UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4095
JUAN JOSE VALLADARES-HELGUERA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-00-130)
Submitted: October 3, 2003
Decided: October 16, 2003
Before WILLIAMS and SHEDD, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Lyle J. Yurko, YURKO & OWENS, P.A., Charlotte, North Carolina,
for Appellant. Robert J. Conrad, Jr., United States Attorney, Jennifer
Marie Hoefling, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. VALLADARES-HELGUERA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jose Juan Valladares-Helguera (Valladares) pled guilty, without a
written plea agreement, to one count of conspiracy to possess with
intent to distribute cocaine, cocaine base, and marijuana, 21 U.S.C.
§ 846 (2000), and one count of conspiracy to commit money launder-
ing, 18 U.S.C. § 1956(h) (2000). He was sentenced to life imprison-
ment. Valladares appeals, claiming that: (1) the district court erred in
applying a two-level enhancement for possession of a firearm; (2) the
district court erred in applying a four-level enhancement for being a
leader or organizer of the drug conspiracy; (3) the district court erred
in finding that the crack cocaine portion of the conspiracy was reason-
ably foreseeable to him; (4) the district court erred in denying a three-
level reduction for acceptance of responsibility; and, (5) his life sen-
tence constitutes cruel and unusual punishment in violation of the
Eighth Amendment. Finding no reversible error, we affirm.
In 1999, a state police investigation uncovered a large cocaine and
marijuana trafficking organization in the Western District of North
Carolina. One of the co-conspirators arrested, Jimmy Philbeck, identi-
fied Valladares and his brother Carlos as the primary suppliers of the
conspiracy; according to Philbeck, the brothers supplied him with
2000 pounds of marijuana and 8 kilograms of cocaine over an eight-
month period. At Valladares’ sentencing hearing, United States Cus-
toms Agent Roger Jernigan testified that Philbeck identified Valla-
dares as "the boss" of the organization in that he "controlled and told
the others what to do."
Jernigan also testified that information received from wiretaps on
Valladares’ phone indicated that Valladares knew that the cocaine he
supplied was being cooked into crack cocaine. Specifically, Valla-
dares had several conversations over a three-day period pertaining to
the quality of the cocaine as determined by its quality when cooked
UNITED STATES v. VALLADARES-HELGUERA 3
into crack. Jernigan also stated that according to another co-
conspirator, Valladares was aware that a large part of the cocaine that
he supplied was being cooked into crack. Co-conspirator Juan Mer-
cado stated that he received approximately twenty to thirty kilograms
of cocaine powder from Valladares and that a large amount of that
cocaine was cooked into crack.
The presentence report recommended a two-level enhancement for
possession of a dangerous weapon (a firearm) based on a 1997 state
court conviction for possession with intent to sell and deliver mari-
juana and carrying a concealed gun. USSG § 2D1.1(b)(1). Based on
a total offense level of 44 and a criminal history category I, the dis-
trict court sentenced Valladares to the recommended guideline sen-
tence of life imprisonment. He noted a timely appeal.
Valladares first challenges the enhancement he received for posses-
sion of a dangerous weapon. A two-level enhancement must be given
under USSG § 2D1.1(b)(1) if a dangerous weapon was possessed dur-
ing the offense. Application Note 3 provides that the enhancement
applies if the weapon is present, unless it is clearly improbable that
the weapon was connected with the offense. The determination that
a weapon enhancement is warranted is a factual determination subject
to clearly erroneous review. United States v. Apple, 915 F.2d 899, 914
(4th Cir. 1990).
Valladares’ 1997 conviction for carrying a concealed weapon
occurred during the time period charged in the indictment. Valladares
did not refute this evidence. Moreover, Agent Jernigan testified that
other members of the conspiracy carried firearms and that those fire-
arms were foreseeable to Valladares. Thus, the district court’s finding
of this enhancement was not clearly erroneous.
Next, Valladares argues that the district court erred in applying a
four-level enhancement for his role in the offense. A district court’s
determination of the defendant’s role in the offense is a factual find-
ing that is reviewed for clear error. United States v. Perkins, 108 F.3d
512, 518 (4th Cir. 1997). Section 3B1.1(b) provides for a four-level
increase "[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive." The commentary clarifies the applicability of the enhance-
4 UNITED STATES v. VALLADARES-HELGUERA
ment: "to qualify for an adjustment under this section, the defendant
must have been an organizer, leader, manager, or supervisor of one
or more other participants." USSG § 3B1.1, comment. (n.2). The
enhancement only requires the recruitment of one other person.
United States v. Kincaid, 964 F.2d 325, 329 (4th Cir. 1992). Factors
distinguishing a leadership or organizational role from lesser roles
include exercise of decision-making authority, the nature of the par-
ticipation in the offense, recruitment of accomplices, the claimed right
to a larger share of the proceeds, the degree of participation in plan-
ning or organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised. USSG §
3B1.1, comment. (n.4).
The indictment named twenty-five members of the conspiracy. In
addition to information contained in Valladares’ presentence report,
the evidence of Valladares’ leadership was provided by Jernigan’s
testimony at the sentencing hearing. There, Jernigan testified that
Philbeck identified Valladares as "the boss" of the organization
because he "controlled and told the others what to do." Moreover,
Valladares’ own testimony established that he received large quanti-
ties of drugs from Mercado in Mexico and that he (Valladares) then
distributed the drugs to Philbeck and others in North Carolina. Given
this uncontradicted evidence, we find that the district court’s applica-
tion of the enhancement for Valladares’ leadership role was not
clearly erroneous.
Next, Valladares asserts that the district court erred in attributing
the conspiracy’s crack cocaine to him. Specifically, Valladares argues
that the district court erred in relying on the wiretapped phone conver-
sations as evidence because the government did not introduce any evi-
dence about whether the wiretap conversations were in English or in
Spanish. These objections were waived because Valladares failed to
raise them at his sentencing hearing. Moreover, Valladares does not
suggest, nor provide any evidence, that the conversations were not
clearly understood. In addition, the district court specifically found
Valladares’ testimony on this subject "incredible." We thus find that
the district court did not clearly err in attributing crack cocaine to Val-
ladares.
Fourth, Valladares challenges the district court’s denial of a three-
level reduction for acceptance of responsibility. USSG § 3E1.1(a),(b).
UNITED STATES v. VALLADARES-HELGUERA 5
The district court’s determination regarding acceptance of responsi-
bility is factual and is reviewed with great deference for clear error.
USSG § 3E1.1, comment. (n.5); United States v. Ruhe, 191 F.3d 376,
388 (4th Cir. 1999). The burden is on the defendant to establish by
a preponderance of the evidence that he is entitled to the adjustment.
United States v. Urrego-Linares, 879 F.2d 1234, 1238-39 (4th Cir.
1989).
Valladares’ guilty plea did not automatically entitle him to a reduc-
tion for acceptance of responsibility. United States v. Nale, 101 F.3d
1000, 1005 (4th Cir. 1996). The district court denied the adjustment
because Valladares refused to accept responsibility for distributing
crack cocaine and because the court found his testimony "incredible."
We find that the district court did not clearly err. See United States
v. Harris, 882 F.2d 902, 905 (4th Cir. 1989) ("A defendant’s credibil-
ity and demeanor play a crucial role in evaluating whether he is genu-
inely contrite and has accepted responsibility and the sentencing
judge is in a unique position to evaluate these factors."); see also
USSG § 3E1.1, comment. (n.1(a)) (finding defendant who falsely
denies or frivolously contests relevant conduct determined to be true
does not merit adjustment for acceptance of responsibility).
Finally, Valladares argues that his life sentence violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Val-
ladares’ sentence was based upon 3000 pounds of marijuana, 38 kilo-
grams of cocaine, and over 1.5 kilograms of crack cocaine and was
enhanced on the grounds addressed above. His guideline range was
life imprisonment.
We find that, given the length of the conspiracy, the amount of
drugs involved, and Valladares’ leadership role in the conspiracy, his
life sentence was not unconstitutional. Furthermore, Valladares’ sen-
tence was based on an amount exceeding that involved in Harmelin
v. Michigan, 501 U.S. 957 (1991) (upholding life sentence for a first-
time drug offender who possessed 672 grams of cocaine powder).
This court has "found that a life sentence for a major drug violation
is not disproportionate in comparison with other sentences under the
Guidelines." United States v. D’Anjou, 16 F.3d 604, 613 (4th Cir.
1994). Accordingly, Valladares has failed to show an Eighth Amend-
ment violation.
6 UNITED STATES v. VALLADARES-HELGUERA
We affirm Valladares’ sentence. We dispense with oral argument
because the facts and legal contentions are adequately addressed in
the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED