U.S. v. Uscanga-Mora

• Decision Date: 24 April 2009
• Docket Number: No. 07-4248.,07-4248.
• Citation: 562 F.3d 1289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcos USCANGA-MORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

562 F.3d 1289

UNITED STATES of America, Plaintiff-Appellee, v. Marcos USCANGA-MORA, Defendant-Appellant.

No. 07-4248.

United States Court of Appeals, Tenth Circuit.

April 24, 2009.

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before HENRY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and GORSUCH, Circuit Judge.

GORSUCH, Circuit Judge.

Marcos Uscanga-Mora appeals the district court's imposition of a two-level sentence enhancement under U.S. Sentencing Guideline § 3B1.1(c). He argues that the district court failed to explain adequately its reasons for imposing the enhancement. Alternatively, he submits there is simply insufficient evidence supporting the enhancement. Because Mr. Uscanga-Mora never objected in the district court to the adequacy of the court's explanation, our review of his first argument is limited to plain error. Discerning none, and faced with ample evidence to support the district court's sentence, we affirm.

I

After Mr. Uscanga-Mora pled guilty to possession with intent to distribute at least 500 grams of methamphetamine, the probation office prepared a presentence report. The government objected to the report, and sought an additional two-level enhancement of the applicable offense level pursuant to U.S.S.G. § 3B1.1(c). Section 3B1.1(c) provides for a two level enhancement "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity" involving fewer than five participants. Id. In support of its request, the government asserted that certain "[t]ape recordings made of conversations between defendant and others," in particular Mr. Uscanga-Mora's wife, Vere Uscanga-Mora, and cousin, Jesus Uscanga-Cano, established that Mr. Uscanga-Mora qualified for the enhancement. Vol. I, Doc. 77 at 1-2. By way of example, the government cited the following conversations:

... [A]t 1:42 p.m. on June 25, 2006, Marcos Uscanga[-Mora] spoke with his wife Vere and instructed her to give money to an associate of Gabino Barajas-Torres's. Marcos stated that the money was hidden behind the television set. Vere asked if she was to give the man all of the money and Marcos said yes. He then instructed Vere to count the money again.

During another call on June 25, 2006, at 4:50 p.m., Marcos Uscanga[-Mora] called his cousin Jesus and told Jesus that "Brad" didn't have the money. Jesus told Marcos that Brad said he did have the money and Marcos replied that if Brad didn't have the money, they would not be doing business. Jesus told Marcos that when he saw Brad he would tell him not to play games. Jesus then acknowledged that the business was not his, it was Marcos's and he would tell Brad. Numerous other calls were intercepted between Marcos Uscanga[-Mora] and his cousin Jesus. In those calls Marcos Uscanga[-Mora] is often heard giving Jesus instructions regarding deliveries of narcotics or other related business matters.

Id. at 2.

In the end, the probation officer concurred with the government's view and modified the presentence report to reflect a two-level increase under U.S.S.G. § 3B1.1(c). The ultimate resulting offense level was 37; when combined with Mr. Uscanga-Mora's criminal history category of I, the Guidelines yielded a recommended sentencing range of 210 to 262 months.

At the sentencing hearing before the district court, counsel for Mr. Uscanga-Mora objected to the § 3B1.1(c) enhancement. Counsel argued that the content of the phone conversations cited by the government did not prove that Mr. Uscanga-Mora was an organizer or leader of criminal activity. Vol. IV, Doc. 141 at 4. To this, the court replied that "from my reading of it, it seems to me that he was more the individual that was directing the affairs." Id. Counsel persisted, contending that Mr. Uscanga-Mora and his cousin, Mr. Uscanga-Cano, had an "equal role and participation" in the drug scheme, and that "[t]he person supplying the drugs and giving them the drugs, this gentleman, Gabino Barajas-Torres, [was] the organizer of this group and not my client." Id. at 5. The government then responded that:

Mr. Gabino Barajas-Torres was a supplier to Marcos Uscanga[-Mora]. Marcos Uscanga[-Mora], the wiretap clearly reveals, directed his cousin, Jesus, and I do have the case agent here today, and I am familiar with many of the tape recordings, but the case agents indicated that for all intents and purposes Jesus Uscanga-Cano was a user of drugs and was quite unreliable. A number of tape recordings that have been intercepted have Marcos Uscanga[-Mora] talking about his unreliability, but he did direct Jesus, and he also directed his wife. Under the guidelines, Your Honor, that does give him the two-level enhancement. We are not saying that he is a kingpin, but he certainly directed others in this operation, and he was in charge of this operation.

Id. at 5-6.

The district court expressed its agreement with this analysis, and then asked the defense counsel if he had any "more information on the record." Id. at 6. Defense counsel answered that he had received the tapes, and that "[f]rom the report before the Court and the presentence recommendation, you know, that would be the evidence in front of Your Honor as to what their respective levels were." Id. He also added, as argument against imposition of the enhancement, that "[y]ou can ask someone else to do something on your behalf ... [and] that does not necessarily indicate that he is an organizer or a director .... There are various roles between equals, Your Honor, and I would submit that that is what we're talking about here now." Id. at 6-7. At this point, the government stepped in to add "one other fact," namely that Gabino Barajas-Torres "did not talk to Jesus Uscanga-Cano, he talked to Marcos Uscanga[-Mora]." Id. at 7.

At the conclusion of this discussion, the district court found the two-level enhancement warranted by the evidence, stating that

I think that is sufficient, counsel, to determine that the two-level enhancement for his role in the offense is sufficient to determine — let me turn to that paragraph. I think pursuant to U.S.S.G. Section 3B 1.1(c) that there is sufficient evidence in the record to establish that the defendant was either an organizer, leader, manager or supervisor in this activity. Accordingly, the Court finds that the two-level enhancement for that role is appropriate.

Id. The court proceeded to calculate Mr. Uscanga-Mora's total offense level to be 37, and asked counsel if there was "[a]nything else." Id. at 7-8. To this both counsel replied "No." Id. at 8. Later in the hearing, the court again asked if there was "[a]ny legal reason why sentence should not go forward at this time." Id. at 11. Again, counsel said no. Id. The court then sentenced Mr. Uscanga-Mora to 210 months, at the bottom of the recommended Guidelines range. Id. at 12.

II

On appeal, Mr. Uscanga-Mora argues primarily that the district court did not adequately explain its reasons for imposing the § 3B1.1(c) sentencing enhancement. Alternatively, he submits, insufficient evidence exists in the record to support the enhancement. We address each contention in turn.

A

Our review of Mr. Uscanga-Mora's first argument is shaped by the posture of his appeal. Before the district court, counsel for Mr. Uscanga-Mora vigorously disputed the government's substantive claim that sufficient evidence existed to support an enhancement under § 3B1.1(c). But at no point did he raise any concern with the procedural adequacy of the district court's explanation of its decision to impose that enhancement. To the contrary, after the district court finished explaining its analysis of the § 3B1.1(c) issue, it asked counsel whether they had "anything else" to add, or whether there was "[a]ny legal reason why sentence should not go forward." Vol. IV, Doc. 141 at 7-8, 11. To both questions, defense counsel said no. Id. at 8, 11. Because Mr. Uscanga-Mora did not alert the district court that he considered its statement of reasons for issuing the enhancement inadequate, his claim for relief on this procedural ground has been forfeited. Reviewing his claim for plain error, we discern none.

That our review should be for plain error is compelled both by our precedent and sound reason. Consider first our precedent. The requirement that the district court articulate its reasons for imposing a § 3B1.1 enhancement stems at least in part, we have said, from Fed.R.Crim.P. 32(i)(3)(B), a rule requiring the district court "for any disputed portion of the presentence report or other controverted matter [t]o rule on the dispute." United States v. Pena-Hermosillo, 522 F.3d 1108, 1112-13 (2008). It also surely stems in part from 18 U.S.C. § 3553(c)'s requirement that a sentence be accompanied by a statement of reasons. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007) (describing value of § 3553(c)'s statement of reasons requirement). But whether the duty arises from Rule 32, § 3553(c), or some other source, we have consistently held plain error review obtains when counsel fails to render a contemporaneous objection to the procedural adequacy of a district court's statement of reasons at sentencing. See, e.g., United States v. Cook, 550 F.3d 1292, 1298 (10th Cir.2008) (Rule 32); United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir. 2008) (§ 3553(c)); United States v. Romero, 491 F.3d 1173, 1177 (10th Cir.2007) (same). Moreover, at least a pair of our sister circuits and two of our unpublished opinions have already applied plain error review in the § 3B1.1 context. See, e.g., United States v. Molina, 356 F.3d 269, 277 (2d Cir.2004); United States v. Rhynes, 196 F.3d 207, 241 (4th Cir.1999), ...