United States v. Varma , 295 F. App'x 686 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2008
No. 07-20904
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MANDANLAL VARMA, also known as Massa Ram Chumbar, also known as
Madan Singh
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-308-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Illegal aliens paid Mandanlal Varma to arrange their smuggling from
India into the United States. Varma unwittingly coordinated the smuggling
with undercover agents from Immigrations and Customs Enforcement. After
extensive communicating and coordinating with the undercover agents, Varma
arrived with eight illegal aliens in Houston, Texas, where he and the aliens were
arrested. Varma pleaded guilty to encouraging and inducing an alien to come
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-20904
to, enter, or reside in the United States for commercial advantage and private
financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv), (a)(1)(B)(I) (2005). On
appeal, Varma argues that the district court erred by enhancing his sentence
based on his role as a leader or organizer under U.S. SENTENCING GUIDELINES
MANUAL § 3B1.1(a) (2007). Varma contends that he had no power to negotiate
smuggling prices and that his role was merely that of a “steerer” – someone who
brings together smugglers and people who want to illegally enter the United
States.1
We review the district court’s sentencing decision for “reasonableness,”
applying the abuse-of-discretion standard. United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). We review de novo the district court’s
interpretation or application of the Guidelines, and we review its factual findings
for clear error. Id.Guideline § 3B1.1(a) provides for a four-level increase in the base offense
level where “the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” § 3B1.1(a). To
qualify for an adjustment under § 3B1.1(a), the defendant must have been the
organizer or leader of one or more other participants. Id. cmt. n.2.2 In
1
Varma also objected in the district court to the number of aliens attributed to him as
this resulted in a three-level increase to his sentence. Varma does not, however, raise this
objection on appeal, and therefore it is waived. See FED. R. APP. P. 28(a); United States v.
Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007), cert. denied, No. 07-10909, 2008 WL 2076688(Jun. 9, 2008).
2
Citing cases from other circuits, Varma contends that “supervision of one person does
not support an enhancement for a supervisor, much less a leader or organizer.” United States
v. Burgos, 324 F.3d 88, 93 (2d Cir. 2003); United States v. Sayles, 296 F.3d 219, 224 (4th Cir.
2002). However, these cases do not stand for that proposition. Burgos states the opposite: “It
is enough to manage or supervise a single other participant.” 324 F.3d at 93 (addressing the
three-level enhancement for manager/supervisor). Sayles turns on a lack of evidence of control
over anyone. 296 F.3d at 225-26, 227. The Guidelines comment itself makes clear that being
an organizer or leader of one participant is sufficient. § 3B1.1 cmt. n.2.Varma’s counsel,
therefore, is reminded of her ethical obligation not to misrepresent authority to this court.
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No. 07-20904
determining whether the defendant held an organizational or leadership role,
relevant factors include:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
United States v. Valdez, 453 F.3d 252, 263 (5th Cir. 2006) (quoting § 3B1.1 cmt.
n.4). When making factual determinations concerning an increase to an offense
level, the district court may rely on the information in the Presentence Report
(“PSR”) “so long as the information has ‘some minimum indicium of reliability.’”
United States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992) (quoting United States
v. Vela, 927 F.2d 197, 201 (5th Cir. 1991)). The defendant must present rebuttal
evidence to demonstrate that the information contained in the PSR is
“‘materially untrue, inaccurate or unreliable.’” United States v. Washington, 480
F.3d 309, 320 (5th Cir. 2007) (quoting United States v. Carbajal, 290 F.3d 277,
287 (5th Cir. 2002)). “Mere objections do not suffice as competent rebuttal
evidence.” United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
We hold that the district court did not err by determining that Varma was
a leader or organizer of the smuggling enterprise at issue and applying the
§ 3B1.1 four-level sentence enhancement. The PSR indicated that Varma’s
smuggling enterprise was international in scope, reaching countries including,
but not limited to, India, Thailand, Jamaica, Dominican Republic, Cuba,
Curacao, Guyana, Suriname, Canada, England, and the United States. The PSR
stated that Varma was the smuggling operation’s “Suriname-based lieutenant”
before 2005, when Varma shifted his base of operation to the Dominican
Republic. Varma organized the individuals to be smuggled, he provided
passports to undercover agents for the individuals who were to be smuggled, and
he controlled the transfer of the “smuggling fees.” Varma ensured that his
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No. 07-20904
“contacts” were in place at originating airports where the individuals were to be
smuggled, and he arranged for airline tickets to be processed in the aliens’
names. By his own admission, Varma had at least one individual working
directly for him (Collin Billingly, who transported Varma’s alien “packages”),
and another individual (“Mukesh Last Name Unknown”) met with undercover
agents on Varma’s behalf, acting as an intermediary and a translator.
It was Varma’s burden to rebut this evidence as “materially untrue,
inaccurate or unreliable,” see Washington, 480 F.3d at 320, but he has failed to
meet that burden. Varma introduced no evidence to refute the facts in the PSR;
rather, he argued that those facts were unsupported by sufficient evidence. As
noted above, mere objections to the facts do not suffice as competent rebuttal
evidence. Parker, 133 F.3d at 329. Absent competent rebuttal evidence from
Varma, the facts from the PSR as adopted by the district court are not clearly
erroneous and support the district court’s conclusion that Varma had an
organizational or leadership role in the smuggling enterprise at issue.
Accordingly, the district court correctly enhanced Varma’s sentence under
§ 3B1.1(a).
The judgment of the district court is AFFIRMED.
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