United States v. Marvin Lopez , 497 F. App'x 687 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2481
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marvin Donaldo Chehuen Lopez
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-2497
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Rony Eleazar Guerra-Guala,
also known as Rony Eliazar Guerra-Guala,
also known as Alex
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: December 14, 2012
Filed: February 7, 2013
[Unpublished]
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Before WOLLMAN, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Marvin Donaldo Chehuen Lopez and Rony Eleazar Guerra-Guala (collectively,
Defendants) pleaded guilty to one count of conspiring to distribute and to possess
with intent to distribute 500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine and a mixture or substance containing a
detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),
(b)(1)(C), and 846. The district court1 sentenced Chehuen Lopez and Guerra-Guala
to 120 and 192 months’ imprisonment, respectively. Defendants appeal their
sentences, arguing that there was insufficient evidence to support the district court’s
application of aggravating-role enhancements under United States Sentencing
Guidelines (Guidelines) § 3B1.1. Guerra-Guala also argues that the district court
erred in calculating the drug quantity attributable to him. We affirm.
I. Background
In 2009, law enforcement officers received information that Defendants were
distributing methamphetamine in St. Paul, Minnesota. The officers’ investigation
confirmed that Defendants and several other individuals were distributing large
amounts of methamphetamine and some cocaine.
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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Defendants pleaded guilty without a plea agreement after a grand jury indicted
them and eleven other coconspirators. At his change of plea hearing, Chehuen Lopez
admitted that from May 2009 to approximately September 2010 he acted as a runner
for the conspiracy by delivering cocaine and methamphetamine to customers in
Minnesota. He stated that he delivered around three pounds of methamphetamine per
week during the conspiracy, but that, towards the end, this amount dropped to about
a pound per week. When changing his plea, Guerra-Guala stated that his role in the
conspiracy was to take orders from customers over the phone and send a runner to
deliver the drugs and collect the customer’s money. Guerra-Guala said that he
engaged in this activity nearly every day.
The United States Probation Office’s presentence reports (PSRs) recommended
that Chehuen Lopez receive a three-level enhancement for being a manager or
supervisor of the conspiracy and that Guerra-Guala receive a four-level enhancement
for being an organizer or leader of the conspiracy. The PSRs attributed at least 15
kilograms of methamphetamine to Defendants. Defendants objected to the
aggravating role enhancements, and Guerra-Guala objected to the PSR’s drug
quantity calculation.
The district court held a joint evidentiary hearing on the objections, during
which it heard testimony from Deputy Chris Freichels, the primary case agent, and
Jason Leblonde, a coconspirator who had purchased methamphetamine from
Defendants.
Freichels testified in detail regarding the roles that Defendants played in the
conspiracy. Prior to 2007, Guerra-Guala’s cousin, Yuris, ran a drug distribution
operation in Minnesota. Guerra-Guala worked in the operation as a contact person,
taking orders from customers over the phone and dispatching runners to deliver the
drugs and collect the customer’s money. According to Freichels, Guerra-Guala
assumed control over all aspects of the operation when Yuris left for Guatemala in
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2007. Wire taps of Guerra-Guala’s phones revealed that he would order drugs from
his source and have them shipped to Minnesota. When a shipment arrived, Guerra-
Guala would direct a coconspirator, who held the drug proceeds for Guerra-Guala,
to have the purchase money available and to deliver the money to a certain place.
Freichels also overheard Guerra-Guala setting the price for the drugs, telling his
coconspirators where to store the drugs, and ordering them to secure cutting agents
to dilute the drugs before repackaging them.
Towards the end of the conspiracy, Freichels overheard Guerra-Guala saying
that he was going to return to his native Guatemala and that he planned to place
Chehuen Lopez and another individual in charge of the conspiracy in his absence.
Chehuen Lopez was to handle the drug proceeds and assume Guerra-Guala’s position
as the conspiracy’s contact person. Chehuen Lopez became the conspiracy’s contact
person in September 2010, when he began taking orders from customers and
dispatching a runner to deliver the drugs. Leblonde testified that in the summer of
2010, he encountered Chehuen Lopez and another member of the conspiracy making
a delivery at someone’s house. Leblonde believed that Chehuen Lopez was training
the coconspirator to be a runner.
Both Freichels and Leblonde testified about the amount of methamphetamine
involved in the conspiracy. Freichels recounted statements by several named
coconspirators concerning the amount of methamphetamine they purchased from
Defendants. Additionally, he estimated certain amounts of methamphetamine that the
coconspirators purchased from Defendants. When totaled, these amounts constituted
well over 40 kilograms. Leblonde testified that during the summer of 2008 he
purchased between a pound and a pound and a half of methamphetamine five times
a week. Thereafter, Leblonde’s purchase of methamphetamine dropped to
approximately an ounce or two per week.
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At sentencing, the district court overruled Chehuen Lopez’s and Guerra-
Guala’s objections to the PSRs and imposed the earlier-described sentences.
II. Discussion
We review the district court’s construction and application of the Guidelines
de novo. United States v. Augustine, 663 F.3d 367, 374 (8th Cir. 2011). We review
for clear error the district court’s factual findings regarding the aggravating role
enhancements and the drug quantity determination, applying the preponderance of the
evidence standard. Unites States v. Gamboa, 701 F.3d 265, 266 (8th Cir. 2012) (role
in offense); United States v. Walker, 688 F.3d 416, 420 (8th Cir. 2012) (drug quantity
determination).
A. Aggravating Role Enhancements
As relevant to this case, Guidelines § 3B1.1 authorizes two enhancements for
a defendant’s role in criminal activity involving at least five participants. See
U.S.S.G. § 3B1.1(a), (b). A defendant who is an “organizer or leader” of the criminal
activity is subject to a four-level enhancement. U.S.S.G. § 3B1.1(a). A “manager or
supervisor (but not an organizer or leader)” of the criminal activity is subject to a
three-level enhancement. U.S.S.G. § 3B1.1(b).
Defendants do not argue that the conspiracy involved fewer than five
participants. Instead, they dispute the district court’s characterization of their roles
in the conspiracy. A number of factors are taken into account when determining a
defendant’s role in the offense:
[T]he 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
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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.
U.S.S.G. § 3B1.1 cmt. n.4.
1. Guerra-Guala
Guerra-Guala argues that the evidence was insufficient to support the district
court’s finding that he was an “organizer” or “leader” of the conspiracy under
Guidelines § 3B1.1(a). He contends that he was simply a contact person for the
conspiracy and that Yuris was actually in charge. The evidence at the sentencing
hearing showed that Guerra-Guala purchased drugs for the conspiracy, determined
the price at which these drugs were sold, and directed his coconspirators concerning
the management of the drug proceeds, the storage and processing of the drugs, and
the delivery of the drugs to customers. Freichels testified that “[i]t was always Mr.
Guala that was directing everyone. No one told him what to do.” Tr. 30. Indeed,
when Guerra-Guala decided to return to Guatemala, he determined who his
successors would be and what roles they would play in the conspiracy. Construing
the terms “organizer” and “leader” broadly, United States v. Molina-Perez, 595 F.3d
854, 862 (8th Cir. 2010), we conclude that the district court did not clearly err by
imposing an enhancement under Guidelines § 3B1.1(a).
2. Chehuen Lopez
Chehuen Lopez argues that the district court erred in applying the three-level
“manager” or “supervisor” enhancement because his role in the conspiracy was that
of a mere “dispatcher.” “[W]e have defined the terms ‘manager’ and ‘supervisor’
quite liberally, holding that a defendant can be subject to this enhancement for having
managed or supervised only one other participant in the criminal conspiracy.” United
States v. Lopez, 431 F.3d 313, 317-18 (8th Cir. 2005). Additionally, the
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enhancement “‘may apply even if the management activity was limited to a single
transaction.’” Id. at 318 (quoting United States v. Zimmer, 299 F.3d 710, 724 (8th
Cir. 2002)).
It is undisputed that Chehuen Lopez began acting as the contact person for the
conspiracy in September 2010. As the contact person, Chehuen Lopez would take
orders from customers and negotiate the place of delivery. He would then direct the
conspiracy’s runner, whom, according to Leblonde, Chehuen Lopez had trained, to
deliver the drugs and collect the money from the customer. Given this evidence, the
district court’s finding that Chehuen Lopez was a manager or supervisor was not
clearly erroneous. See United States v. Cole, 657 F.3d 685, 687-88 (8th Cir. 2011)
(per curiam) (upholding enhancement where defendant “transported/and or directed
the transportation” of drugs and directed a coconspirator to drive him from city to city
to deliver drugs); Lopez, 431 F.3d at 316-18 (upholding enhancement where
defendant asked his roommate to “serve as a lookout on one occasion”).
B. Drug Quantity
Guerra-Guala argues that the evidence was insufficient to support the district
court’s drug quantity determination. “This court will overturn a finding of drug
quantity only if the entire record definitively and firmly convinces us that a mistake
has been made.” United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012) (citation
omitted). “When calculating drug quantity in the context of a narcotics trafficking
conspiracy, the sentencing court may consider all transactions known or reasonably
foreseeable to the defendant that were made in furtherance of the conspiracy.” United
States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir. 2006).
The district court’s drug quantity determination was not clearly erroneous.
Freichels described a conspiracy that sold more than 40 kilograms of
methamphetamine. Leblonde corroborated this testimony by stating that he had
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purchased between a pound and a pound and a half of methamphetamine five times
a week during the summer of 2008.2 Further, Chehuen Lopez stated that he delivered
between one to three pounds of methamphetamine per week during his time as a
runner for the conspiracy.
Guerra-Guala objects to the district court’s reliance on this evidence, arguing
that the statements of Leblonde and his coconspirators were not reliable. “But
‘[a]rguments about the reliability of a witness are in reality an attack on the credibility
of that testimony, and witness credibility is an issue for the sentencing judge that is
virtually unreviewable on appeal.’” Walker, 688 F.3d at 422 (quoting United States
v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002)). We see no basis to conclude
that the district court clearly erred by finding Freichels and Leblonde credible. The
evidence thus was sufficient to support the district court’s finding that Guerra-Guala
was responsible for at least 15 kilograms of methamphetamine.
III.
The sentences are affirmed.
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2
Guerra-Guala’s brief points out in a footnote that his sale of methamphetamine
to Leblonde during the summer of 2008 occurred prior to the initial date of the
conspiracy alleged in the indictment. When determining drug quantity, however, the
district court may consider all drugs “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). The
evidence showed that the conspiracy began well before the April 2009 date alleged
in the indictment, and both Leblonde and Freichels testified that Guerra-Guala was
integrally involved in the conspiracy’s sale of methamphetamine to Leblonde in the
summer of 2008. Thus, the district court appropriately considered Guerra-Guala’s
sale of methamphetamine to Leblonde during this time period when making its drug
quantity determination.
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