USSG 3B1.1 and the Supervisory Role Enhancement. A Seven Point Checklist.

United Statesv. Gonzalez-Mendoza, No. 08-3275 (7th Cir. 10/14/2009)

Omar Alejandro Gonzalez-Villa ("Villa") and Jesus N. Gonzalez-Mendoza ("Mendoza") pleaded guilty to conspiring to distribute or possess with intent to distribute heroin and cocaine. The district court sentenced Villa and Mendoza to 142 months' and 130 months' imprisonment, respectively. They appeal their sentences, and we affirm.

At the direction of law enforcement agents, a confidential informant pretending to be interested in purchasing a truck approached Villa, who had advertised one for sale. The conversation evolved into a discussion about narcotics. The informant secretly recorded the conversation as he and Villa discussed the price of a kilogram of heroin, and Villa later provided the informant with a sample of heroin.

The next day, agents conducted a stop of Villa's vehicle near his residence. During the course of the stop, Villa told agents that inside a pickup truck in his garage was a suitcase containing a large sum of cash and eight kilograms of cocaine. Villa also consented to a search of his house and garage.

Inside the pickup truck in the garage, agents discovered a suitcase containing $312,000 in cash and a duffel bag containing three kilograms of heroin and four kilograms of cocaine. Villa then told agents that he was from Mexico and was in Chicago to oversee drugs and drug proceeds for a Mexican cartel. Villa also stated that he received $1500 per week for carrying out his oversight responsibilities.

When agents searched Villa's house, they encountered Mendoza, Villa's 19-year-old brother-in-law from Mexico who had been living in the house for two months. When questioned by agents shortly after they entered the house, Mendoza stated he had packed the currency found in the suitcase at Villa's direction and that he had previously wrapped money on Villa's instruction.

At sentencing, the district court enhanced Villa's Guidelines offense level by two levels for being a manager or supervisor in the offense and denied his request for a safety-valve adjustment.

On appeal, Villa first argues that the district court erred by enhancing his offense level for serving as a manager or supervisor of criminal activity under U.S.S.G. § 3B1.1(c). We review a district court's determination that a defendant played a managerial or supervisory role in an offense for clear error. United States v. Pira, 535 F.3d 724, 730 (7th Cir. 2008).

Under § 3B1.1(c), a two-level increase in a defendant's offense level is warranted if the criminal activity involved fewer than five participants and the defendant was an "organizer, leader, manager, or supervisor."

(footnote: The Guidelines do not define the terms "manager" or "supervisor." Although application note 4 to § 3B1.1 instructs that the following seven factors are to be used to distinguish organizers/leaders from managers/supervisors, we have concluded "that they are still relevant in ascertaining whether an individual had a supervisory role at all," United States v. Howell, 527 F.3d 646, 649 (7th Cir. 2008): (1) the exercise of decision making authority; (2) the nature of participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of participation in planning or organizing the offense; (6) the nature and scope of the illegal activity; and (7) the degree of control and authority exercised over others.)

Villa contends that the § 3B1.1(c) enhancement cannot be applied unless he exercised some element of control over another participant in the offense.

There is some tension in our case law on this point. But even if control over another participant is the sine qua nonfor an enhancement under § 3B1.1, there was evidence that Villa exercised control over Mendoza: Mendoza told agents he had packed the money in the suitcase at the direction of Villa and that he had done so on other occasions.  In addition, Villa admitted he was in Chicago to oversee drugs and drug proceeds for a Mexican cartel, which suggests he played a coordinating or organizing part in the criminal activity.

For these reasons, the district court did not clearly err by finding that Villa occupied a managerial or supervisory role and enhancing his offense level accordingly under § 3B1.1(c).