U.S. v. Ortiz, 89-1056

• Decision Date: 28 June 1989
• Docket Number: No. 89-1056,89-1056
• Citation: 878 F.2d 125
• Parties: UNITED STATES of America v. Angel ORTIZ, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 125

878 F.2d 125

UNITED STATES of America v. Angel ORTIZ, Appellant.

No. 89-1056.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

June 28, 1989.

June 29, 1989.

Edward F. Borden, Jr., Philadelphia, Pa., for appellant.

Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Paul L. Gray, Asst. U.S. Atty., Philadelphia, Pa., for appellee.

Before MANSMANN, SCIRICA and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge

Angel Ortiz appeals from a judgment of sentence. The district court had subject matter jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction under 28 U.S.C. Sec. 1291.

I.

Angel Ortiz was charged in a five-count indictment with various offenses related to a single cocaine distribution that occurred on August 3, 1988. He pled guilty to four counts, and subsequently the prosecutor moved to dismiss the final count. The district judge applied the sentencing guidelines and imposed a sentence of 235 months (19 years, 7 months). Ortiz argues that the district court misapplied the sentencing guidelines.

II.

The "Aggravating Role" guidelines instruct the district court that "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants ... increase [the offense level] by four levels." Sentencing Guidelines Sec. 3B1.1(a). They further instruct that "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants ... increase [the offense level] by three levels." Sentencing Guidelines Sec. 3B1.1(b). The district court found that Ortiz was an "organizer or leader" and increased his offense level by four levels. Ortiz argues that, given its factual findings, the district court should not have found him to be an organizer or leader under the guidelines, but merely a "manager or supervisor." He does not dispute that there were five or more persons involved in the criminal activity.

A.

We first address the appropriate standard of review, a question not squarely decided before in this Circuit. Cf. United States v. Ofchinick, 877 F.2d 251 (3d Cir.1989). As amended on November 18, 1988, title 18 U.S.C. Section 3742(e) states that "[t]he court of appeals ... shall give due deference to the district court's application of the guidelines to the facts." We are required to determine the meaning of this "due deference" standard. ¹

The legislative history of the amendment adopting the due deference standard states: "[t]his standard is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a district court's determination will depend upon the relationship of the facts found to the guidelines standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely." 134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988) (statement of Rep. Conyers) (Section-By-Section Analysis of Sentencing Amendments included in Title VII, Subtitle C of the Anti-Drug Abuse Act of 1988).

As two courts of appeals have recognized, the application of the guidelines can present a mixed question of law and fact. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989); United States v. Wright, 873 F.2d 437 (1st Cir.1989). That is certainly the case with the applications at issue here. The standard of review articulated in the legislative history is close--if not identical--to "the standard courts have long employed when reviewing mixed questions of fact and law," Daughtrey, 874 F.2d at 217. In reviewing a district court's determination where a mixed question "is 'essentially factual,' ... the concerns of judicial administration will favor the district court, and the district court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo." United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982)), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Because we conclude that the question of a defendant's aggravating role in this crime is "essentially factual," we will reverse the district court in this case only if its conclusion is clearly erroneous. We need not resolve precisely how closely a district court's determination must be scrutinized as it approaches the purely "legal." It suffices to say that given the statutory language we are to apply, movement from the entirely factual toward the entirely legal will intensify the delicacy of the process.

B.

The commentary to the guidelines states that "[i]n distinguishing a leadership and organizational role from one of mere management or supervision.... [f]actors the court should consider 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." Sentencing Guidelines Sec. 3B1.1 commentary. ²

The district court adopted the findings appearing in the presentence report. The court concluded that Ortiz performed the role of a principal in the transaction. It found that Ortiz made the decision regarding the place, the quantity and the price to be paid for the cocaine. It found that he gave directions to some of the others involved in the transaction, and that he directed his son Bobby Luis Ortiz to act as a lookout. The district court further found that Ortiz directed that the transaction and the actual exchange take place in his van, although he was not present in the van when the transaction took place. The court also concluded that he helped recruit at least two of the accomplices, his son and Gilberto Hernandez. Ortiz does not contest any of these findings of fact before us.

The defendant first argues that the "scope of the illegal activity" was quite narrow, because it was only a single transaction. The commentary refers, however, not merely to "scope," but to the "scope and nature" of the illegal activity. This single purchase of four kilograms of cocaine represents a substantial quantity of cocaine. Even if we concede that the scope of this crime was narrow, in nature, as the district court found, this was "a serious, serious offense."

Ortiz next argues that there was no evidence concerning the size of the share of the fruits of the crime, and that his degree of control and authority exercised over others was minimal. The commentary to the guidelines of course is intended only to suggest various factors to be weighed. Indeed it purports only to list "factors the court should consider." There need not be evidence of every factor before a defendant is found to be a "leader or organizer."

Lastly, Ortiz argues that his participation was secondary to that of Enrique Lopez, one of the co-defendants. The commentary to the guidelines states "[t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal...