United States v. Antonio Lopez-Popoca , 341 F. App'x 179 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 8, 2009
Decided August 6, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08-3284
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 07 CR 228-2
ANTONIO LOPEZ-POPOCA, William J. Hibbler,
Defendant-Appellee. Judge.
ORDER
Antonio Lopez-Popoca pleaded guilty to conspiracy to possess and distribute
cocaine and heroin in violation of 21 U.S.C. §§ 846, 841(a)(1) and was sentenced to 188
months’ imprisonment. Over Lopez-Popoca’s objection, the district court found that he was
a manager or supervisor for purposes of U.S.S.G. § 3B1.1(b) and thus that his base offense
level had to be increased by three. Lopez-Popoca challenges that decision on appeal. We
conclude, however, that the district court did not clearly err in this respect and thus affirm
the sentence.
No. 08-3284 Page 2
I
In his plea agreement, Lopez-Popoca admitted that he conspired with German
Pasion-Rios, Ricardo Delgado-Acasio, two government informants (designated as
Individuals A and B), and two unnamed Mexican suppliers to distribute cocaine and
heroin. Typically, the suppliers would front cocaine and heroin to Lopez-Popoca. His two
co-defendants, Pasion-Rios and Delgado-Acasio, helped him by receiving the drugs at his
stash house and preparing them for resale. Lopez-Popoca would then distribute the drugs
(again on credit) to Individuals A and B, who sold them to final consumers. At some point,
Individuals A and B began cooperating with the government.
Based on quantities of drugs alone, Lopez-Popoca was facing a mandatory statutory
minimum of ten years. He hoped that he would be eligible for the safety valve provided in
18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which permits the sentencing judge to impose “a
sentence in accordance with the applicable guidelines without regard to any statutory
minimum sentence.” U.S.S.G. § 5C1.2(a). A safety-valve sentence, however, is not available
for a person who was “an organizer, leader, manager, or supervisor of others in the
offense.” Id. at § 5C1.2(a)(4); see also § 3B1.1(a), (b). The sentencing hearing thus focused on
the question whether the facts supported a finding that Lopez-Popoca played a supervisory
role. More particularly, it focused on the relationship between Lopez-Popoca, on the one
hand, and Pasion-Rios and Delgado-Acasia, on the other. Including them raised the
number involved in his crimes to five (the necessary number under § 3B1.1(b)); if in
addition he managed or supervised them, he would not be eligible for the safety valve.
In its presentence report, the probation officer declined to apply the
manager/supervisor adjustment to Lopez-Popoca because there was nothing to indicate
whether Pasion-Rios and Delgado-Acasio were working for Lopez-Popoca, for themselves,
or for another person. In response, the government supplemented the report with Delgado-
Acasio’s plea agreement and Pasion-Rios’s plea agreement and safety-valve proffer. In his
plea agreement, Delgado-Acasio said that he worked for Lopez-Popoca. In addition, the
government introduced “DEA-6” forms memorializing Pasion-Rios’s proffer in conjunction
with his own efforts to obtain “safety-valve” treatment. According to that record, Pasion-
Rios stated that he worked for Lopez-Popoca, he received and paid for drug shipments
from the suppliers, he packaged the drugs for resale, delivered drugs to customers, and he
accepted payments from customers on behalf of Lopez-Popoca. Instead of keeping
customers’ payments, he turned over the proceeds to Lopez-Popoca, who paid him a
salary.
After considering the additional evidence, the district court found that “the other
two defendants [Pasion-Rios and Delgado-Acasio] really took their marching orders from
No. 08-3284 Page 3
the defendant,” and that Lopez-Popoca was their supervisor. Including the suppliers, but
excluding the government informants, see U.S.S.G. § 3B1.1 cmt. n.1, the court determined
that there were five members of the conspiracy and therefore, as a manager, Lopez-Popoca
deserved the three-level adjustment under U.S.S.G. § 3B1.1(b). This meant that Lopez-
Popoca was ineligible for a safety valve reduction. Lopez-Popoca’s adjusted offense level of
36 and criminal history category I yielded a guidelines imprisonment range of 188 to 235
months. The court sentenced Lopez-Popoca to 188 months’ imprisonment (well above the
statutory minimum of 120 months).
II
On appeal, Lopez-Popoca argues only that the district court erred in concluding that
he managed or supervised another participant in the drug distribution conspiracy. He
contends that Pasion-Rios’s statements in his plea agreement and proffer are conclusory
and unsupported by other evidence. He also complains that the hearsay statements
considered by the court (including those in Delgado-Acasio’s DEA-6 forms) were
unreliable. This court evaluates the district court’s determination that a defendant played a
supervisory or managerial role for clear error. United States v. Pira, 535 F.3d 724, 730 (7th
Cir.), cert. denied, 129 S. Ct. 583 (2008).
Viewed together, the plea agreements of Lopez-Popoca, Delgado-Acasio, and
Pasion-Rios, along with Pasion-Rios’s proffer, support the conclusion that Lopez-Popoca
supervised Pasion-Rios and Delgado-Acasio. He directed them to receive, package, and sell
drugs on his behalf. The proceeds went to Lopez-Popoca, and he then paid a salary to his
assistants. Lopez-Popoca’s own plea agreement admits that Pasion-Rios and Delgado-
Acasio “assisted defendant by receiving the narcotics on defendant’s behalf and preparing
it for resale to defendant’s customers.” Admissions in a plea agreement are conclusive.
United States v. Krasinski, 545 F.3d 546, 552 (7th Cir. 2008). Although the probation officer
thought that Lopez-Popoca’s plea agreement did not unambiguously demonstrate that
Pasion-Rios and Delgado-Acasio worked at the direction of Lopez-Popoca, the statements
from his co-defendants resolve any question: they both declared that they worked for
Lopez-Popoca.
Lopez-Popoca challenges the court’s reliance on Pasion-Rios’s statements because
they are conclusory and contain hearsay, but at sentencing a court may consider otherwise
inadmissible evidence, including hearsay, provided that it bears “sufficient indicia of
reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); United States v. Otero, 495
F.3d 393, 402 n.5 (7th Cir.), cert. denied, 128 S. Ct. 425 (2007). And, although the court was
No. 08-3284 Page 4
not required to credit any of these statements as true, see U.S.S.G. § 6B1.4(d); United States
v. Forman, 553 F.3d 585, 590 (7th Cir.), cert. denied sub nom. McKnight v. United States, 129 S.
Ct. 1924 (2009), and petition for cert. filed, No. 08-10436 (U.S. Apr. 3, 2009), it is almost
impossible to attack a credibility determination as clearly erroneous. See United States v.
Clark, 538 F.3d 803, 813 (7th Cir. 2008), cert. denied, 129 S. Ct. 1613 (2009). Lopez-Popoca
insists that “a fairer reading of the evidence” could show that Pasion-Rios and Delgado-
Acasio were “independent contractors,” but that is not the question: he had to show that
the only possible conclusion from the evidence is that they were independent, and he has
not done so. If two possible conclusions can be drawn from the evidence then the choice
between them cannot be clearly erroneous. See United States v. Hatten-Lubick, 525 F.3d 575,
580 (7th Cir. 2008).
Lopez-Popoca also argues that a supervisor designation is inappropriate because the
record does not support all of the factors listed in the guidelines. Although the guidelines
do not define “manager” or “supervisor,” the application note identifies seven relevant
factors: (1) the exercise of decision-making authority; (2) the nature of 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 and
organizing the offense; (6) the nature and scope of the illegal activity; and (7) the degree of
control and authority exercised over others. U.S.S.G. § 3B1.1 cmt. n.4; United States v.
Howell, 527 F.3d 646, 649 (7th Cir. 2008). But no single factor is a prerequisite to the
enhancement, and the factors are not necessarily entitled to equal weight. United States v.
Wasz, 450 F.3d 720, 729 (7th Cir. 2006). Here, the evidence easily supported the court’s
finding that Lopez-Popoca directed Pasion-Rios and Delgado-Acasio, claimed a larger
share of the proceeds, and was the one who negotiated with the suppliers regarding pricing
and delivery details. This was sufficient to support his designation as a manager or
supervisor.
Because the district court did not clearly err in concluding that Lopez-Popoca
played a managerial or supervisory role, we A FFIRM the sentence.