United States v. Leodan Vasquez ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2530
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Leodan Vasquez, *
*
Appellant. *
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Submitted: December 10, 2008
Filed: January 21, 2009
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Before WOLLMAN, BYE, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
The district court1 sentenced Leodan Vasquez (Vasquez) to 320 months
imprisonment after a jury found Vasquez guilty of two methamphetamine charges.
Vasquez appeals his sentence, arguing the district court (1) erred in imposing a three-
level enhancement under U.S.S.G. § 3B1.1(b) based on Vasquez’s managerial or
supervisory role in the offense, and (2) abused its discretion in departing upward
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
under U.S.S.G. § 4A1.3 based on under-representation of Vasquez’s criminal history.
We affirm.
I. BACKGROUND
On August 8, 2007, a law enforcement officer was conducting surveillance of
a Fort Dodge, Iowa, residence when the officer observed a white car and a black truck
leave the residence. The officer followed the vehicles and noticed the driver and
passenger of the truck were not wearing seatbelts. The officer requested a marked
vehicle to conduct a traffic stop of the truck, and the driver and passenger
subsequently put on their seatbelts. When a marked law enforcement vehicle
attempted to stop the truck, the driver refused to stop and, instead, engaged officers
in a high speed chase through Fort Dodge. During the chase, officers observed items
being thrown out the windows of the truck. The chase came to a halt when the truck
crashed into a parked vehicle. Law enforcement vehicles surrounded the truck.
Undeterred, the driver of the truck attempted to back away from the parked vehicle,
ramming into a law enforcement cruiser.
Vasquez, the driver of the truck, and Juan Jose Islas-Bravo (Islas-Bravo), the
passenger, were arrested. Officers retrieved the items thrown from the truck, which
were identified as a scale and a baggie containing 65.28 grams of methamphetamine
(21.9% pure). A search of the truck yielded cash and other personal items. Officers
executed a search of the Fort Dodge residence and discovered a surveillance camera
at the back door with monitors inside; 277.8 grams of methylsulfonylmethane (MSM),
a methamphetamine cutting agent; $3,655.38 in cash; and personal items indicating
Vasquez resided at the residence.
On October 26, 2007, a grand jury returned a superseding indictment against
Vasquez and his co-defendant, Islas-Bravo, charging them with (1) conspiracy to
distribute and possess with intent to distribute 500 grams or more of a
methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and
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846; and (2) possession with intent to distribute and aiding and abetting the
distribution of 50 grams or more of a methamphetamine mixture containing 5 grams
or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B) and 18 U.S.C. § 2.2 On February 14, 2008, the government filed notice
of its intent to seek an enhanced penalty for Vasquez based on his prior felony drug
conviction in Missouri state court.
Vasquez’s jury trial commenced on February 19, 2008. Several cooperating
witnesses testified at Vasquez’s trial. Wilmer Antonio Mendez disclosed he supplied
Vasquez an “8-ball” (3.54 grams) of methamphetamine mixture almost every other
day for three months before December 2006. Whitney Davies (Davies) indicated she
and Gene Smith (Smith) acquired an ounce or an ounce and a half of
methamphetamine from Vasquez on two or three occasions in the spring of 2007.
Ashley Feauto (Feauto) testified she purchased methamphetamine from Vasquez
twenty-five to thirty times between January and March 2007. Feauto related she
purchased one-half ounce quantities approximately fifteen to twenty times, an ounce
on three occasions, and an 8-ball on one occasion. Feauto also reported she provided
Vasquez with MSM, and when Vasquez did not have any methamphetamine, Feauto
would sell Vasquez’s buyers the MSM, pretending she was Vasquez’s dealer. That
way, Feauto claimed, if the buyers discovered it was “bad meth,” they would blame
Feauto, rather than Vasquez. Feauto would then split the profits with Vasquez. On
February 21, 2008, the jury found Vasquez guilty on both counts.
Vasquez’s sentencing hearing took place on July 3, 2008. The presentence
investigation report (PSR) calculated a total offense level of 34 and a criminal history
category of III. Based on Vasquez’s offense level and criminal history category, the
advisory United States Sentencing Guidelines (Guidelines) range was 188 to 235
2
The third count in the superseding indictment charged Vasquez’s co-defendant,
Islas-Bravo, with unlawfully entering the United States from Mexico, in violation of
8 U.S.C. § 1325(a).
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months imprisonment. See U.S.S.G. § 5 Sentencing Table. Because the government
sought an enhanced penalty based on Vasquez’s prior felony drug conviction,
Vasquez’s conviction carried a mandatory minimum of 20 years, or 240 months,
imprisonment. At the sentencing hearing, the government objected to (1) the PSR’s
failure to calculate a three-level enhancement for Vasquez’s managerial or supervisory
role in the offense, (2) the PSR’s failure to calculate a two-level enhancement for
obstruction of justice based on Vasquez’s discarding of drugs and other evidence
during the police chase, and (3) the PSR’s failure to recommend an upward departure
based on under-representation of Vasquez’s criminal history.
After hearing testimony and arguments, the district court found the government
met its burden of proof with respect to the three-level enhancement based on
Vasquez’s managerial or supervisory role in the offense and with respect to the
upward departure for under-representation of Vasquez’s criminal history. However,
the district court found the government failed to meet its burden with respect to the
obstruction of justice enhancement.
Based upon these rulings, the district court determined Vasquez’s total offense
level increased from 34 to 37 and his criminal history category increased from III to
IV, making Vasquez’s advisory Guidelines range 292 to 365 months imprisonment.
The district court sentenced Vasquez to two concurrent terms of 320 months
imprisonment and ten years of supervised release. Vasquez appeals the sentence.
II. DISCUSSION
A. Role Enhancement
Vasquez argues the district court erred in imposing a three-level role
enhancement because the government failed to meet its burden of proof to show
Vasquez exercised the requisite control, direction, or supervision over his co-
conspirators to warrant the enhancement. “We review for clear error the district
court’s factual findings underlying the imposition of a sentencing enhancement based
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on the defendant’s role in the offense.” United States v. Rosas, 486 F.3d 374, 376
(8th Cir. 2007) (citing United States v. Carpenter, 422 F.3d 738, 748 (8th Cir. 2005)).
“The [g]overnment has the burden of proving by a preponderance of the evidence that
the aggravating role enhancement is warranted.” United States v. Garcia-Hernandez,
530 F.3d 657, 665 (8th Cir. 2008) (citing United States v. Mesner, 377 F.3d 849,
851-52 (8th Cir. 2004)).
A defendant’s offense level may be increased by three levels “[i]f 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).
“We construe the terms ‘manager’ or ‘supervisor’ broadly under U.S.S.G. § 3B1.1.”
United States v. Erhart, 415 F.3d 965, 973 (8th Cir. 2005) (citing United States v.
Schwarck, 961 F.2d 121, 123 (8th Cir. 1992)). Application note 4 of U.S.S.G.
§ 3B1.1 sets forth the following factors to consider in determining whether a role
enhancement is warranted:
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.
At the sentencing hearing, the government called Smith to the stand, and Smith
described how he first met Vasquez in the winter of 2006-2007 when Smith went to
a house to purchase methamphetamine. During that meeting, Vasquez spoke in
Spanish to another man before coming up with a price for the methamphetamine.
Vasquez gave Smith his phone number, and Smith would call Vasquez when he
wanted to purchase methamphetamine. Vasquez would set the price for the
methamphetamine depending on the quantity and quality, and tell Smith where to
meet him. Vasquez sometimes sold Smith “bunk dope,” which was methamphetamine
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that contained large amounts of MSM. Smith purchased approximately 8 ounces total
of methamphetamine from Vasquez between the time of their first meeting and June
2007. Vasquez occasionally fronted methamphetamine to Smith, meaning Vasquez
gave Smith methamphetamine when Smith was short on money with the
understanding Smith would pay Vasquez for the methamphetamine at a later date.
In addition to Smith’s testimony about his relationship with Vasquez, the
government argued Feauto’s and Davies’s trial testimony supported the government’s
contention that Vasquez acted in a managerial or supervisory capacity. The
government cited Davies’s corroboration of Smith’s account of his relationship with
Vasquez. The government also cited to Feauto’s testimony (1) Vasquez sold her
drugs twenty-five or thirty times, (2) Feauto provided Vasquez with MSM, and
(3) Feauto sold MSM to Vasquez’s customers, so they would not blame Vasquez for
the poor quality.
After hearing from both the government and Vasquez’s counsel, the district
court imposed a three-level role enhancement. The district court stated, “I think it’s
a very close question, but I find by a preponderance of the evidence that the
government did meet its burden under [§] 3B1.1(b).” A review of the sentencing
transcript demonstrates the district court weighed the evidence and counsel’s
arguments and considered the appropriate factors under U.S.S.G. § 3B1.1. Although
this issue does present a close question, we conclude the government presented
sufficient evidence, when considered in its totality, to meet its burden of proof. Thus,
the district court’s imposition of a three-level role enhancement was not clearly
erroneous.
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B. Upward Departure
Vasquez also contends the district court erred in departing upward on the basis
that Vasquez’s criminal history was under-represented because Vasquez’s “record, on
balance, was not so egregious as to warrant rejection of the guidelines’ criminal
history placement.” “We review for abuse of discretion any departures from the
advisory sentencing Guidelines.” United States v. Rouillard, 474 F.3d 551, 555 (8th
Cir. 2007) (citing United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005))
(considering a district court’s upward departure based on under-representation of
criminal history).
“Upward departures under § 4A1.3(a) are applicable if ‘reliable information
indicates the defendant’s criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likelihood that the defendant will
commit other crimes.’” United States v. Mosby, 543 F.3d 438, 441-42 (8th Cir. 2008)
(quoting U.S.S.G. § 4A1.3(a)(1)). “When contemplating and structuring such a
departure, the district court should consider both the nature and extent of a defendant’s
criminal history.” United States v. Hacker, 450 F.3d 808, 812 (8th Cir. 2006) (citing
United States v. Gonzales-Ortega, 346 F.3d 800, 802 (8th Cir. 2003)). “In deciding
the likelihood that a defendant may commit other crimes, a court may ‘take into
account any “evidence of obvious incorrigibility”’ and ‘conclude that . . . leniency has
not been effective.’” United States v. Herr, 202 F.3d 1014, 1016 (8th Cir. 2000)
(quoting United States v. Goings, 200 F.3d 539, 542 (8th Cir. 2000)).
The PSR indicates Vasquez accumulated seven criminal history points;
however, pursuant to U.S.S.G. § 4A1.1(c), only four points were assessed. In addition
to these four points, Vasquez accumulated two additional points because he was on
probation in Missouri state court at the time he committed the offenses relevant to this
appeal. Vasquez’s six criminal history points translated into a criminal history
category of III. Vasquez made only a blanket objection to the factual statements
appended to the criminal history entries in the PSR. To preserve an objection to any
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of the PSR factual statements, Vasquez should have made an objection to a specific
factual allegation. See United States v. Wintermute, 443 F.3d 993, 1005 (8th Cir.
2006) (quoting United States v. Sorrells, 432 F.3d 836, 838 (8th Cir. 2005)) (“A
sentencing court may accept the facts in a PSR as true unless the defendant objects to
specific factual allegations.”).
After hearing arguments from both sides at the sentencing hearing, the district
court imposed an upward departure, explaining,
Well, I think the government’s met its burden of proof because I
think the criminal history substantially underrepresents the likelihood
that the defendant will commit further crimes. He had a conviction in
’04 theft conviction. Then he gets another conviction just a little over a
year later in ’05. Then he has [an] assault conviction in ’05. Then in ’06
he has a contempt, another contempt in ’06, a drug conviction in ’06,
another assault in ’07 and then the eluding which was part of the instant
offense. But, you know, if you look at ’04, he doesn’t go barely a year
without committing crimes, and then he has multiple convictions in ’05,
’06, and ’07.
And if you just look at it, he’s got -- he’s got theft convictions,
multiple assault convictions, multiple contempt, a drug conviction. He
doesn’t look like a criminal history category [III] to me. And so I think
it is substantially underrepresented. And so I’m going to raise his
criminal history from a category [III] to a category [IV].
After reviewing the record, we are satisfied the district court considered the
appropriate factors and gave an adequate explanation for its decision to impose an
upward departure. Vasquez committed seven offenses in a span of less than four
years. The most recent offenses were committed while Vasquez was on probation in
Missouri state court. We agree with the district court that Vasquez’s criminal history
record indicates a strong likelihood he will commit future crimes. Thus, the district
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court did not abuse its discretion in increasing Vasquez’s criminal history category
from III to IV.
III. CONCLUSION
We affirm Vasquez’s sentence and the district court’s judgment.
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