United States v. Silverio , 118 F. App'x 541 ( 2004 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Defendant-appellant Jaime Angulo Salazar appeals from a judgment of conviction and sentence entered on October 29, 2003 in the United States District Court for the Southern District of New York (Kimba M. Wood, Judge), following his guilty plea. On appeal, Salazar argues that the district court erred in (1) applying a four-level aggravating role adjustment pursuant to § 3Bl.l(a) of the United States Sentencing Guidelines; and (2) imposing a sentence that was unconstitutional in light of the Supreme Court’s decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Familiarity with the facts and proceedings below is assumed. We affirm.

We review the district court’s factual findings with respect to a § 3B1.1 role adjustment for clear error, but review de novo the court’s determination that these findings support the application of the adjustment. See United States v. Si Lu Tian, 339 F.3d 143, 156 (2003). Section 3Bl.l(a) provides for a four-level enhancement “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive,” although the defendant need only be an organizer or leader with respect to one other participant for the guideline to apply. See id. At a hearing conducted prior to sentencing, the government presented significant evidence that Salazar was involved in overseeing the distribution of cocaine, and that he recruited and controlled at least one other participant in the drug ring. That evidence included testimony by a cooperating witness who worked as a courier for Salazar, a recorded telephone conversation in which various individuals acted deferentially toward Salazar, and a drug ledger indicating that proceeds from persons distributing the cocaine had been delivered to him. The evidence showed, moreover, that Salazar was in a position in which he could require those distributors to prove to him that the police had in fact seized cocaine the distributors had been given to sell. In light of this evidence, we conclude that the district court did not err in applying § 3B1.1.

Salazar also challenges his sentence on the grounds that it is unconstitutional under the Supreme Court’s decision in Blakely v. Washington. We recently decided, however, that we would adhere to the existing law of the Circuit until the Supreme Court determines that its reasoning in Blakely applies to the United States Sentencing Guidelines. See United States v. Mincey, 380 F.3d 102, 106 (2d Cir.2004). Thus, we affirm the sentence imposed on Salazar by the district court. See, e.g., United States v. Thomas, 274 F.3d 655, 664 (2d Cir.2001) (in banc).

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.

The mandate in this case will be held pending the Supreme Court’s decision in United States v. Booker, — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004) (cert granted) (mem.), and United States v. Fanfan, — U.S. -, 125 S.Ct. 12, 159 L.Ed.2d 838 (U.S. cert. granted Aug. 2, 2004) (cert. granted) (mem.). Should any party believe there is a special need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the Court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fan-fan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan.