U.S. v. Plancarte-Vazquez, 05-2286.

• Decision Date: 27 June 2006
• Docket Number: No. 05-2286.,05-2286.
• Citation: 450 F.3d 848
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isidro PLANCARTE-VAZQUEZ, also known as Isidro Plancarte-Rueda, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Manuel Plancarte, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

450 F.3d 848

UNITED STATES of America, Plaintiff-Appellee, v. Isidro PLANCARTE-VAZQUEZ, also known as Isidro Plancarte-Rueda, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Manuel Plancarte, Defendant-Appellant.

No. 05-2286.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2006.

Filed: June 27, 2006.

COPYRIGHT MATERIAL OMITTED

Alexander M. Esteves, argued, Sioux City, IA, for appellant Isidro Plancarte-Vazquez.

Patrick T. Parry, argued, Sioux City, IA, for appellant Manuel Plancarte.

Counsel who presented argument on behalf of the appellee was AUSA Daniel C. Tvedt, Cedar Rapids, Iowa.

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Manuel Plancarte and his son, Isidro Plancarte-Vazquez, pled guilty to conspiracy to distribute 15,000 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 and possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The district court sentenced Plancarte to 275 months' imprisonment and sentenced Plancarte-Vazquez to 168 months' imprisonment. Both appeal their sentences. We affirm the district court's judgment as to Plancarte, but vacate the judgment and remand for resentencing as to Plancarte-Vazquez.

Based on information that an individual named Lori Perez was involved in the illegal sale of narcotics, officers executed a search warrant at her residence in Sioux City, Iowa, where they arrested her after uncovering drug paraphernalia and a small amount of methamphetamine. During an interview following her arrest, Perez told officers that Isidro Plancarte-Vazquez and his father, Manuel Plancarte, were the sources of the methamphetamine and claimed that she had purchased approximately 50 pounds (22,680 grams) of methamphetamine and 15 to 20 pounds (5,443.2 to 9,072 grams) of marijuana from them.

Following an investigation involving several controlled buys and a traffic stop, Plancarte and Plancarte-Vazquez were indicted and charged with conspiracy to distribute 15,000 grams or more of methamphetamine and possession with intent to distribute 50 grams or more of methamphetamine. The defendants pled guilty to both counts of the indictment, and the matter proceeded to sentencing, where the parties argued four guideline issues: (1) drug quantity; (2) offense role; (3) enhancement for use or attempted use of a minor; and (4) acceptance of responsibility.

At sentencing, the government presented three witnesses: Steven Hamel, Tony Wingert, and Lori Perez. Hamel was Lori Perez's former boyfriend, and he testified that from the spring of 2003 until Perez's arrest on October 21, 2003, he saw Plancarte-Vazquez selling about 10 pounds of methamphetamine to Perez and witnessed Plancarte selling about five pounds of methamphetamine to Perez. During these transactions, which would take place at Perez or Plancarte's house, Perez would hand the money to Plancarte-Vazquez, who would count it; then Plancarte would take the package of drugs out of the front of his pants and hand it to Perez or to Plancarte-Vazquez, who would hand the package to Perez.

Perez, who pled guilty to conspiracy to distribute 500 grams or more of methamphetamine, was the government's main witness at sentencing. She testified that it was her belief that Plancarte was in control of the business. She testified that Plancarte-Vazquez would have to ask his father for permission to sell drugs to her. Also, when Plancarte went back to Mexico, he would often call Plancarte-Vazquez to check on him, and on occasion would send another son from Mexico to Sioux City to watch over the operation. Occasionally, Plancarte would cut his son off from selling methamphetamine by sending him back to Mexico, or would get upset with him and chastise him for mismanaging the business. Perez also testified that she was aware that other people worked for Plancarte because at times she would accompany him and Plancarte-Vazquez to other houses in order to obtain methamphetamine, or she would have to go into another room when other people arrived during her methamphetamine transactions with Plancarte. Perez also testified that Plancarte would tell her how to make more money on the methamphetamine he was selling to her and would warn her about having a lot of people coming to her house to buy methamphetamine.

Wingert, a deputy sheriff with the Woodbury County Sheriff's Department, testified at sentencing about the investigation into the activities of Plancarte and his son. Wingert testified that, at least six months before the defendants' arrest, Perez had identified both defendants and admitted to being involved in buying more than 50 pounds of methamphetamine with them, an amount consistent with that Perez testified to at sentencing. In addition, Wingert relayed information he had received from an informant during the course of his investigation, who claimed to have received approximately 10 pounds of methamphetamine from the defendants and who corroborated other information provided by Perez.

Based on the evidence presented at sentencing, the district court found Plancarte responsible for at least 30,000 kilograms of marijuana equivalent, for a base offense level of 38.¹ The court imposed a three-level enhancement for Plancarte's role as a manager or supervisor of a criminal activity involving five or more participants, see U.S.S.G. § 3B1.1(b), and a two-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), for an adjusted offense level of 39. The court rejected the government's request for an enhancement for the use or attempted use of a minor to commit the offense, finding the record to be unclear regarding his direction or use of his son, Plancarte-Vazquez, during the early years of the conspiracy when the uncle was more involved than Plancarte. With a criminal history category of I, the advisory guidelines sentencing range was from 262 to 327 months' imprisonment. The court sentenced Plancarte to 275 months' imprisonment on each count, to be served concurrently, five years of supervised release on each count, to be served concurrently, and a $200 special assessment.

The district court found Plancarte-Vazquez responsible for "at least 10,000 kilograms of marijuana equivalent," but then found that this amount called for an offense level of 38, the same as that given to Plancarte based on a drug quantity calculation of 30,000 kilograms. After receiving a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(b) and with a criminal history category of I, the guidelines sentencing range for Plancarte-Vazquez was between 168 and 210 months' imprisonment. The district court sentenced him to 168 months' imprisonment on each count, to be served concurrently, five years of supervised release on each count, to be served concurrently, and a special assessment of $200.

I.

Plancarte first challenges the district court's drug quantity calculation, which we review for clear error. United States v. Vinton, 429 F.3d 811, 816-17 (8th Cir.2005). "The government bears the burden of proving drug quantity by a preponderance of the evidence." United States v. Marshall, 411 F.3d 891, 894-95 (8th Cir.2005).

Plancarte argues that the quantity of drugs attributed to him was clearly erroneous because the government's main witness on that issue, co-conspirator Lori Perez, provided uncertain and inconsistent estimates of the quantities of drugs involved in the conspiracy. 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. See United States v. Mickelson, 378 F.3d 810, 821-22 (8th Cir.2004); U.S.S.G. § 1B1.3(a)(1)(B). It is well-established that the testimony of co-conspirators may be sufficiently reliable evidence upon which the court may base its drug quantity calculation for sentencing purposes. Mickelson, 378 F.3d at 821. Moreover, "[a] district court's assessment of a witness's credibility is almost never clear error given that court's comparative advantage at evaluating credibility." United States v. Killingsworth, 413 F.3d 760, 763 (8th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 633, 163 L.Ed.2d 513 (2005); see also Mickelson, 378 F.3d at 822 ("sentencing court's assessment of the credibility of a witness is nearly unreviewable.") (quotation marks omitted).

Here, the district court based its drug quantity calculation on Perez's testimony that Plancarte and his co-conspirators had supplied her with more than 50 pounds (22,680 grams) of methamphetamine and at least 15 pounds of marijuana (5,443.2 grams) over the course of the conspiracy. The presentence report converted these amounts into 45,365.44 kilograms of marijuana equivalent. See U.S.S.G. § 2D1.1, comment. (n. 10). While the court acknowledged "some level of uncertainty and inconsistency" with regard to Perez's testimony, the court stated that it could find from the testimony that the quantity of drugs involved substantially exceeded the 30,000 kilogram threshold required to reach a base offense level of 38, even if it was insufficient for the court to find the much greater quantity recommended in presentence report. See U.S.S.G. § 2D1.1(c)(1). The court did not commit clear error by crediting Perez's testimony, and that testimony provided sufficient support for the court's drug quantity calculation.

Next, Plancarte argues that there was insufficient evidence to warrant the role enhancement he received for being a supervisor or manager of a drug trafficking conspiracy. The Sentencing Guidelines provide for a three-level enhancement "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or...