sale proceeds back to Colombia, using others to personally
transport the money. This is sufficient to support the three-level aggravating role
enhancement. See Jiminez, 224 F.3d at 1251. Accordingly, we affirm Zuniga’s
sentences.
AFFIRMED.
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