United States v. Trinidad Flores-Sotelo , 343 F. App'x 404 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15436 ELEVENTH CIRCUIT
AUGUST 21, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00477-CR-CC-25-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRINIDAD FLORES-SOTELO,
a.k.a. Espinilla,
a.k.a. Guicho,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 21, 2009)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Trinidad Flores-Sotelo appeals his 240-month sentences for conspiracy to
possess with intent to distribute cocaine and methamphetamine, possession with
intent to distribute cocaine, and conspiracy to launder money. After review, we
affirm.
I. BACKGROUND
A. Guilty Plea Hearing
Flores-Sotelo, indicted with 31 codefendants, pled guilty to three counts:
(1) conspiracy to possess with intent to distribute at least five kilograms of cocaine
and 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(ii) and (viii) and 18 U.S.C. § 2; (2) possession with intent to
distribute at least five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(ii) and 18 U.S.C. § 2; and (3) conspiracy to launder money, in
violation of 18 U.S.C. § 1956(h).
At Flores-Sotelo’s guilty plea hearing, the district court asked the
government to outline briefly the evidence it would present before a jury if the case
went to trial. The government first stated that Flores-Sotelo provided in excess of
a million dollars in drug proceeds to a driver to Texas. The government then
described Flores-Sotelo’s role in the overall conspiracy and his use of a residence
on St. James Place as a stash house, as follows:
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The organization – or Mr. Flores-Sotelo headed a particular cell
of this organization and they would receive large loads of cocaine,
often as much as 300 kilograms per load, via tractor-trailer. They
would receive the tractor-trailer and unload the cocaine in a
warehouse. They used multiple warehouses in the Atlanta area. They
would then take the cocaine to a stash house.
At least as of the time of his arrest October 12th, 2005, Mr.
Flores-Sotelo used at least two stash houses, one on St. James Place
and one on Rebecca Street, which are here in the Northern District of
Georgia. They would take the cocaine from the warehouse to one of
those houses and they would distribute them both here in the Atlanta
area and to other areas, including the Carolinas.
...
On October 12th – well, about a week prior to October 12th,
Mr. Flores-Sotelo received a load of just over 300 kilograms of
cocaine, a Schedule II controlled substance. They had not distributed,
they were storing it at one of the stash houses when [Drug
Enforcement Administration (“DEA”)] executed search warrants on
October 12th, 2005. . . .
Mr. Trinidad Flores-Sotelo possessed that cocaine. He did so
with the intent to distribute and the drug proceeds that he would have
subsequently obtained from the sale of cocaine and that he did obtain
on earlier occasions would then be sent down to Texas for shipment
into Mexico.
Flores-Sotelo’s counsel stated that he and Flores-Sotelo “would agree” with
“the material aspects and the substantive aspects” of the government’s evidence
proffer, but “would disagree” with “the leadership allegations.” Flores-Sotelo
himself also stated that, other than the “allegation of a leadership role,” he agreed
with the government’s evidence proffer.
B. PSI’s Offense Conduct
The presentence investigation report (“PSI”) detailed the relevant offense
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conduct. DEA agents in Georgia, Texas, California, New York, and Florida began
investigating a Mexican-controlled drug trafficking organization that imported
drugs into the United States. Agents investigated two cells of the organization that
operated independently but were connected by the same source, a supplier
identified as “Tono.” One cell was managed by the Defendant Flores-Sotelo and
the other by Javier Alvarez-Lopez. Flores-Sotelo hired the DEA’s confidential
informant to transport drug trafficking proceeds from Flores-Sotelo in Atlanta to
another location in Texas. DEA agents observed the confidential informant’s
delivery and searched the residence where the delivery was made. The agents
seized approximately $4,500,000 in drug proceeds and a drug ledger indicating that
Flores-Sotelo had delivered an additional $2,500,000 in drug proceeds from
Atlanta during the previous weeks.
During the investigation, the DEA intercepted a number of Flores-Sotelo’s
telephone calls. The DEA overheard Flores-Sotelo discuss (1) the shipment,
receipt, and disbursement of 100 kilograms of cocaine, (2) the receipt of a separate
delivery of 114 kilograms of cocaine, and (3) the collection and delivery of
$504,600 in drug proceeds, which the DEA obtained after observing Flores-Sotelo
deliver a bag to a driver of a tractor trailer and after hearing Flores-Sotelo notify
Tono that the delivery was complete.
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The DEA also intercepted phone calls between Flores-Sotelo and his
girlfriend, Ana Rojas-Rea, where they discussed the disbursement of drug
proceeds. Referring to a person who would come to their residence to retrieve
drug proceeds, Flores-Sotelo instructed Rojas-Rea over the telephone to “give
Chilango 1,000 balls from the drawer where the stereo is.” On another occasion,
Flores-Sotelo spoke to Rojas-Rea about purchasing a new telephone because he
used different telephone numbers as part of the drug conspiracy.
DEA agents also observed Flores-Sotelo coming and going from a rental
residence on St. James Place in Lawrenceville, Georgia. Agents searched that
residence on October 12, 2005, and recovered 305 kilograms of cocaine.
DEA agents searched Flores-Sotelo and Rojas-Rea’s residence and
recovered numerous cellular telephones, $410,326 in cash, one kilogram of
cocaine, three ounces of cocaine base, a small amount of marijuana, heat sealers,
and currency counting machines.1 Agents also discovered a vehicle that was
registered to Jesus Gonzalez-Diaz, who lived with Flores-Sotelo and was his
driver. The vehicle was modified with a hidden compartment between the back
seat and the trunk. According to the PSI, Flores-Sotelo directed the activities of
1
The PSI stated that Flores-Sotelo and Rojas-Rea lived on Rebecca Street, but it did not
indicate clearly whether their Rebecca Street residence was the same location as the Rebecca
Street stash house.
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Gonzalez-Diaz and Rojas-Rea but Flores-Sotelo himself operated at the direction
of Tono.
C. Advisory Guidelines Calculation
In determining Flores-Sotelo’s base offense level, the PSI held him
responsible for the 305 kilograms of cocaine found at the St. James Place residence
and the three ounces of cocaine base and $410,326 that were found during the
search of Flores-Sotelo’s residence. Accordingly, the PSI set Flores-Sotelo’s base
offense level at 38, pursuant to U.S.S.G. § 2S1.1(a)(1). The PSI recommended
(1) a two-level increase because he was convicted of a violation of 18 U.S.C. §
1956, pursuant to § 2S1.1(b)(2)(B), (2) a three-level increase for being the manager
of a criminal activity that involved five or more participants or was otherwise
extensive, pursuant to § 3B1.1(b), and (3) a three-level reduction for acceptance of
responsibility, pursuant to § 3E1.1(a)-(b). The PSI noted that Flores-Sotelo did not
qualify for safety-valve relief under § 5C1.2(a) because he was a manager or
supervisor and because he did not truthfully provide information to the
government. With a total offense level of 40 and a criminal history category of I,
Flores-Sotelo’s advisory guidelines imprisonment range was 292 to 365 months.
D. Sentencing
Flores-Sotelo did not object to the PSI’s factual recitations of the offense
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conduct. Rather, Flores-Sotelo objected only to three paragraphs in the PSI
calculating his advisory guidelines range and recommending that (1) the 305
kilograms of cocaine from the St. James Place residence were attributable to him,
(2) he should receive a three-level role enhancement for being a manager or
supervisor, and (3) he was ineligible for safety-valve relief. In the PSI itself, the
probation officer listed Flores-Sotelo’s objections and responded that Flores-Sotelo
(1) had a “notable connection” to the St. James Place residence because “the
defendant [Flores-Sotelo] and others established power for the St. James ‘stash’
house on April 20, 2005”; (2) managed Rojas-Rea and the cell involved at least
five participants; and (3) was not eligible for safety-valve relief because he was a
manager or supervisor.
At the beginning of the sentencing hearing, the district court adopted all of
the PSI’s factual findings and guidelines calculations except for the three
paragraphs to which Flores-Sotelo objected. Flores-Sotelo never challenged the
accuracy of the information in the probation officer’s responses to his objections.
At sentencing, Flores-Sotelo argued that even if he had been seen at the St. James
Place residence and had established power there in April 2005, this was
insufficient to connect him to the 305 kilograms of cocaine at the St. James Place
residence.
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After hearing from counsel for the government and Flores-Sotelo, the district
court overruled Flores-Sotelo’s sentencing objections. First, the district court
found that Flores-Sotelo had a “notable connection” to the St. James Place
residence and specified that “[o]ne of those notable connections” was that Flores-
Sotelo and others established power for the St. James Place residence in April
2005. Second, the district court found that the three-level managerial role
enhancement applied because the evidence clearly established that (1) there were
two cells involved in the drug conspiracy, one of which was headed by Flores-
Sotelo, (2) the cell headed by Flores-Sotelo involved five participants who were
identified by way of telephone surveillance, and (3) at the time of his arrest, Flores-
Sotelo had drugs in his house. Third, the district court found that Flores-Sotelo
was ineligible for safety-valve relief because of his role as a manager or supervisor
and, alternatively, because the prosecutor did not believe that Flores-Sotelo was
truthful during his debriefing.
The district court stated that it had considered the Sentencing Guidelines, the
18 U.S.C. § 3553(a) factors, the parties’ oral arguments, and the facts and
circumstances surrounding the conspiracy and the extent of Flores-Sotelo’s
involvement. The district court then sentenced Flores-Sotelo to 240 months’
imprisonment on each of the three counts, to run concurrently. Thus, Flores-Sotelo
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received sentences below his advisory guidelines imprisonment range of 292 to
365 months.
II. DISCUSSION
On appeal, Flores-Sotelo raises four sentencing issues. We review each in
turn.
A. Attribution of the St. James Place Cocaine
Flores-Sotelo claims that the district court erred in attributing the 305
kilograms of cocaine seized from the St. James Place residence to him because
there was insufficient evidence to tie him to the St. James Place residence.2
We disagree because the overall record adequately supports the district
court’s fact-finding that the St. James Place cocaine was attributable to Flores-
Sotelo. As found by the district court, one of Flores-Sotelo’s “notable
connections” to the residence was that Flores-Sotelo and others established power
for the St. James Place stash house on April 20, 2005. There is also the undisputed
statement in the PSI that, during the investigation, agents had seen Flores-Sotelo at
the St. James Place residence. Moreover, Flores-Sotelo pled guilty to being a key
figure in a drug conspiracy. At his plea hearing, the government proffered that
2
We review a district court’s determination of the drug quantity used to establish a
defendant’s base offense level for clear error. United States v. Simpson, 228 F.3d 1294, 1298
(11th Cir. 2000).
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Flores-Sotelo and his drug ring used the St. James Place residence as a stash house
and that Flores-Sotelo recently stashed just over 300 kilograms of cocaine there,
where it was seized by police officers. In response, Flores-Sotelo and his lawyer
stated that they substantially agreed with the government on all points except for
the government’s allegations of leadership. See Untied States v. Saunders, 318
F.3d 1257, 1271 n.22 (11th Cir. 2003) (“[T]he findings of fact of the sentencing
court may be based on evidence heard during trial, facts admitted by a defendant’s
plea of guilty, undisputed statements in the presentence report, or evidence
presented at the sentencing hearing.” (quotation marks omitted)). Given the
overall record in this case, we cannot say the district court clearly erred in finding
that the government met its burden of proving a sufficient link between Flores-
Sotelo, a key figure in a drug ring, and the cocaine at St. James Place, one of the
drug ring’s stash houses.3 See United States v. Butler, 41 F.3d 1435, 1444 (11th
Cir. 1995) (stating that the government must establish the drug quantity by a
3
At the sentencing hearing, the government proffered that, during debriefing, Flores-
Sotelo told the government that the St. James Place residence was one of the places the drugs
were kept and that Tono in Mexico was mad at him for having 305 kilograms there with no one
protecting it. Flores-Sotelo’s counsel objected to the use of this statement. The government
responded that Flores-Sotelo had opened the door by some of his arguments referencing the
debriefing. The district court stated that it would not consider at all Flores-Sotelo’s debriefing
statements. There is no cross-appeal and we thus do not consider any statements by Flores-
Sotelo in the debriefing. We also need not address the government’s alternative argument that
the district court’s attribution of the 305 kilograms of cocaine from the St. James Place residence
to Flores-Sotelo was harmless error.
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preponderance of the evidence).
B. Manager or Supervisor Enhancement
Flores-Sotelo next argues that the district court erred by not sufficiently
explaining the basis for its conclusion that he was the head of one of the two cells
prosecuted and thus giving him a three-level enhancement under U.S.S.G.
§ 3B1.1(b) for being a manager or supervisor.4 Additionally, Flores-Sotelo claims
that the government did not establish with specific evidence that he led a cell and
that the PSI did not set forth a sufficient factual basis to support such a finding.
Flores-Sotelo notes that he worked at the direction of Tono in Mexico.
Under § 3B1.1(b), a three-level enhancement is appropriate where “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.”
U.S.S.G. § 3B1.1(b). To qualify for an enhancement under § 3B1.1(b), the
defendant need only manage or supervise one other participant. See U.S.S.G. §
3B1.1 cmt. n.2.
The district court did not clearly err in enhancing Flores-Sotelo’s sentence
for his role as a manager or supervisor. First, Flores-Sotelo’s argument that the
4
“This Court has long and repeatedly held that a district court's determination of a
defendant's role in the offense is a finding of fact to be reviewed only for clear error.” United
States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
11
district court did not adequately explain its ruling is without merit, as the district
court specifically stated that it based its decision on the facts set forth in the PSI.
Nor was the district court’s fact-finding clear error. The unobjected-to facts
in Flores-Sotelo’s PSI show that (1) Flores-Sotelo operated the Atlanta cell of a
drug trafficking organization in which there were at least five participants: Flores-
Sotelo, Rojas-Rea, Gonzalez-Diaz, Tono, and Chilango; (2) Gonzalez-Diaz was
Flores-Sotelo’s driver and worked at his direction; and (3) Rojas-Rea operated at
Flores-Sotelo’s direction, as shown by the recorded telephone conversation in
which Flores-Sotelo directs Rojas-Rea to give drug proceeds to a person who
would visit their residence.5
Finally, Flores-Sotelo’s argument that he worked at the direction of Tono is
irrelevant. Having a subordinate role to another participant (Tono) does not
preclude a participant from supervising or managing other participants (such as
Gonzalez-Diaz or Rojas-Rea). United States v. Jones, 933 F.2d 1541, 1546-47
(11th Cir. 1991).
5
Facts not challenged in the PSI are deemed admitted as true. See United States v.
Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
Flores-Sotelo relies on United States v. Williams, 527 F.3d 1235, 1248-49 (11th Cir.
2008), to argue that Rojas-Rea was a minor participant over whom he had an insignificant degree
of control. However, Rojas-Rea’s role was more than the de minimis role described in Williams
because the unobjected-to facts in the PSI show that, unlike the appellant in Williams, Rojas-Rea
was a knowing participant who kept drugs at her home, discussed the distribution of drug
proceeds with Flores-Sotelo, and pled guilty to a charge related to the conspiracy.
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C. Safety-Valve Determination
Flores-Sotelo next argues that the district court was required to make its own
independent decision as to his truthfulness and erred in relying on the
government’s assessment of his truthfulness in determining that he was ineligible
for safety-valve relief under § 5C1.2(a).6 To be eligible for safety-valve relief, a
defendant must, inter alia, “truthfully provide[] to the Government all information
and evidence the defendant has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or plan” and not be “an
organizer, leader, manager, or supervisor of others in the offense.” U.S.S.G.
§ 5C1.2(a). In light of our conclusion that the district court did not err in
determining that Flores-Sotelo was a manager or supervisor, the district court did
not err in determining that he was ineligible for safety-valve relief for that reason
alone. Accordingly, we need not decide whether the district court erred as to
Flores-Sotelo’s truthfulness in debriefing.
D. Substantive Reasonableness
Flores-Sotelo also argues that his below-the-guidelines sentences were
unduly severe and violated 18 U.S.C. § 3553 because they were substantially
6
When reviewing a district court’s safety-valve determination, we review for clear error a
district court’s factual determination and de novo the court’s legal interpretation of the
guidelines. United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006).
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greater than necessary to achieve the goals of the Sentencing Reform Act.
However, Flores-Sotelo points to no specific reason why his sentences are
unreasonable.
We review the reasonableness of a sentence through a two-step process
using a deferential abuse-of-discretion standard. United States v. Pugh, 515 F.3d
1179, 1189-90 (11th Cir. 2008) (relying upon Gall v. United States, 552 U.S. 38,
, 128 S. Ct. 586, 594, 597 (2007)). First, we look at whether the district court
committed any significant procedural error, such as miscalculating the advisory
guidelines range, treating the guidelines range as mandatory, or failing to consider
the § 3553(a) factors. Id. at 1190. Second, we examine whether the sentence is
substantively reasonable by considering the totality of the circumstances and
evaluating whether the sentence achieves the sentencing purposes in § 3553(a). Id.
at 1190-91; United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Here, the district court did not abuse its discretion in imposing 240-month
imprisonment sentences that were below his advisory guidelines range of 292 to
365 months. First, as previously discussed, the district court committed no
procedural error in calculating Flores-Sotelo’s advisory guidelines range.
Moreover, before imposing Flores-Sotelo’s sentences, the district court stated that
it considered the advisory guidelines range and the § 3553(a) factors. Flores-
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Sotelo offers no specific reason why his below-the-guidelines-range sentences are
unreasonable, and, in any event, we discern none.
For the foregoing reasons, we affirm Flores-Sotelo’s 240-month sentences.
AFFIRMED.
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