EBEL, Circuit Judge.
Defendant-Appellant Ernest Marquez challenges the two-level sentence enhancement imposed under United States Sentencing Guideline § 3B1.1(c) for his role as an organizer, leader, manager, or supervisor in criminal activity. We affirm.
A jury convicted Marquez of three drug charges, including, as relevant to this appeal, possession with intent to distribute fifty grams or more of methamphetamine ("meth") in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The testimony and evidence at trial showed that Marquez obtained the meth in question by arranging for two women — Veronica Hernandez and Belinda Galvan — to drive from Las Cruces, New Mexico, to the vicinity of Tucson, Arizona, exchange money he had provided them for a brick of meth, and deliver the meth to him back in Las Cruces.
Specifically, Hernandez testified that Marquez asked her to go to Arizona with Galvan and "pick something up" for him. Supp. R. vol. VI at 106. Hernandez agreed that she "should have known" that Marquez was referring to drugs.
In addition, Hernandez and Scott Wetherholt — a drug dealer who often bought meth from Marquez — testified about a series of phone calls and text messages made by Marquez regarding the trip. Marquez discussed with Wetherholt his plans to buy one pound of meth from Arizona for $3000. The morning of Hernandez's trip, Marquez sent a series of text messages to Wetherholt attempting to raise funds for the purchase. Around noon that day, Marquez called the supplier in Arizona from whom he had arranged to purchase the meth. That same supplier had provided Hernandez
That afternoon, Marquez and Hernandez discussed her upcoming trip to Tucson. Shortly thereafter, Hernandez called Marquez to tell him that she was leaving to pick up Galvan in her car. That evening, Marquez told Hernandez that he was "getting the rest of the money together" so that she and Galvan could leave for Tucson.
Later that night, Galvan called Marquez to tell him that on the way to Arizona she and Hernandez had been stopped at a Border Patrol checkpoint. Marquez asked if Hernandez's car had been searched. Although it had been searched, the Border Patrol agents had allowed the women to keep the $2300 they were transporting. Marquez told the women that they should take a different route on their return trip to Las Cruces, presumably to avoid further Border Patrol checkpoints.
In Arizona, Hernandez and Galvan met with the supplier, who gave them a container holding a one-pound brick of meth. Hernandez and Galvan drove the meth back to Las Cruces, dropped it off at Hernandez's apartment, and then drove to meet Marquez at his home. On their way, they stopped at a fast-food restaurant because Marquez had told them to buy him something to eat. At the meeting, Marquez and the two women discussed what had happened during the trip. After the meeting, Galvan returned to Hernandez's apartment and retrieved the brick of meth to deliver to Marquez at his home.
At sentencing, the government requested a two-level enhancement pursuant to Sentencing Guideline § 3B1.1(c) for Marquez's role as an organizer, leader, manager, or supervisor of the two women couriers who purchased and delivered the meth. After hearing argument on the matter, the district court ruled
Supp. R. vol. VIII at 15-16. Marquez's counsel did not object to the procedural adequacy of that explanation at the time. The district court then proceeded to impose a below-Guidelines sentence of 130 months. Before adjourning the hearing, the district court inquired whether either counsel had "[a]nything else this morning?" to discuss.
On appeal, Marquez challenges the procedural reasonableness of his § 3B1.1 enhancement. He argues, first, that the district court did not clearly articulate the reasons for imposing the enhancement, and, second, that the enhancement is not supported by sufficient evidence. He cannot prevail on either ground.
Because Marquez's counsel did not raise a procedural objection at the sentencing hearing, his procedural challenge is reviewed for plain error.
As to the first two prongs, it is well-settled that a district court "`must make specific findings and advance a factual basis to support an enhancement under U.S.S.G. § 3B1.1.'"
In this case, the district court put forth no factual basis or reasoning for enhancing Marquez's sentence pursuant to § 3B1.1, but rather offered only the conclusory statement that "I think that there is significant evidence for me to find that Mr. Marquez was, in fact, a leader/organizer." Supp. Rec. vol. VIII at 15-16. Under our caselaw, that was error, and it was plain.
As to the third prong, "[t]o show that an error affected his substantial rights, Mr. [Marquez] must establish a reasonable probability that, but for the error claimed, the result of the proceeding would have been different."
A defendant such as Marquez qualifies for a two-level enhancement under
The evidence and testimony at trial showed that Marquez orchestrated the sale and transfer of one pound of meth from Arizona to New Mexico: He arranged the sale with his supplier in Arizona; he collected the money for the sale; he recruited Hernandez to drive her car to Arizona to pick up the meth; he assured his supplier that he was "going to get the girls ready" for the trip, and Hernandez explained that, by "the girls" he meant her and Galvan; he maintained phone contact with Hernandez and Galvan during their trip, including advising them how to avoid further Border Patrol searches; he debriefed Hernandez and Galvan at his home immediately after they returned from their trip; and he later had Galvan deliver the meth to him at his home. Supp. R. vol. VI at 75.
Although the district court did not make factual findings at the sentencing hearing, it did appropriately focus on the facts pertaining to the two woman couriers as the basis for the § 3B1.1 enhancement.
Accordingly, we conclude that Marquez's § 3B1.1 enhancement for his role as an organizer or leader in criminal activity was amply supported by the evidence.
Marquez's arguments to the contrary are unavailing. Marquez contends he did not exercise control over Hernandez and Galvan because Hernandez testified that he was not "in charge of" her, and that she and Galvan did not follow his instructions to take a different route on the return trip. But even assuming,
Marquez also contends that the meth purchase cannot form the basis for a § 3B1.1 enhancement because it was a "one-off" incident. The idea that a single criminal endeavor does not trigger § 3B1.1 finds no support in our caselaw, and contradicts the plain language of that section, which applies to "
Because Marquez "received a sentence merited by the evidence," we cannot say — as we would have to in order to reverse his sentence for plain error — that his substantial rights were violated.
We next turn to Marquez's sufficiency of the evidence challenge. The question of whether a defendant is a leader or organizer is a mixed question of law and fact that is subject to the clearly erroneous standard of review.
For the reasons we have already detailed above,
For the foregoing reasons, we affirm the district court's imposition of the two-level § 3B1.1 sentencing enhancement.
Furthermore, contrary to Marquez's contention, the fact that the district court's inquiry came