U.S. v. Valencia, 94-40063

• Decision Date: 26 January 1995
• Docket Number: No. 94-40063,94-40063
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Jairo VALENCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 269

44 F.3d 269

UNITED STATES of America, Plaintiff-Appellee, v. Jose Jairo VALENCIA, Defendant-Appellant.

No. 94-40063.

United States Court of Appeals, Fifth Circuit.

Jan. 26, 1995.

Katharine Geary (court-appointed), Alexandria, LA, for appellant.

Josette L. Cassiere, Asst. U.S. Atty., Michael D. Skinner, U.S. Atty., Shreveport, LA, for appellee.

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

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Jose Jairo Valencia pleaded guilty to conspiracy to distribute cocaine, count one of an eleven-count indictment which charged Valencia and his nine codefendants. He appeals his 81-month sentence of imprisonment, asserting that the district court erred by increasing his offense level by four levels pursuant to U.S.S.G. Sec. 3B1.1(a) and by attributing to him all the cocaine found in his apartment when he was arrested. We affirm his sentence.

FACTS

On August 19, 1992, a traffic stop in Allen Parish, Louisiana, revealed one and one-quarter kilos of cocaine in a vehicle with three passengers, all named as co-conspirators in count one. One of the passengers, R.B. Mills, revealed that the cocaine was supplied by Valencia and that Valencia previously had provided approximately four kilos of cocaine, and that all the cocaine went to an Alexandria, Louisiana drug ring headed by Aaron Bruce Williams (hereinafter referred to as "the Williams organization", or "the Williams group"). Valencia admitted that he had supplied more than five kilos of cocaine to the Williams group in Alexandria. Valencia cooperated with law enforcement agents by wearing a wire when receiving payment for prior deliveries and talking with one of the leaders of the Williams organization about future deals.

The presentence investigation report's (PSR) description of the offense explained the role Mills played in uncovering the operations of the Williams organization. The PSR lists Valencia and four other individuals as suppliers to the Williams organization, and states that, incident to Valencia's arrest, Houston law enforcement discovered approximately four kilos of cocaine and 8.5 grams of cocaine base in Valencia's apartment.

At sentencing, the district court found Valencia accountable for all the cocaine found in his apartment. The district court also found that Valencia was an organizer of the criminal enterprise and, pursuant to U.S.S.G. Sec. 3B1.1(a), increased the offense level by four. The court noted that Valencia was not "uniquely situated," but because of his communication with the other conspirators, he promoted the sale, use, and distribution of cocaine. After addressing all the objections to the PSR, the district court calculated an offense level of 33, with an associated guideline range of 168-210 months imprisonment. The district court then granted the government's motion for a downward departure from the guidelines (due to Valencia's substantial assistance) and reduced his offense level to 26. This resulted in a new guideline range of 78-97 months imprisonment. The district court sentenced Valencia within this new range to 81 months imprisonment.

Valencia challenges the increase in his offense level which arose from the district court's finding that he was an organizer of the criminal scheme. He also challenges the amount attributed to him from the drugs found in his apartment. Finding no clear error in the district court's factual findings, and no error in the district court's application of the guidelines, we affirm.

DISCUSSION

Sec. 3B1.1 ORGANIZER?

In his challenge to the Sec. 3B1.1 finding, Valencia argues that, although he supplied large quantities of cocaine to the Williams organization, his role in the offense did not Valencia asserts in brief that the district court improperly applied Sec. 3B1.1. However, the determination of whether a defendant is a Sec. 3B1.1 leader or organizer is a factual determination. United States v. Mejia-Orosco, 867 F.2d 216, 220 (5th Cir.1989), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). The role of a defendant--whether he is a leader or organizer, or minimal or minor participant, is among the " 'sophisticated factual determinations' a district court makes which 'depend upon an assessment of the broad context of the crime.' Accordingly, such findings 'enjoy the protection of the "clearly erroneous" standard.' " United States v. Hatchett, 923 F.2d 369, 376 (5th Cir.1991), quoting United States v. Mejia-Orosco, 867 F.2d at 221. See also, United States v. Buenrostro, 868 F.2d 135, 137 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990).

meet the factors that the guideline commentary directs the court to use in making its determination of who is a leader or organizer.

We review challenges to factual findings under the guidelines for clear error. United States v. Mackay, 33 F.3d 489, 496 (5th Cir.1994); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.1994). Thus, we will disturb a district court's factual finding regarding a defendant's role in criminal activity only if it is clearly erroneous. United States v. Barreto, 871 F.2d 511, 512 (5th Cir.1989); United States v. Puig-Infante, 19 F.3d 929, 944 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 180, 130 L.Ed.2d 115 (1994). A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole. Puig-Infante, id. at 942; United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir.1992). See also, United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir.1990), cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990) ("While any information with 'sufficient indicia of reliability to support its probable accuracy' may be considered in making the sentencing factfindings, ... there must be 'an acceptable evidential basis' for the court's factfindings at the sentencing hearing." (citations omitted)).

The sentencing guidelines provide a four-level increase in the offense level if the defendant was an "organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. Sec. 3B1.1(a). Section 3B1.1 was intended to be applied "only if a defendant was an organizer or leader of at least one other person who was criminally culpable in, though not necessarily convicted for, the endeavor." United States v. Gross, 26 F.3d 552, 554-55 (5th Cir.1994).

The instant sentencing judge is the same district judge who presided in the October 27, 1993--November 2, 1993 trial of Aaron Bruce Williams, Arthur Williams, and Garland Andrew Stewart, three of Valencia's nine codefendants. Valencia testified in that trial, as a government witness, about his role and his knowledge of the role of his co-conspirators. ¹ At Valencia's January 7, 1994 sentencing, the district judge noted his recollection of "all the testimony" and stated that "[Valencia] had dialogue and connection with the other people in this transaction so that he was promoting not only sale but use and distribution."

Valencia contends that the district court improperly applied Sec. 3B1.1(a) because his role as supplier is not the equivalent to being a "leader or organizer". ² He does not challenge the district court's reliance on testimony from the trial of codefendants. "In a plea bargain case, this court will not review challenges to the factual basis of a guideline's applicability which has not been preserved by objection in the district court." United States v. Mourning, 914 F.2d 699, 704 (5th It is plausible, in light of the record read as a whole, that Valencia was more than just a supplier, and that Valencia had a dialogue and connection with his co-conspirators from which the district court could conclude that he was an organizer within the meaning of Sec. 3B1.1. The record supports this finding via the guilty plea transcript's description of Mills' role and the connection between Mills and Valencia, and by the subsequent observation recorded in the reasons for detaining one of Valencia's codefendants. ⁴ Although the quantity of cocaine is a nondispositive factor in the Sec. 3B1.1 determination, it is a factor nonetheless. When this factor is combined with the other information upon which the district court relied, we find no clear error in the Sec. 3B1.1 finding, even though the district court failed to specifically articulate the factual basis for its determination. As we stated in Mejia-Orosco, 867 F.2d at 221,

                Cir.1990). 3  Despite Valencia's argument of "improper application", as we have noted, at issue is the district court's factual determination about Valencia's role in the criminal enterprise.  Absent clear error in this determination, the district court's application of Sec. 3B1.1 is proper
                

We will affirm sentences imposed by district judges who make factual findings that are not clearly erroneous, and who apply the guidelines to those findings. In such cases, the sentencing judge need not offer further reasons justifying the sentence....

Implicit in what we have said is the conclusion that the district court's simple statement that the defendant is a "manager" or "leader" is a finding of fact. Building on the lesson of Wainwright v. Witt, 105 S.Ct. at 855, [83 L.Ed.2d 841 (1985) ], we "decline to require the judge to write out" more specific findings about the defendant. We recognize that so formal a requirement would interfere with the smooth operation of the sentencing hearing. In some instances, what is necessarily a "judgment call" may not be susceptible of particularization. Nonetheless, we urge district courts to clarify their ultimate factual findings by more specific findings when possible.

Because we find no clear error in the factual finding that Valencia was an organizer, it follows that the district court properly applied U.S.S.G. Sec. 3B1.1(a) to this...