Filed: Dec. 17, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 02-20019 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN BAUTISTA, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-716-1 _ December 13, 2002 Before JOLLY, DUHÉ and WIENER, Circuit Judges. PER CURIAM:* Bautista pled guilty to charges of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute and possession of more than 1
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 02-20019 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN BAUTISTA, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-716-1 _ December 13, 2002 Before JOLLY, DUHÉ and WIENER, Circuit Judges. PER CURIAM:* Bautista pled guilty to charges of conspiracy to possess more than 100 kilograms of marijuana with intent to distribute and possession of more than 10..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-20019
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN BAUTISTA,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-716-1
_________________________________________________________________
December 13, 2002
Before JOLLY, DUHÉ and WIENER, Circuit Judges.
PER CURIAM:*
Bautista pled guilty to charges of conspiracy to possess more
than 100 kilograms of marijuana with intent to distribute and
possession of more than 100 kilograms of marijuana with intent to
distribute under 21 U.S.C. § 841. He was sentenced to serve a 108-
month sentence, which included a two-level enhancement pursuant to
U.S.S.G. § 3B1.1(c), based on Bautista’s role as a “manager or
supervisor” of the conspiracy. Bautista appeals, challenging the
constitutionality of 21 U.S.C. § 841 in the light of Apprendi v.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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New Jersey, 530 U.S. 466 (2000), an argument foreclosed by our
precedent. Bautista also appeals the two-level sentence
enhancement, arguing that he was not a manager or supervisor as
defined by the guidelines. Because the district court’s
determination of Bautista’s role in the conspiracy is not clearly
erroneous, we affirm.
I
Bautista argues, for the first time on appeal, that 21 U.S.C.
§ 841 is facially unconstitutional in the light of Apprendi. In
Apprendi the Supreme Court held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
This court has specifically rejected the argument that Apprendi
rendered 21 U.S.C. § 841 facially unconstitutional. United States
v. Slaughter,
238 F.3d 580, 582 (5th Cir. 2000).
II
Bautista argues that the district court erred when it enhanced
his sentence based on U.S.S.G. § 3B1.1(c) because he was not a
manager or supervisor of any person or persons as required by that
section of the guidelines. We will not disturb a district court’s
findings regarding a defendant’s role in a criminal activity unless
those findings are clearly erroneous. United States v. Parker, 133
F.3d 322, 329 (5th Cir. 1998). A factual finding is not clearly
2
erroneous if it is plausible in the light of the record read as a
whole. United States v. Watson, 966 F.2d 161, 162 (5th Cir. 1992).
Under U.S.S.G. § 3B1.1(c), a defendant’s base offense level
may be enhanced two levels if he was an “organizer, leader,
manager, or supervisor” of one or more participants in any criminal
activity. The defendant must be the organizer or leader of at
least one other participant in the crime and assert control over at
least that one participant. United States v. Jobe, 101 F.3d 1046,
1064 (5th Cir. 1996). The enhancement is not appropriate but an
upward departure is warranted when the defendant is one who “did
not organize, lead, manage or supervise another participant, but
who nevertheless exercised management responsibility over the
property, assets, or activities of a criminal organization.”
U.S.S.G. § 3B1.1, Application Note 2. Because the district court
made an upward adjustment, rather than an upward departure, the
facts must show that Bautista managed or supervised participants
rather than property. United States v. Giraldo,
11 F.3d 21, 23 (5th
Cir. 1997)(citing United States v. Jobe,
101 F.3d 1046 (5th Cir.
1996)).
Bautista argues that there was no evidence that he supervised
or controlled any participants in the crime. He argues that he
only brokered the deal as a middleman between a buyer and a seller,
and that this criminal conduct does not suffice to sentence him as
a manager or supervisor.
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The following facts were adduced during the plea colloquy and
included in the pre-sentence report which was properly adopted by
the district court. United States v. Valencia, 44 F.3d 269, 274
(5th Cir. 1995)(noting that a district court may adopt facts in a
pre-sentence report without further inquiry if they have adequate
evidentiary basis and the defendant does not present rebuttal
evidence.) Bautista met with a confidential informant on August
23, 2001. Bautista negotiated a deal to sell the informant 3,000
pounds of marijuana for $360 per pound, promising to provide a
sample before the sale. Bautista drove the informant to a gas
station where a man named Flores delivered a package containing a
sample of marijuana to Bautista. Bautista gave the sample to the
informant. On August 28, 2001, Bautista and the informant met
again. The informant provided Bautista with keys to a truck in
which the marijuana was to be loaded. The informant promised to
pay Bautista for the marijuana after the marijuana had been loaded
into the truck. Bautista left the scene of the meeting and
returned with a woman. Bautista drove the truck to co-defendant
David Flores’s house and the woman followed in Bautista’s car.
Later that day, Flores drove the truck to an auto shop where he met
Humberto Pena and the two loaded the truck with marijuana.
Bautista called the informant and the two drove to a street corner
where the truck was waiting. The informant was shown the
marijuana. When Bautista went with the informant to get money, he
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was arrested. Based on the facts above, including Bautista’s
negotiation of the entire deal, his promise of a sample and Flores’
delivery of one, and Flores’ subsequent delivery of the marijuana
for which Bautista was to be paid, the district court could have
inferred that Bautista managed or supervised Flores. In the light
of the record as reflected above, the district court’s finding that
Bautista was a manager or supervisor of one or more participants in
the conspiracy is plausible. See United States v. Watson, supra.
The judgment of the district court is therefore
AFFIRMED.
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