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UNITED STATES of America, Appellee, v. Manuel MORENO, Appellant

United States Court of Appeals for the Eighth Circuit2012-06-04No. No. 11-3844
679 F.3d 1003

Summary

Holding. The appellate court affirmed the district court's sentence, finding no clear error in the three-level management-and-supervision enhancement, as Moreno's oversight of Des Moines deliveries and payment collection constituted management responsibility that supported the enhancement even absent direct control over individual participants.

Manuel Moreno participated in a methamphetamine distribution conspiracy from 2002 to 2007, traveling to Des Moines to oversee drug deliveries and collect payments on behalf of the conspiracy's leader. He pleaded guilty to conspiracy to distribute methamphetamine and received a 152-month prison sentence that included a three-level sentencing enhancement based on the district court's finding that he managed or supervised the conspiracy.

Moreno appealed, arguing that the enhancement was improper because he lacked direct control over other participants in the operation. The appellate court rejected this argument, holding that while direct control over other participants is sufficient for such an enhancement, it is not necessary. The court found that the district court properly applied the enhancement based on Moreno's role as the conspiracy leader's representative in Des Moines, where he exercised management responsibility over the conspiracy's local activities and assets.

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Key issues

  • Whether management-and-supervision sentencing enhancement requires direct control over other participants
  • Scope of "manager" and "supervisor" roles under sentencing guidelines
  • Whether oversight of criminal organization's property, assets, or activities warrants enhancement

Procedural posture

Moreno appealed his sentence following a guilty plea to methamphetamine conspiracy, challenging the district court's application of a management-and-supervision sentencing enhancement.

Authorities cited

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Opinion

majority opinion

PER CURIAM.

Between 2002 and 2007, Manuel Moreno participated in a methamphetamine conspiracy. He traveled to Des Moines, Iowa, to monitor meth deliveries and to collect payments for the conspiracy’s leader, Elfego Ignacio Cid. Moreno pled guilty to conspiracy to distribute meth, in violation of 21 U.S.C. §§ 841 (b)(1)(A)(viii) and 846. The district court sentenced Moreno to 152 months’ imprisonment. He appeals the finding that he managed or supervised the conspiracy. This court affirms.

The application of sentencing guidelines is reviewed de novo. United States v. Barker, 556 F.3d 682, 689 (8th Cir.2009). A defendant’s role in an offense is a question of fact, subject to clearly erroneous review. United States v. Johnson, 47 F.3d 272, 277 (8th Cir.1995). Reversal requires a “definite and firm conviction that a mistake has been committed.” United States v. Martinez, 446 F.3d 878, 881 (8th Cir.2006), quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). If the district court chose a permissible view of the evidence, its holding is not clearly erroneous. United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir.2008).

A three-level increase applies if the defendant managed or supervised criminal activity involving five or more participants, or which was otherwise extensive. U.S.S.G. § 3Bl.l(b). The government must prove the enhancement by a preponderance of the evidence. United States v. Gaines, 639 F.3d 423, 427 (8th Cir.2011). This court construes “manager” and “supervisor” broadly. United States v. Erhart, 415 F.3d 965, 973 (8th Cir.2005).

The Sentencing Guidelines list seven factors to distinguish a manager or supervisor from a leader or organizer, including “the degree of control and authority exercised over others.” § 3B1.1 cmt. n. 4; see Gaines, 639 F.3d at 428-29 (evaluating those factors in a § 3Bl.l(b) enhancement). The district court found that Moreno acted as Cid’s “eyes and ears” in Des Moines. While Moreno did not “specifically direet[ ] behavior,” he ensured the operation went according to plan and that the proceeds got back to California. Citing United States v. Plancarte-Vazquez, 450 F.3d 848, 853 (8th Cir.2006), Moreno argues that enhancement requires some control over at least one other participant. See also United States v. Payton, 636 F.3d 1027, 1048 (8th Cir.2011). To the contrary, a defendant’s control over another participant is sufficient but not necessary for a § 3Bl.l(b) enhancement. Gaines, 639 F.3d at 428 n. 4.

The district court did not clearly err in enhancing Moreno’s sentence. One permissible view of the evidence is that he supervised the conspiracy’s Des Moines deliveries and payments. The exercise of “management responsibility over the property, assets, or activities of a criminal organization” may warrant enhancement. § 3B1.1 cmt. n. 2.

The judgment of the district court is affirmed.

. The Honorable James E. Gritzner, Chief Judge, United States District Court for the Southern District of Iowa.