United States v. Judiel Zapata Valenzuela , 635 F. App'x 568 ( 2015 )


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  •            Case: 14-14618   Date Filed: 10/23/2015   Page: 1 of 15
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-14618
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:14-cr-20267-KMM-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JUDIEL ZAPATA VALENZUELA,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (October 23, 2015)
    Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
    PER CURIAM:
    Case: 14-14618     Date Filed: 10/23/2015   Page: 2 of 15
    Defendant Judiel Zapata Valenzuela appeals his 70-month prison sentence,
    which the district court imposed after he pled guilty to conspiring to commit bank
    fraud and aggravated identity theft, in violation of 18 U.S.C. §§ 1344, 1349 and
    1028A(a)(1), respectively. On appeal, Defendant argues that the district court
    erred by imposing a three-level enhancement for his role as a manager or
    supervisor in the conspiracy. After careful review, we agree and vacate
    Defendant’s sentence.
    I. Background
    The bank fraud scheme for which Defendant was indicted involved theft by
    Venezuelan Postal Service employees of personal checks belonging to
    Venezuelans who had bank accounts in the United States. These checks were
    forwarded to this country where co-defendant Stanley Axel Peterson-Granucci
    became the point person for distributing them to co-conspirators, who endorsed the
    checks and deposited them into their own bank accounts, withdrew the proceeds of
    those checks, and then divided up the money according to varying formulas
    dependent on the particular transaction.
    Defendant participated in this conspiracy with co-defendants Peterson-
    Granucci, Marco Eugenio Mendoza, and Roberto Valle, as well as other
    unidentified co-conspirators. Like his co-conspirators, after Defendant had
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    successfully withdrawn the purloined funds from his own account, he paid his co-
    conspirators a cut of the deposited checks and kept a portion for himself.
    Defendant was indicted for one count of conspiring to commit bank fraud,
    eleven counts of bank fraud, and eleven counts of aggravated identity theft.
    Pursuant to a written plea agreement, he pled guilty to conspiring to commit bank
    fraud and to one count of aggravated identity theft.
    After Defendant entered his guilty plea, the probation office prepared
    Defendant’s presentence investigation report (“PSR”), calculating a base offense
    level of seven under U.S.S.G. § 2B1.1(a)(1). Pursuant to §§ 2B1.1(b)(1)(H) and
    2B1.1(b)(10)(B), (C), respectively, the probation office applied a 14-level
    enhancement, based on a loss amount between $400,000 and $1,00,000, and a two-
    level enhancement because the offense involved sophisticated means and a
    significant portion of the offense was committed outside the United States. Based
    on his purported supervision of co-defendants Mendoza and Valle, Defendant also
    received a three-level enhancement as a manager or supervisor of criminal activity
    that involved five or more participants, pursuant to § 3B1.1(b). Lastly, the
    probation office applied a three-level acceptance-of-responsibility reduction,
    pursuant to § 3E1.1(a) and (b), yielding a total offense level of 23.
    With no criminal history points, Defendant’s criminal history was a category
    I. Based on a total offense level of 23 and his criminal history category of I,
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    Defendant’s guideline range was 46 to 57 months’ imprisonment for the
    conspiracy conviction, to run consecutively to the 24-month sentence for the
    aggravated identity theft conviction.
    Prior to and at sentencing, Defendant objected to the manager/supervisor
    enhancement. Defendant argued that he had not managed or supervised anyone,
    and that, for the most part, his duties involved cashing checks that he received
    from Peterson-Granucci. Defendant also disagreed with the PSR’s specific
    assertion that he had pressured his brother to deposit a check or that he had
    supervised Valle.
    The basis for the above factual assertions in the PSR derived from comments
    that co-defendants Peterson-Granucci and Valle had made to Postal Inspector Luis
    Abru during their debriefing. At Defendant’s sentencing hearing, the Government
    called Inspector Abru, who recounted those statements. Finding the statements
    repeated by Abru to be reliable, albeit they were hearsay, the district court found
    the evidence sufficient to support the role enhancement, overruled Defendant’s
    objection, and applied the three-level enhancement. The court sentenced
    Defendant to 46 months’ imprisonment on the conspiracy count and to a
    consecutive 24-month sentence for the aggravated identity theft count, resulting in
    a 70-month total sentence.
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    II. Discussion
    Defendant argues on appeal that the district court erred in applying the three-
    level role enhancement because the Government failed to prove by a
    preponderance of the evidence the disputed facts in the PSR, and thus the
    Government did not present sufficient evidence that he was a manager or
    supervisor of the criminal activity. More specifically, Defendant contends that the
    evidence offered by the Government in support of the enhancement was too
    unreliable to warrant being credited by the district court.
    A. Standards of Review Applicable to Role Enhancement
    We review the enhancement of a defendant’s offense level based on his role
    as a manager or supervisor as a finding of fact reviewed for clear error. See United
    States v. Ramirez, 
    426 F.3d 1344
    , 1355 (11th Cir. 2005). We will not reverse for
    clear error unless we are left with a “definite and firm conviction that a mistake has
    been committed.” United States v. Crawford, 
    407 F.3d 1174
    , 1177 (11th Cir.
    2005) (quotation omitted).
    The Government must prove a § 3B1.1 aggravating-role enhancement by a
    preponderance of the evidence. United States v. Alred, 
    144 F.3d 1405
    , 1421 (11th
    Cir. 1998). Likewise, when a defendant objects to a fact in the PSR, the
    Government bears the burden of proving the disputed fact by the preponderance of
    the evidence. United States v. Bernardine, 
    73 F.3d 1078
    , 1080 (11th Cir. 1996).
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    “Although not as rigorous as the reasonable doubt or clear and convincing
    standards, the preponderance standard is not toothless. It is the district court’s
    duty to ensure that the Government carries this burden by presenting reliable and
    specific evidence.” 
    Id. (quotation omitted).
    The district court may base factual findings on evidence that would not be
    admissible at trial, including hearsay, but such evidence must bear sufficient
    indicia of reliability, and the defendant must have an opportunity to rebut it.
    United States v. Ghertler, 
    605 F.3d 1256
    , 1269 (11th Cir. 2010); U.S.S.G.
    § 6A1.3(a). Further, as long as hearsay statements are consistent with other
    evidence concerning defendant’s role in the conspiracy, the district court’s
    consideration of such statements will not constitute error. United States v. Gordon,
    
    231 F.3d 750
    , 759 (11th Cir. 2000).
    The Sentencing Guidelines call for a three-level enhancement where “the
    defendant was a manager or supervisor . . . and the criminal activity involved five
    or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). Factors
    that courts should consider when determining whether to apply this enhancement
    include: (1) the exercise of decision-making authority; (2) the nature of the
    participation in the commission of the offense; (3) the recruitment of accomplices;
    (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of
    participation in planning or organizing the offense; (6) the nature and scope of the
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    illegal activity; and (7) the degree of control and authority exercised over others.
    
    Id. § 3B1.1,
    cmt. (n.4). “There is no requirement that all of the considerations have
    to be present in any one case.” United States v. Caraballo, 
    595 F.3d 1214
    , 1231
    (11th Cir. 2010) (quotation omitted).
    Evidence that the defendant recruited and instructed participants in the
    conspiracy is sufficient to support a leadership enhancement. United States v.
    Ndiaye, 
    434 F.3d 1270
    , 1304 (11th Cir. 2006). However, a defendant’s status as a
    middleman or distributor is insufficient to support a managerial role enhancement.
    United States v. Yates, 
    990 F.2d 1179
    , 1182 (11th Cir. 1993). Rather, the
    Government must establish that the defendant exercised “authority in the
    organization that perpetrates the criminal conduct, the exertion of control, or
    leadership.” 
    Alred, 144 F.3d at 1422
    .
    B.    Evidence in Support of Role Enhancement
    The district court relied on three facts to support its inference that Defendant
    was a supervisor or manager: 1 (1) that Defendant directed co-defendant Valle 2; (2)
    that co-defendant Valle told Inspector Abru that Defendant “directed” other
    runners of checksand that co-defendant Peterson-Granucci told Abru that
    1
    Defendant disputes only the characterization of his actions as being those of a supervisor. He
    does not disagree that the “criminal activity involved five or more participants or was otherwise
    extensive.” See U.S.S.G. § 3B1.1(b).
    2
    The PSR had originally indicated that Defendant also “directed” Mendoza, but the
    Government agreed at sentencing that there was no evidence of any such direction.
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    Defendant had pressured Defendant’s brother to deposit a check, against the will of
    that brother.
    Defendant disputed the accuracy of these assertions at sentencing and, on
    appeal, he repeats his argument that the Government failed to prove the above facts
    by sufficient, reliable evidence. Further, as the Government appears to agree,
    should the above facts be deemed not to be proved by a preponderance of reliable
    evidence, any inference that Defendant functioned as a manager or supervisor in
    the conspiracy must likewise fall. We agree with Defendant that the evidence in
    this record is too thin to support the enhancement.
    As noted, that evidence was based entirely on that portion of Inspector
    Abru’s testimony that recounted statements made by two of Defendant’s co-
    defendants during their debriefing. But before turning to those statements, it is
    instructive that many of the factual averments in the PSR, as well as some of
    Inspector Abru’s testimony, supports an inference that, with the exception of
    Peterson-Granucci, who was the source of all the checks, the other identified
    participants in the check-cashing ring appear to have been on a relatively equal
    footing with each other, with little specific evidence that defendant was
    supervising anyone.
    Relying on interviews with Peterson-Granucci, the PSR indicates that co-
    defendant Mendoza brought Defendant into the scheme, telling Peterson-Granucci
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    that, like Mendoza, Defendant could deposit stolen checks into his own personal
    bank accounts. Peterson-Granucci then provided stolen checks to both Defendant
    and to Mendoza, directing these two men as to the amount to write on the blank
    checks and providing Defendant with fraudulent passports in the names of the
    victims of the theft that facilitated Defendant’s ability to cash the stolen checks.
    In fact, in his testimony, Inspector Abru suggested that, based on his own
    investigation and debriefing of the defendants, it was his impression that Valle,
    Mendoza, and Defendant seemed to occupy equivalent roles in the scheme.
    Specifically, when asked on cross-examination whether Valle, once he had
    received checks to cash, required or received any direction by Defendant as to how
    to accomplish that task, Inspector Abru seemed to indicate that such direction was
    not necessary.
    Q:     He [Valle] didn’t have to have any directions from Mr. Zapata or
    anybody else on how to do that [negotiate stolen checks] because he
    independently knew how to deposit checks?
    A:     They all working together. They were all coming to agreement
    together. . . .So, who directed at specific times Valle or who directed
    Mendoza at specific times, it’s hard to tell apart.
    Q:     Very good. So, in other words—and I think this is borne out by the
    overall facts. They all—these people all worked together, did they
    not?
    A:     Yes, they did.
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    Breaking down the above three facts that the Government argues support the
    role enhancement, we examine first the allegation that Defendant supervised co-
    defendant Valle. The evidence for this assertion is Abru’s understanding from
    talking to Peterson-Granucci and Valle that, as to some of the checks that Valle
    cashed, these checks had been sent to the address of Valle’s mother and that
    Defendant had caused those checks to be sent to that address. We are not so much
    concerned whether Abru’s hearsay declaration on this point is reliable or not as we
    are that this fact, even if true, does not, by itself, confer a leadership role on
    Defendant. In any enterprise involving multiple tasks or transactions, there must
    be some coordination of the logistics. Once Valle agreed to begin cashing checks
    in his own account, he first had to receive those checks before he could negotiate
    them. We do not discern a leadership role based on whose idea it was—
    Defendant’s or Valle’s—to send the checks to Valle’s mother’s address; that would
    appear to be a minor detail in the scheme of things. See United States v. Martinez,
    
    584 F.3d 1022
    , 1028 (11th Cir. 2009) (noting there is a distinction between
    creating or managing a transaction and merely coordinating the transaction; the
    person performing the latter duty may simply be “a subordinate charged with
    dealing with the relatively minor details of completing that transaction.”)
    Second, Valle recounted to Inspector Abru that, on one occasion, he and
    Defendant met with some of their check runners in Miami, at which meeting
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    Defendant provided the checks to be negotiated to the runners and “also got the
    cash back from the runners to give to everybody.” Although the Government has
    not attempted to corroborate this hearsay statement, nor did it call Valle as a
    witness, we will assume, for purposes of discussion, that Valle’s statement is
    accurate so far as it goes. But the bigger problem is that the statement is so lacking
    in detail that we cannot attribute a supervisory role to Defendant based on this
    isolated and unelaborated comment. As we noted in Martinez, in discussing
    similar inadequacies in the Government’s showing of a leadership role for the
    defendant in a drug conspiracy, the failure to provide details as to how the
    defendant organized or directed the criminal endeavor or what, if any degree, of
    decision-making authority he exercised, makes it impossible to conclude that the
    Government has met its burden of establishing that the defendant exercised a
    leadership role. 
    Id. at 1028,
    1029 (“[T]here is precious little we can infer from the
    bare, undisputed record that Martinez exercised any position of leadership or
    authority. . . .The facts to which Martinez acceded merely reveal that he acted in
    concert with his co-conspirators. . . .[and that he] ‘utilized other individuals’ to
    mail and receive drug shipments.”)
    It may well be that the Government could have justified a role enhancement
    for Defendant had its counsel further developed the information provided in the
    terse and vague statements offered by the two co-defendants. Yet, the Government
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    did not call these men to testify or otherwise put any meat on the bones of their
    conclusory statements. That being so, we conclude that the above two assertions
    do not provide a sufficient basis for imposing the leadership enhancement.
    The Government’s first two arguments having failed to persuade, that leaves
    only the Government’s assertion that, on one occasion, Defendant pressured his
    brother to deposit one of the stolen checks from Venezuela. 3 As Defendant
    objected to this statement in the PSR, the burden was on the Government to
    provide evidence in support of the PSR’s finding. See 
    Bernardine, 73 F.3d at 1080
    . At sentencing, the Government offered only Inspector Abru’s hearsay
    testimony that Peterson-Granucci had told him that Defendant had pressured his
    brother into depositing a check. Although Defendant was vehement in his
    objection that this statement lacked reliability or corroboration, the Government
    offered little evidence, or even much of an argument, to demonstrate that Peterson-
    Granucci’s statement was reliable. 4 Indeed, as recounted, the unexplained
    3
    The Government does not appear to be arguing that the recruiting, alone, of his brother would
    be sufficient in this case to render the defendant a supervisor in the scheme. Indeed, the
    Government would be hard-pressed to make this argument, given that Peterson-Granucci
    reportedly stated that Mendoza brought Defendant, as well as three other people, into the
    scheme. Yet, the PSR did not recommend a role enhancement for Mendoza, nor as far as we can
    determine did the Government ask for such an adjustment. Further, Peterson-Granucci also
    stated that Valle brought two individuals of his own into the scheme. Again, the PSR
    recommended no role enhancement for Valle.
    4
    The Government solicited testimony from Inspector Abru that Defendant’s brother’s bank
    records corroborated that the brother did, in fact, deposit a check. Yet, given Defendant’s denial
    to Abru that he had pressured his brother into depositing the check and Abru’s perception that
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    statement by Peterson-Granucci gives no hint as to how he would have known that
    Defendant had pressured his brother. Was Peterson-Granucci there when the
    pressure was applied? Did the brother or Defendant recount this to him? Neither
    the PSR nor the testimony of Abru offers any insight.
    In fact, weighing in against a conclusion that the Government proved the
    reliability of Peterson-Granucci’s assertion is further testimony of the postal
    inspector on cross-examination as to his inquiry in this matter. The inspector
    stated that he had asked Defendant about the allegation, during the several hours
    that the latter spent being debriefed by the inspector, and Defendant denied ever
    pressuring his brother. When asked whether he perceived Defendant to have been
    “totally honest and open with you,” Inspector Abru answered, “As far as I can tell,
    yes.” And, for whatever reason—whether he thought that Defendant was truthful
    in his denial or that the matter was simply not that important—Inspector Abru
    confirmed that he never made any effort to contact the brother to get the latter’s
    version of events.
    Accordingly, assuming that a role enhancement would have been warranted
    had the Government demonstrated that Defendant pressured his brother to deposit
    Defendant seemed to have been honest during the debriefing, the fact that the brother may have
    deposited a check sheds no light on whether he had done so only after having been pressured by
    Defendant.
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    a stolen check, the hearsay statement offered in support of this assertion was not a
    sufficiently reliable basis for drawing that factual inference. 5 See 
    Ghertler, 605 F.3d at 1269
    .
    III.   CONCLUSION
    In short, the Government has offered scant evidence that Defendant
    exercised a managerial or supervisory role in this conspiracy. Accordingly, we
    conclude that the district court erred in applying the three-level aggravated-role
    adjustment under U.S.S.G. § 3B1.1(b). Further, “remand for further findings is
    inappropriate when the issue was before the court and the parties had an
    opportunity to introduce relevant evidence. United States v. Canty, 
    570 F.3d 1251
    ,
    1257 (11th Cir. 2009) (citing United States v. Simons, 
    206 F.3d 392
    , 399 n.11 (4th
    Cir. 2000)). We therefore vacate the sentence imposed and remand with
    instructions to resentence Defendant without the three-level § 3B1.1(b)
    enhancement.
    5
    The Government has also argued that because Defendant did not specifically object to
    Paragraph 34 in the PSR, this paragraph alone would support the enhancement. (Paragraph 34
    stated that “[a]t the direction of Peterson-Granucci and [Defendant], Valle deposited checks into
    his Citibank accounts ending in 5389 and 5745, withdrew money from these accounts inside of
    Citibank and at various ATMs, and provided Peterson-Granucci and [Defendant] their share
    from the deposited checks.” It is true that the district court may base factual findings on
    undisputed statements in the PSR, and facts in the PSR are deemed admitted unless a party
    objects to them before the sentencing court. See United States v. Beckles, 
    565 F.3d 832
    , 843-44
    (11th Cir. 2009). We, however, disagree that Defendant failed to object to Paragraph 34. The
    facts put forth in paragraph 34 are simply a slightly more detailed explanation of the facts put
    forth in paragraph 39, and the record reflects that Defendant specifically objected to paragraph
    39. Moreover, Defendant explicitly argued in his objections to the PSR and at sentencing that he
    did not direct anyone, including Valle.
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    REVERSED AND REMANDED.
    15