IKUTA, Circuit Judge:
The opinion filed February 17, 2015 is hereby withdrawn. An opinion will be filed in its place.
Defendant John Doe
We recounted the factual and procedural history of this case in our prior opinion, United States v. Doe, 705 F.3d 1134 (9th Cir.2013), and so provide only the information necessary for our decision here. We include the additional facts the district court found when it resolved the parties' sentencing-related factual disputes as required by Doe. See id. at 1156.
In early 2008, before engaging in the criminal activities for which he was convicted, Doe contacted the Federal Bureau of Investigation (FBI), and asked if he could provide information about illegal drug activities in exchange for immigration assistance for his family. Id. at 1140. At a meeting with an agent, Doe provided the names and phone numbers of individuals involved in drug trafficking. Id. "The agent explained that Doe was `putting the cart before the horse,' and while such requests were sometimes granted,
Shortly after these contacts, Doe participated in one unsuccessful and two completed drug transactions. Two confidential informants (Joe Reyna, nicknamed "Gordo," and Juan Duran, nicknamed "Pelón") and one undercover police detective (Detective Valdes of the Fresno Police Department) posed as the three buyers in each transaction.
Gordo obtained Doe's contact information from the subject of a different police investigation. When Gordo first called Doe, Doe confirmed that he would be able to make the arrangements to secure cocaine for Gordo and his co-buyers. He told Gordo to meet him in Los Angeles to become better acquainted and further discuss the transaction. A few days later, Gordo and Pelón drove to Los Angeles and attended a meeting with Doe. During the meeting, the buyers told Doe their specifications regarding the quantity and type of drugs they wanted to purchase (20 kilograms of cocaine), and Doe gave them the pricing information ($19,000 per kilogram). Doe confirmed that he had the contacts necessary for obtaining that quantity of cocaine. Doe then took Gordo and Pelón to another location to sample the type of cocaine that would be available for purchase. The two purported buyers then took the sample back to Detective Valdes.
Shortly thereafter, Doe informed Gordo that a trustworthy supplier now had cocaine available in Los Angeles. Gordo, Pelón, and Detective Valdes arrived in Los Angeles and met with Doe. Notwithstanding Doe's assurances, and repeated calls to hurry the suppliers, the cocaine did not arrive. The buyers left empty handed.
Doe contacted Gordo a few days later with the information that although cocaine was not immediately available, Doe could supply methamphetamine if Gordo and his co-buyers were interested. Gordo agreed to purchase 12 pounds of methamphetamine. Doe gave him the price, $17,900 per pound, as well as the contact information for Jesus Fletes, who was the contact person taking delivery of the methamphetamine. Gordo and Pelón met with Fletes to arrange logistical details. After this meeting, Gordo called Doe to express his doubts about Fletes, but Doe assured him that Fletes could deliver the methamphetamine.
Gordo and Pelón then went to Fletes's establishment to consummate the transaction, which took place under law enforcement surveillance. Although Doe did not accompany them, he communicated with Gordo frequently during the transaction. After Fletes showed Gordo and Pelón the methamphetamine, law enforcement personnel arrested Fletes. Doe called Fletes shortly after Fletes's arrest to confirm the deal had succeeded, and Fletes, now cooperating with the police, assured him it had. A few days later, Fletes called Doe and the two discussed how they would divide the profits.
Following this transaction, Doe told Gordo that the 20 kilograms of cocaine he had requested was available, and Doe could sell it to Gordo and his cohorts in two 10 kilogram transactions. Doe asked Gordo and his co-buyers to come to Los Angeles for the sale. Two other individuals involved
Doe was indicted on August 7, 2008 for aiding and abetting each of the following offenses: conspiracy to distribute methamphetamine, conspiracy to distribute cocaine, possession of methamphetamine with intent to distribute, and possession of cocaine with intent to distribute. At trial, Doe relied on a "public authority defense," namely, that he had engaged in the criminal acts with the approval of the FBI for the purpose of providing the FBI with information regarding criminal activities. Id. After a four-day trial and jury deliberations, the jury returned guilty verdicts on all counts. Id. at 1141-42.
In his first appeal, Doe raised two claims relevant here. See Doe, 705 F.3d at 1149-57. First, he argued that the district court had erred in denying two of his discovery requests. Id. at 1150. Doe requested:
Id. at 1141 (alterations in original). Before trial, the district court rejected Doe's requests on the ground that they were so overbroad that it was not possible to determine how the information sought was material to preparing a defense. Id. at 1150 (citing Fed.R.Crim.P. 16(a)(1)(E)(i)). Doe explained that he sought this information to support his public authority defense, which was based on evidence that he met with FBI agents twice prior to his arrest, and provided them with at least one name and telephone number that he claimed related to a drug trafficker. Id. at 1140, 1150-51.
Doe also claimed that the government violated its obligation to disclose material exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to provide the information identified in the discovery requests. Doe, 705 F.3d at 1152.
Doe held that the district court abused its discretion in denying the requests, which we deemed to be narrow and pointed. Id. at 1150-51. We stated that the requests were "well tailored" in that they explained the specific information sought and identified the types of documents likely to contain that information. Id. at 1150. We also held that the requests related to a specific time frame: the periods during
Second, Doe claimed that the district court made a number of procedural errors at sentencing. Among other things, the court failed to address Doe's argument that he was not an "organizer" for purposes of § 3B1.1(c), id. at 1143, which requires the imposition of a two-point sentence enhancement for a defendant who "was an organizer, leader, manager, or supervisor" in a specified criminal activity, U.S.S.G. § 3B1.1(c). We agreed, and rejected the government's argument that the district court had implicitly rejected Doe's objection. Doe, 705 F.3d at 1155. First, we held that an "implicit ruling was insufficient to comply with this court's interpretation of Rule 32" of the Federal Rules of Criminal Procedure, id. at 1154-55; rather, a court must explicitly resolve objections and factual disputes relating to sentencing enhancements, id. at 1155. Moreover, we stated that the inadequacy of an implicit ruling in this case "is even more pronounced due to the weak support for any implicit findings the court may have made," and ruled that "[i]f this enhancement is to be imposed, the judge must make more explicit findings" on remand to resolve the factual disputes. Id. at 1156; see also id. at 1155 n. 12. After finding in Doe's favor on his other claims of procedural error, we vacated the sentence and remanded for further proceedings. Id. at 1156-57.
On remand, the government responded to the discovery requests by submitting additional declarations of two FBI agents who met with Doe. One agent's declaration stated he had met Doe only once, and attached a calendar entry and an email referring to an April 15 meeting with Doe. The other agent's declaration stated that he "conducted a global search of the electronic records database" of the FBI, that the FBI database "contains all reports that would be responsive" to the requests, and that the search performed "encompassed the requested information." Based on this search, the second agent stated that the government had already given Doe all responsive documents, including his notes of and report on his meetings with Doe. The district court rejected Doe's argument that the government should have searched additional databases to see if they contained any references, during any time period, to the same phone numbers, license plate numbers, or names Doe had given the government. It concluded that all information responsive to the discovery requests had been produced. Because nothing in the response to the discovery requests would have affected the jury's verdict, the district court reinstated the conviction.
At Doe's re-sentencing, the district court imposed a two-level enhancement under § 3B1.1(c) for being an organizer. The district court responded to Doe's mandate that it resolve the objections and factual disputes affecting the organizer enhancement; it heard the parties' arguments and then verified and incorporated as part of its factual findings a portion of the fact section of the government's sentencing memorandum. In addition, the district court made a number of findings supporting its determination that Doe was the "nexus" who "connected all the participants together." The district court noted that Doe not only introduced the parties,
In this second appeal, Doe claims the district court erred in concluding that one of the two discovery requests, Request Five, was satisfied by the documents the government produced. He also claims that the district court made two erroneous decisions under the Sentencing Guidelines by imposing the § 3B1.1(c) enhancement for being an organizer and by denying him a sentence reduction for acceptance of responsibility under § 3E1.1. Finally, he claims that the district court erred by denying him a reduction under the safety valve provision, pursuant to 18 U.S.C. § 3553(f)(4).
We review discovery orders for an abuse of discretion. Doe, 705 F.3d at 1149-50. We first determine "whether the district court identified the correct legal standard" and then "determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record." United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir.2009) (en banc). We review alleged Brady violations de novo. United States v. Stever, 603 F.3d 747, 752 (9th Cir.2010).
We review the district court's interpretation of the Sentencing Guidelines de novo, United States v. Swank, 676 F.3d 919, 921 (9th Cir.2012), and review its factual findings in sentencing for clear error, United States v. Bonilla-Guizar, 729 F.3d 1179, 1186 (9th Cir.2013) (citing United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005)). The district court's determination that a defendant is an "organizer" for purposes of the § 3B1.1(c) enhancement is a question of fact reviewed for clear error. United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th Cir.1998). "A district court's decision about whether a defendant has accepted responsibility is a factual determination reviewed for clear error." United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir.2010) (quoting United States v. Cantrell, 433 F.3d 1269, 1284 (9th Cir.2006)).
We first consider Doe's claim that the district court abused its discretion in holding that the government's disclosures satisfied Request Five. Doe argues that the language of Request Five, asking for "[a]ny and all records or reports which document any and all telephone numbers,
The district court's holding is consistent with the most natural reading of Request Five. Request Five asks for reports regarding Doe's conveyance of specified information to the government, not reports unrelated to Doe's alleged assistance that happen to contain the same information. This natural interpretation of the discovery request is also consistent with our analysis in Doe, where we stated that the requests were narrowly tailored and limited to documents created within the time frame during which Doe met with the FBI agents. Doe, 705 F.3d at 1150. Under Doe's interpretation, by contrast, the government would have to search for records spanning an indefinite period of time. Because the district court's narrower reading of the requests is not "illogical, implausible, or without support in inferences that may be drawn from facts in the record," see Hinkson, 585 F.3d at 1251, the district court did not err in holding there was no discovery violation.
Doe also argues that because the government did not respond fully to Request Five, it failed to fulfill its Brady obligations. Doe has not shown that he has been prejudiced by the government's failure to disclose documents responsive to his broader reading. See Doe, 705 F.3d at 1152-53. Even if the government produced documents showing that the telephone numbers, license plates, or names provided by Doe belonged to real criminals, such evidence would not materially bolster Doe's defense that he committed criminal acts as an FBI informant or undermine confidence in the verdict. We therefore also affirm the district court's rejection of Doe's Brady claim.
We next consider Doe's challenge to the two-level enhancement under § 3B1.1(c).
Chapter 3, Part B of the Sentencing Guidelines "provides adjustments to the offense level based upon the role the defendant played in committing the offense." U.S.S.G. § 3B, introductory cmt. Section 3B1.1 provides for enhancements of a defendant's offense level if the defendant played an aggravating role in the criminal activity. It states, in full:
The plain text of §§ 3B1.1(a) and (b) requires only that the participants be "involved" in the criminal activity the defendant organizes, leads, manages, or supervises. On its face, § 3B1.1(c) does not require even the involvement of a participant. Nevertheless, under our precedent, see Varela, 993 F.2d at 692, and the relevant
In light of this requirement, we have held that in order for a defendant to qualify as an "organizer" for purposes of § 3B1.1(c), there must be "evidence that the defendant [1] exercised some control over others involved in the commission of the offense or [2] was responsible for organizing others for the purpose of carrying out the crime." United States v. Whitney, 673 F.3d 965, 975 (9th Cir.2012) (internal quotation marks omitted). Doe's role is best described by the second prong of this disjunctive test, and we therefore focus on this aspect of the organizer enhancement under § 3B1.1(c).
The Sentencing Guidelines do not define the key term "organizer," so we turn to the dictionary definition. See United States v. Flores, 729 F.3d 910, 914 (9th Cir.2013) (stating that undefined Sentencing Guidelines terms are given their plain meaning, for which we may consult dictionary definitions). The dictionary defines "organizer" as "[a] person who organizes," and defines "organize" as to "make arrangements or preparations for (an event or activity); coordinate" or to "coordinate the activities of (a person or group of people) efficiently: organize and lead a group of people." New Oxford American Dictionary 1236 (3rd ed.2010) (italics omitted). This dictionary definition is consistent with language in the application notes to § 3B1.1, which suggests that a court should consider organizing, planning, and preparation activities, in addition to the degree of authority and control over others. See § 3B1.1, cmt. n.4.
Consistent with the plain language of the Sentencing Guidelines, we have held that a defendant who has the "organizational authority," Lopez-Sandoval, 146 F.3d at 717, necessary to coordinate the activities of others to achieve a desired result is an "organizer" for purposes of the enhancement under § 3B1.1(c), see Varela, 993 F.2d at 692.
An organizer need not also be a supervisor or a superior in a hierarchy of criminal associates. See U.S.S.G. § 3B1.1(c); see also Varela, 993 F.2d at 691. As we explained in Varela, the text of the Sentencing Guidelines requires this conclusion. 993 F.2d at 691. "[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous...." Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (internal quotation marks omitted). Because "[s]ection 3B1.1 allows enhancements for `organizers' as well as for `supervisors,' `leaders,' or `managers,'" Varela, 993 F.2d at 691, requiring an organizer to also be a supervisor would make the term "organizer" superfluous. Thus, the organizer enhancement properly applies to a defendant who "organizes others in the commission of the criminal activity even though he does not retain a supervisory role over the other participants." Id.
Applying this interpretation in Varela, we confirmed that "[t]he fact that [the defendant] and his suppliers were not in a permanent hierarchical relationship does not preclude our conclusion" that the district court did not clearly err in imposing the organizer enhancement. Id. at 691. Similarly, in Montano we held that the defendant, who sold Mexican pharmaceuticals his suppliers smuggled into the United States, was eligible for an organizer enhancement even though he had no supervisory relationship with his suppliers, who were "independent contractors, smugglers-for-hire, with [the defendant] being only one of their many customers." 250 F.3d at 711, 715. Applying the enhancement was appropriate because the defendant coordinated the smuggling operation to achieve its objective, telling his suppliers "when to make a crossing, what pharmaceuticals to purchase, and where to deliver them." Id. at 716. Accordingly, we conclude that the term "organizer" in § 3B1.1(c) applies to defendants who have the ability and influence necessary to coordinate the activities of others to achieve the desired result, whether or not they have a superior rank in a criminal hierarchy.
As indicated in Whitney and Lopez-Sandoval, we do not apply the enhancement merely because a defendant's "important role" makes him "integral to the success of the criminal enterprise" and gives him a "high degree of culpability." Whitney, 673 F.3d at 975; see also Lopez-Sandoval, 146 F.3d at 717-718 (holding that the defendant's role as a translator for his co-conspirators, though important, was an insufficient basis for applying the § 3B1.1(c) enhancement). We have also rejected a district court's use of a "but/for test" in this context, and reversed a decision that a defendant qualified for the organizer enhancement because the criminal enterprise could not succeed without him. See United States v. Harper, 33 F.3d 1143,
We conclude that, in light of the facts and our precedent, the district court did not clearly err in determining that Doe was an "organizer" for purposes of § 3B1.1(c). As required by Doe, the district court resolved the objections and factual disputes raised by the parties. Its findings were not clearly erroneous and they support the court's conclusion that Doe's efforts to coordinate "the procurement and the distribution of drugs from numerous suppliers," and his role in "coordinating the activities of the other participants to the extent necessary to complete the transaction," is sufficient to uphold the organizer enhancement. Varela, 993 F.2d at 691-92. Doe's coordination of the activities of the criminal participants, namely Fletes, Bautista, and Rodriguez, as well as non-criminal participants, including Gordo, Pelón, and Detective Valdez, was the driving force behind the success of two drug transactions and near completion of a third. Doe put the deal together by negotiating the type, quantity, and price of drugs for each transaction, and then ensured the drugs, money, and participants arrived when and where needed. Imposing the organizer enhancement when a defendant has this level of involvement "reflects the greater culpability of the participant who arranges the transaction." Varela, 993 F.2d at 691-92; see also Montano, 250 F.3d at 716.
As an organizer, Doe is ineligible for safety valve relief, pursuant to 18 U.S.C. § 3553(f)(4). We therefore also affirm the district court's denial of relief under the safety valve.
Finally, we turn to Doe's claim that the district court erred in denying him a two-level offense reduction for acceptance of responsibility. A defendant may receive at two-level offense reduction if he "clearly demonstrates acceptance of responsibility for his offense." U.S.S.G. § 3E1.1(a). The "adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse," U.S.S.G. § 3E1.1 cmt. n.2, though going to trial does not necessarily preclude the adjustment if the defendant asserts an incomplete, rather than complete, defense at trial, see United States v. Burrows, 36 F.3d 875, 883 (9th Cir.1994). The district court's decision on this point is entitled to "great deference" because "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. § 3E1.1 cmt. n.5. The decision is "not to be disturbed `unless it is without foundation.'" United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993) (quoting United States v. Aichele, 941 F.2d 761, 767 (9th Cir.1991)).
At sentencing, the district court found that Doe's testimony that he engaged in criminal conduct for the purpose of gaining information to give to the FBI was not believable, and that Doe was not truthful to the government or to the jury when he testified. Although Doe challenges this finding on the ground that he could subjectively believe that he was helping the FBI, even though the jury and judge decided that this belief was not reasonable, the district court's findings are well supported by the record and not clearly erroneous.