U.S. v. Mir

• Decision Date: 11 December 1990
• Docket Number: No. 89-5695,89-5695
• Citation: 919 F.2d 940
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Armando MIR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 940

919 F.2d 940

UNITED STATES of America, Plaintiff-Appellee, v. Armando MIR, Defendant-Appellant.

No. 89-5695.

United States Court of Appeals, Fifth Circuit.

Dec. 11, 1990.

Richard E. Langlois, San Antonio, Tex. (court appointed), for defendant-appellant.

Philip Police, LeRoy Morgan John, Mark Barrett, Asst. U.S. Attys., and Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, WILLIAMS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Armando Mir was charged with one count of conspiracy to possess and distribute cocaine and one count of possession of cocaine with intent to distribute. Pursuant to a plea agreement, Mir pleaded guilty to possession with intent to distribute, and the district court dismissed the conspiracy count.

The court calculated Mir's offense level at 20, with four points added for Mir's role as a leader of the conspirators. On appeal, he asserts that the court erred by considering extraneous conduct in setting his base offense level and that the court could not give him a four-point upward adjustment for his leadership role because the count to which he pleaded guilty involved him alone. Finding no error, we affirm.

I.

The facts of this case in large part are not disputed and are contained within Mir's plea bargain. On July 19, 1988, Mir sold and delivered 27.68 grams of ninety-four-percent cocaine to Martene Wade, an undercover agent for the Drug Enforcement Administration (DEA). At that time, Wade asked Mir the price for a kilogram of cocaine, and Mir replied "twenty-two," meaning $22,000 per kilogram. Mir agrees that he sold the cocaine to Wade but denies that he told Wade that he actually had a kilogram of cocaine to sell.

Mir and seven codefendants were charged in an eight-count indictment with various narcotics and conspiracy offenses. Mir was named in two of the eight counts; however, he agreed to plead guilty to one count of possession with intent to distribute cocaine in exchange for the dismissal of the remaining conspiracy charge.

In the presentence investigation report ("PSI"), the probation officer stated that Mir and Alfredo Barbontin controlled a cocaine distribution network comprised of Cuban expatriates. ¹ The PSI also described several undercover agents' purchases of cocaine from that organization. These narcotics transactions included two additional sales to Wade conducted personally by Mir. Including the sale to which Mir pleaded guilty, total sales personally conducted by Mir totaled 100.38 grams.

At the sentencing hearing, DEA special agent Tommy Harr testified for the government regarding Mir's role as a leader of a cocaine distribution ring. Harr's testimony covered several narcotics transactions that were not mentioned in the PSI. One of these was his January 1988 purchase of 226 grams of cocaine from Ricardo Alanzo, Maria Alanzo, and Romelio Agant. While arranging that transaction, Harr observed Ricardo Alanzo dial Mir's telephone number. The next day, Mir and his wife drove the Alanzos and Agant to the prearranged location, where they delivered the cocaine to Harr. Mir observed the transaction from his car.

Harr also named seventeen individuals whom Mir supervised as part of his cocaine distribution organization. Three of these individuals, who were Albert Vega Alfonso, Andres Perez, and Luis Cantu, identified Mir as their supplier while they were dealing with Harr in his undercover capacity. Mir did not call any witnesses, although he did make a statement in which he denied participating in any narcotics sales other than the one to which he had pleaded guilty.

The probation officer recommended a base offense level of 20 based upon a total of 231.30 grams of cocaine sold to the undercover agents by Mir and his codefendants. See U.S.S.G. Sec. 2D1.1(a)(3). In addition, he recommended a four-level upward adjustment on the ground that Mir was a leader or organizer of the narcotics conspiracy. See id. Sec. 3B1.1(a). The sentencing range for a level 24 offense for a category I defendant such as Mir with no criminal history is 51 to 63 months.

The district court accepted the PSI and set Mir's base offense level at 20 because of his involvement in the distribution of more than 200 grams of cocaine and assessed four additional points for Mir's role as a leader or organizer. The court adopted the factual statements made in the PSI and sentenced Mir to 63 months in prison, five years of supervised release, and a $5000 fine.

II.

Mir contends that the district court erred by considering more cocaine than the twenty-seven grams to which he pleaded guilty as part of his plea bargain. In addition, Mir argues that the four-level upward adjustment was unwarranted, as the district court should not have looked beyond his immediate offense in determining whether Mir was the leader of a conspiracy.

As for the first argument, Mir does not dispute that the court could consider offenses beyond those of which he had been convicted. Rather, Mir contests the factual determination that he was involved in the sale of more than 200 grams of cocaine. We will reverse this factual determination only if it is clearly erroneous. See, e.g., United States v. Sarasti, 869 F.2d 805, 806 (5th Cir.1989); United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). Any unadjudicated conduct considered in determining sentence must be supported by a preponderance of the evidence. McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2418-19, 91 L.Ed.2d 67 (1986).

The district court set Mir's base offense level at 20, which covers defendants who distribute between 200 and 300 grams of cocaine. See U.S.S.G. Sec. 2D1.1(c)(12). In arriving at level 20, the district court determined that Mir and his coconspirators had sold at least 231.30 grams of cocaine.

The district court correctly could consider more than the twenty-seven grams mentioned in Mir's plea agreement. Under the guidelines, the base offense level can reflect quantities of drugs not specified in the count of conviction if they "were part of the same course of conduct or part of a common scheme or plan as the count of conviction." United States v. Taplette, 872 F.2d 101, 105 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 128, 107 L.Ed.2d 88 (1989); see U.S.S.G. Sec. 1B1.3. Here, the facts as detailed in the PSI established that Mir was involved in a drug conspiracy and that, as part of the conspiracy, he and his codefendants distributed 231.30 grams of cocaine in ten separate transactions. ²

Even a cursory examination of the facts shows that the trial court, if anything, was lenient in calculating Mir's offense level. To begin with, Mir personally delivered to Wade 100.38 grams of cocaine. Moreover, the PSI presented credible evidence that Victor Mir and Luis Cantu worked for defendant Armando Mir, and those two co-defendants were implicated in four deliveries totaling 130.56 grams of cocaine. These two calculations alone support an offense level of 20, even without taking into account the cocaine delivered to Harr by persons directly linked to Mir. Under these circumstances, the trial court did not err in setting Mir's offense level.

Finally, we note that although Mir objected to his PSI at certain points, he offered no rebuttal evidence to refute any of these facts. The district court therefore was free to adopt the facts in the PSI without further inquiry. United States v. Mueller, 902 F.2d 336, 346 (5th Cir.1990). ³ The conclusion that Mir was involved in the distribution of at least 200 grams of cocaine thus is not in error.

III.

Section 3B1.1(a) of the guidelines provides for a four-level upward adjustment "[b]ased on the defendant's role ... [as] an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." The district court assessed this adjustment after finding, based upon the PSI and Harr's testimony, that Mir was an organizer in a complex distribution organization.

We review the district court's fact-finding regarding Mir's status as an organizer only for clear error. See United States v. Rodriguez, 897 F.2d 1324, 1325 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 158 112 L.Ed.2d 124 (1990). Both Harr's testimony and the facts developed in the PSI reveal that Mir was a leader or organizer of a narcotics ring consisting of more than five persons, including Mir's two sons, Victor and Virgilio, his grandson, Felix Orta, and at least three other individuals, i.e., Luis Cantu, Julia Castro Hammond, and Enrique Bernal.

This factual finding is not at issue, however. Mir contends that this information cannot be considered at all in determining his leadership role, as he was convicted under a count alleging that he alone possessed and intended to distribute cocaine. Mir argues that although codefendant Cantu was present when he distributed the twenty-six grams, there was no evidence that Cantu was acting under Mir's direction or that any other participants were involved in that transaction.

We note that this is not the first time we have visited this issue or, for that matter, this very cocaine distribution ring. ⁴ In Barbontin we confronted a drug conspiracy involving at least ten persons. At sentencing, however, the government failed to show that five or more of them were involved in the actual transaction leading to Barbontin's indictment and plea bargain. 907 F.2d at 1497. We thus vacated and remanded for resentencing.

Barbontin established that in this circuit, under section 3B1.1, the government cannot delve into unrelated transactions in an attempt to round up the requisite number of conspirators. We thus held that "for purposes of measuring the size of the enterprise, we conclude that section 3B1.1(a) focuses upon the number of...