U.S. v. Barreto, 88-1678
| Decision Date | 14 April 1989 |
| Docket Number | No. 88-1678,88-1678 |
| Citation | 871 F.2d 511 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis BARRETO, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Walter M. Reaves, Jr., West, Tex., for defendant-appellant.
LeRoy Morgan Jahn, U.S. Atty., Richard L. Durbin, Jr., Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before POLITZ, KING, and SMITH, Circuit Judges.
Convicted of conspiracy to distribute cocaine, possession with intent to distribute cocaine, and distribution of cocaine, 21 U.S.C. Secs. 846 and 841(a)(1), Jose Luis Barreto appeals, contending that the sentencing statute, commission, and guidelines are unconstitutional and that the trial court erred in its application of the guidelines. Finding the first challenge foreclosed by a recent Supreme Court ruling, and neither error of law nor clearly erroneous finding of fact in the sentencing procedure, we affirm.
Barreto owned and operated "Joe's Cottonwood Club," a bar in Waco, Texas which became the focus of an investigation by the Texas Department of Public Safety in late 1987. During a three-month period undercover officers made several purchases of cocaine from Barreto. In a typical scenario the officers indicated an interest in buying cocaine, Barreto made a telephone call, the cocaine was brought to the club and placed in Barreto's automobile, Barreto retrieved the contraband, and delivered it to the officers.
Barreto was arrested on March 4, 1988 while in possession of approximately one-half pound of cocaine which he planned to sell to an undercover agent. He was later indicted on seven counts of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1); possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1); and conspiracy to distribute cocaine, 21 U.S.C. Sec. 846. Pursuant to a plea agreement, the prosecutor dismissed three distribution counts and Barreto entered guilty pleas to the remaining counts.
The initial Presentence Investigation Report reflected an imprisonment range of 41 to 51 months. 1 The court imposed a prison term of 48 months, followed by three years of supervised release. In addition to challenging the validity of the sentencing statute, commission, and guidelines, Barreto contends that the trial court erred in increasing the offense level on the grounds that he was an organizer, and by declining to decrease the offense level because of his acceptance of responsibility.
Barreto's challenges to the constitutionality of the Sentencing Reform Act of 1984, 18 U.S.C. Sec. 3551 et seq., and 28 U.S.C. Secs. 991-998, the United States Sentencing Commission, and the Sentencing Guidelines were rejected by the Supreme Court in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Those issues are foreclosed.
He next contends that the district court erred in finding that he was an organizer or leader of the charged criminal activity which led to a two-point increase in his offense level. Guidelines 3B1.1 provides:
Based on the defendant's role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(b) If 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, increase by 3 levels.
(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.
Whether a defendant was "an organizer, leader, manager, or supervisor" of the criminal activity is a question of fact which we review under the clearly erroneous standard, giving due regard to the trial court's assessment of the credibility of the witnesses. 18 U.S.C. Sec. 3742(d); United States v. Mejia-Orosco, 868 F.2d 807 (5th Cir.1989). The commentary to sentencing guideline section 3B1.1 suggests that the court consider the following factors in making the organizer, leader, manager, supervisor determination: (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 or organizing the offense; (6) the nature and scope of the illegal activity; and (7) the degree of control and authority exercised over others. Application Note 3, Sec. 3B1.1.
The district court's finding that Barreto met the organizer requirement is not without foundation and thus is not clearly erroneous. The evidence showed that Barreto acted independently, determining whether to sell to the undercover officers, as well as deciding the quantity, source, and price of the contraband. He orchestrated the time, place, and manner of delivery of the cocaine to him and its subsequent distribution to his customers. He was able to obtain up to one-half pound of cocaine without advance payment and he had more...
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...Cir.1989) (sentencing judge may consider lack of candor and failure to voluntarily surrender in timely fashion); United States v. Barreto, 871 F.2d 511, 513 (5th Cir.1989) (lack of candor with probation officer considered denial of acceptance). We note that the commentary for § 3E1.1 states......
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