U.S. v. Rodriguez, 90-5562

• Decision Date: 19 February 1991
• Docket Number: No. 90-5562,90-5562
• Citation: 925 F.2d 107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Armando RODRIGUEZ, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 107

925 F.2d 107

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

No. 90-5562

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Feb. 19, 1991.

George Scharmen, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Richard F. Durbin, Asst. U.S. Attys., 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 KING, GARWOOD and DUHE, Circuit Judges.

KING, Circuit Judge:

Jose Armando Rodriguez (Rodriguez) appeals his sentence for violations of 31 U.S.C. Sec. 5324. Rodriguez contends that the district court erred by its application of the United States Sentencing Guidelines (Guidelines or U.S.S.G.). Finding no merit to Rodriguez's contentions, we affirm the sentence imposed by the district court.

I.

On October 4, 1989 Rodriguez was indicted on two counts of structuring transactions to evade reporting requirements in violation of 31 U.S.C. Secs. 5324(1) and 5324(3). ¹ Count One alleged that on June 6, 1989, Rodriguez engaged in five transactions, each in an amount less than $10,000, aggregating $24,000, for the purpose of evading Sec. 5313(a)'s reporting requirements. Count Two alleged that on July 5, 1989, Rodriguez attempted to cause a domestic financial institution, Frost National Bank (Frost Bank) in San Antonio, Texas, to fail to file a CTR in connection with a $25,400 transaction.

Rodriguez agreed to plead guilty to both counts of the indictment. In return, the government agreed not to prosecute Rodriguez for certain other violations. ² In addition, the government agreed not to oppose Rodriguez's request for a reduction in the applicable Guidelines offense level to reflect his acceptance of responsibility as provided by U.S.S.G. Sec. 3E1.1. Rodriguez stipulated that, for purposes of calculating his sentence under U.S.S.G. Sec. 2S1.3(b), the funds involved in the charged offense were "criminally derived property." Rodriguez entered his guilty plea to both counts on February 1, 1990.

On April 13, 1990, the district court sentenced Rodriguez to two concurrent terms of 37 months in prison, followed by three years of supervised release, a $5,000 fine, and mandatory assessments totalling $100. In determining the length of Rodriguez's sentence, the district court began with a base offense level of 13 for violation of 31 U.S.C. Sec. 5324, as provided by U.S.S.G. Sec. 2S1.3(a)(1)(A). The base level was adjusted upward by five levels because of Rodriguez's knowledge that the funds were criminally derived property. In addition, Rodriguez received a one level upward adjustment because the court found that the total value of funds involved in the currency transactions exceeded $100,000, and a two level upward adjustment based on Rodriguez's role as a "organizer, leader, manager, or supervisor" in carrying out the transactions pursuant to U.S.S.G. Sec. 3B1.1(c). ³ The district court reduced the computation by two levels, crediting Rodriguez for accepting responsibility for his conduct. Finding the total offense level to be 19 and the criminal history score to be category I, the district court sentenced Rodriguez to a term of 37 months in prison.

II.

On appeal, Rodriguez challenges the district court's application of the Guidelines. Specifically, Rodriguez challenges the district court's two level upward adjustment for Rodriguez's alleged role as a supervisor, and the one level upward adjustment because the value of the funds exceeded $100,000. In addition, Rodriguez alleges that the government violated the plea bargain agreement and seeks specific enforcement of the agreement. In examining a challenge to a sentence based on the Guidelines, we must accept the factual findings of the district court unless they are clearly erroneous, but we fully review its application of the Guidelines for errors of law. 18 U.S.C. Sec. 3742(e); United States v. Barbontin, 907 F.2d 1494, 1497 (5th Cir.1990); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989). We examine each of Rodriguez's allegations in turn.

A. Two Level Increase for Defendant's Role

Rodriguez challenges the district court's two level upward adjustment for Rodriguez's role in the offense pursuant to Sec. 3B1.1(c). That section provides:

Based on the defendant's role in the offense, increase the offense level as follows:

. . . . .

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity ... increase by 2 levels.

Rodriguez argues that this aggravating factor may only be applied "if the defendant maintained a leadership role in the transaction on which his conviction is based." United States v. Mourning, 914 F.2d 699, 705 (5th Cir.1990) (citing United States v. Barbontin, 907 F.2d 1494, 1498 (5th Cir.1990)). Thus, for this adjustment to be properly applied, Rodriguez argues, he must have played a leadership role during the transactions for which he was convicted--those on June 6, 1989 or July 5, 1989. The district court during the sentencing hearing heard evidence that Rodriguez had directed two other persons in conducting currency transactions on January 25, 1989, February 10, 1989, and February 15, 1989. Rodriguez argues that this is not sufficient to support this increase under Sec. 3B1.1(c).

In Barbontin, this court followed cases from the District of Columbia and Second Circuits which have held that, because Sec. 3B1.1 specifically states that this adjustment is to be "[b]ased on the defendant's role in the offense," Sec. 1B1.1's use of relevant conduct to support an adjustment does not apply. See United States v. Williams, 891 F.2d 921, 924-26 (D.C.Cir.1989); United States v. Lanese, 890 F.2d 1284, 1293-94 (2d Cir.1989). Therefore, the Barbontin court held that for purposes of measuring the size of the enterprise under Sec. 3B1.1, the adjustment is "anchored to the transaction leading to the conviction." 907 F.2d at 1498. This analysis was followed by this court in Mourning and United States v. Alfaro, 919 F.2d 962, 967 (5th Cir.1990) (Sec. 3B1.1(b) applies only if other individuals were "involved in the specific offense to which the defendant pleaded guilty. We do not require each 'participant' to have committed each element of the offense; rather, we require each of the participants to play some role in bringing about the specific offense charged.").

A second line of cases in this circuit ignored this method of analysis and applied Sec. 1B1.1's use of relevant conduct in determining adjustments. See United States v. Manthei, 913 F.2d 1130, 1133-37 (5th Cir.1990). In Manthei, the court held that "the 'offense' for Sec. 3B1.1 purposes includes 'criminal activity' greater in scope than the exact, or more limited, activity compromising the elements of the offense charged." Id. at 1135. The court determined that "[t]he offense of conviction involved the last link of a continuous chain of transaction in manufacturing, distributing, and retailing amphetamines" and allowed these operations to be considered in an Sec. 3B1.1 upward adjustment for Manthei's conviction for one count of distributing two ounces of amphetamine. Id. at 1137. ⁴

The government takes the position, with considerable candor, that the court's holding in Barbontin cannot be reconciled with the holding in Manthei. The government argues that Barbontin misapplies the Guidelines by ignoring U.S.S.G. Sec. 1B1.3(a)(2). Fortunately, however, we need not resolve this conflict because we now have the benefit of the fact that Barbontin has been revisited. United States v. Mir, 919 F.2d 940 (5th Cir.1990).

In Mir, ⁵ the court expanded on Manthei and determined, based on clarifying amendments to the Guidelines, that Sec. 1B1.3's discussion of relevant conduct should be applied to an adjustment under Sec. 3B1.1. In sentencing Mir for one count of possession of cocaine with intent to distribute, the district court considered separate distributions by five persons allegedly controlled by Mir in making an upward adjustment for his leadership role under Sec. 3B1.1(a). This court affirmed, narrowly construing Barbontin and determining that Barbontin did not hold that "a trial court must don blinders and look solely to the narrowest possible offense charged when evaluating whether an upward adjustment is warranted under the guidelines." Id. at 944. Rather, in Mir we determined that Barbontin 's "transaction leading to the conviction" was outlined by the "contours of the underlying scheme itself" rather than merely of "the offense charged." Id. at 945. Thus, the sentencing court, in making an adjustment under Sec. 3B1.1, may "consider all conduct linked to the transaction [as defined above], even if it falls outside the four corners of the conviction itself." Id. at 946. ⁶

Turning to the Guidelines themselves, after the base offense level is determined by reference to Chapter Two of the Guidelines and any other adjustments required by that chapter are made, the court must look to further possible adjustments in Chapter Three. In this case, Sec. 3B1.1 allows an upward adjustment for "aggravating role." ⁷

In determining which subsection of Sec. 3B1.1 is applicable, the court must turn to Chapter One to assist in this application. ⁸ In this case, Sec. 1B1.3 informs the court as to what relevant conduct is to be included in analysis of sections in Chapter Two and Chapter Three. ⁹ Section 1B1.3(a)(1) states that "solely with respect to offenses of a character for which Sec. 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction [should be considered in determining adjustments in Chapter Three]." (emphasis added).

In this case, Sec. 2S1.3 (Failure to Report Monetary Transactions) is specifically included in Sec. 3D1.2. ¹⁰ Thus, we may include in our examination...