U.S. v. Gonzalez Edeza

• Decision Date: 01 March 2004
• Docket Number: No. 02-5157.,02-5157.
• Citation: 359 F.3d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose GONZALEZ EDEZA, a/k/a Jose Luis Pelaez-Morgan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

359 F.3d 1246

UNITED STATES of America, Plaintiff-Appellee, v. Jose GONZALEZ EDEZA, a/k/a Jose Luis Pelaez-Morgan, Defendant-Appellant.

No. 02-5157.

United States Court of Appeals, Tenth Circuit.

March 1, 2004.

Submitted on the briefs:^*

Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant

Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, for Defendant-Appellant.

David E. O'Meilia, United States Attorney, and Kevin Danielson, Assistant United States Attorney, Office of the United States Attorney for the Northern District of Oklahoma, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, BALDOCK, and McCONNELL, Circuit Judges.

TACHA, Chief Circuit Judge.

A jury convicted Defendant-Appellant Jose Gonzalez Edeza on three drug-trafficking-related counts. On appeal, he argues that the district court erroneously enhanced his sentence and constructively amended the grand jury's indictment. We disagree.

I. Background

A grand jury indicted Mr. Gonzalez Edeza on three counts: (1) conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 846; (2) possessing with intent to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii); and (3) traveling in interstate commerce to promote a drug conspiracy in violation of 18 U.S.C. § 1952 (the "Travel Act"). He was convicted on all three counts and sentenced.

On appeal, Mr. Gonzalez Edeza first argues that the district court erred by increasing his offense level under U.S. Sentencing Guidelines Manual § 3B1.1(b) (2002) ("U.S.S.G."), contending both that insufficient evidence exists to establish his role as a manager or supervisor and that the district court made insufficient factual findings to support the enhancement. He next asserts that we should overturn his Travel Act conviction because either the district court's instructions constructively amended that charge or a fatal variance existed between his indictment on that charge and the evidence offered at trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and AFFIRM.

II. Discussion

A. Sentence Enhancement Under U.S.S.G. § 3B1.1(b)

Mr. Gonzalez Edeza first contends that insufficient evidence exists to show that he was a manager or supervisor of the conspiracy, asserting instead that he was an equal to his coconspirators. We review for clear error the district court's determination that Mr. Gonzalez Edeza acted as a manager or supervisor. United States v. VanMeter, 278 F.3d 1156, 1166 (10th Cir. 2002). Under this standard, we "will not reverse a lower court's finding of fact simply because we would have decided the case differently. Rather, [we] ... ask whether, on the entire evidence, [we are] left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (citations omitted) (internal quotations omitted).

"Section 3B1.1(b) provides a three level increase in the base offense level if the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants." United States v. Green, 175 F.3d 822, 833 (10th Cir.1999) (internal quotations omitted). At bottom, "[a] supervisor is one who exercised some degree of control over others involved in the commission of the offense or ... [who was] responsible for organizing others for the purpose of carrying out the crime." United States v. Allemand, 34 F.3d 923, 931 (10th Cir.1994) (internal quotations omitted). To qualify for the enhancement, Mr. Gonzalez Edeza need only manage or supervise one participant. United States v Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir.1998). To determine whether the district court properly applied this section to Mr. Gonzalez Edeza, we consider:

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. U.S.S.G. § 3B1.1, Application Note 4.

In enhancing Mr. Gonzalez Edeza's sentence, the district court stated:

[T]he Government has established through citation to the record that there has been exercised in this case, by the defendant Mr. Edeza, the requisite kind of direction and control necessary to establish that he is a manager/supervisor. The court adopts by reference the factual citations in where there were communications, specifically from the defendant to Mr. Briones giving instructions, as well as other activities by Mr. Edeza where he was ordering and directing the conduct of Mr. Briones. Moreover, there is testimony ... by officer Guzman that would form the basis of [a] manager/supervisor [determination], and therefore the court finds that the manager/supervisor determination is appropriate in this case.

The government's brief in support of enhancement, which the district court incorporated by reference into its findings, cites to several facts to support the enhancement, including that Mr. Gonzales Edeza coordinated Mr. Briones's methamphetamine delivery and that Mr. Gonzalez Edeza exercised some supervision during a key meeting on May 23, 2001. We find that the record supports these assertions and thus cannot find that the district court clearly erred by increasing Mr. Gonzalez Edeza's sentence under § 3B1.1(b).

Mr. Gonzalez Edeza next argues that we should remand the case for resentencing because the district court's order contained insufficient factual findings to support the enhancement. To support this position, he cites to United States v. Pelliere, 57 F.3d 936 (10th Cir.1995). We disagree.

In Pelliere, we remanded a case for resentencing after determining that the district court articulated "no specific findings to support its decision." Id. at 940. Pelliere required remand because the absence of factual findings "hindered" our appellate review, leaving it "to flounder in the zone of speculation." Id. (internal quotations omitted). Thus, Pelliere would counsel remand in this case only if we found the district court's factual findings so conclusory as to render the enhancement unreviewable. They are not.

By adopting the factual citations in the government's brief as part of its findings, the district court provided a clear and definite basis for enhancing Mr. Gonzalez Edeza's sentence — one that we have no difficulty reviewing. We therefore find that the district court made sufficient factual findings to support the enhancement. Cf. United States v. Eyman, 313 F.3d 741, 745 (2d Cir.2002) ("A district court satisfies its obligation to make the requisite factual findings [for the purposes of a U.S.S.G. § 3B1.1(a) enhancement] when it indicates in its written judgment that it is adopting the findings set forth in the [Presentence Investigation Report].").

B. Constructive Amendment

Although he did not raise the issue below, Mr. Gonzalez Edeza argues on appeal that we should reverse his Travel Act conviction because the jury instructions and the evidence presented at trial either constructively amended his indictment or created a fatal variance. To support this contention, he notes that the Travel Act indictment only charged him with "knowingly and willfully travel[ing] in interstate commerce from the State of Utah to the Northern District of Oklahoma." (emphasis added). He then observes that the district court instructed the jury that "to sustain its burden of proof for the crime of traveling in interstate commerce to promote an unlawful activity as charged in Count Seven..., the government must prove ... [that the] Defendant traveled or used facilities in interstate commerce ...." (emphasis added). Mr. Gonzalez Edeza argues that by instructing the jury that it could convict him for either traveling or using facilities in interstate commerce, the district court effectively amended his indictment, which he argues requires us to reverse his conviction.

In response, the government admits that the Travel Act indictment did not charge Mr. Gonzalez Edeza with using facilities in interstate commerce. Nevertheless, the government contends that the first charge — conspiracy to distribute methamphetamine — put Mr. Gonzalez Edeza on notice that the government intended to introduce evidence regarding his telephone use — the facility of interstate commerce at issue here.¹ The government therefore concludes that Mr. Gonzalez Edeza cannot claim surprise, which is to say, Mr. Gonzalez Edeza was not prejudiced.²

1. Standard of Review

We review unobjected-to claims of constructive amendment under a plain error standard. United States v. Cavely, 318 F.3d 987, 999 (10th Cir.2003). To meet this standard "the error must (1) be an actual error that was forfeited; (2) be plain or obvious ...; (3) affect substantial rights.... [; and] (4) ... seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings." United States v. Edgar, 348 F.3d 867, 871 (10th Cir.2003). If all four prongs are satisfied, we "may then exercise [our] discretion to notice [the] forfeited error." Id.

Although we have little doubt that Mr. Gonzalez Edeza could satisfy the first three prongs of plain error review,³ we instead move quickly to the dispositive fourth prong — whether the alleged constructive amendment affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Cotton, 535 U.S. 625, 632-33, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ("[W]e need not resolve... [the first three prongs of plain error review], because even assuming respondents' substantial rights were affected, the error did not seriously affect the fairness, integrity, or public...