UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS MANGUAL, JR., a/k/a Darin Harris,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:04-cr-00235-RWT-2)
Submitted: April 29, 2008 Decided: May 22, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William C. Brennan, Jr., William A. Mitchell, Jr., BRENNAN,
SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellant. Rod
J. Rosenstein, United States Attorney, Deborah A. Johnston, Robert
K. Hur, Assistant United States Attorneys, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Felipe Mangual, Jr., appeals his life sentence after
being convicted of conspiracy to distribute and possess with intent
to distribute five kilograms or more of cocaine, one kilogram or
more of heroin, and fifty grams or more of cocaine base, in
violation of 21 U.S.C. § 846 (2000), nineteen counts of use of a
communications device in furtherance of the drug conspiracy, in
violation of 21 U.S.C. § 843(b) (2000), four counts of possession
with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2007), possession
with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C.A. § 841, interstate travel with intent to
promote and carry on a business enterprise involving narcotics, in
violation of 18 U.S.C.A. § 1952 (West 2000 & Supp. 2007),
conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h) (2000), and money laundering, in violation of 18 U.S.C.A.
§ 1956(a)(1)(A)(I) (West 2000 & Supp. 2007).
On appeal, Mangual challenges his sentence, contending
the district court erred in: (1) calculating the amount and type of
drugs attributable to him; (2) determining that he should be held
responsible for a firearm possessed by a co-conspirator; (3)
determining that he held a supervisory role within the conspiracy;
(4) denying any adjustment for acceptance of responsibility; (5)
imposing an unreasonable sentence; (6) making sentencing
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determinations based solely on judicial findings; and (7) imposing
an enhanced sentence without prior notice pursuant to 28 U.S.C.
§ 851 (2000). Mangual has also filed a motion requesting leave to
file a pro se supplemental brief, in which he raises additional
claims relating to his sentence. Finding no error, we affirm.
I
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). The appellate court must first ensure
that the district court committed no procedural errors, such as
“failing to calculate (or improperly calculating) the Guideline
range, treating the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence - including an explanation for any deviation from the
Guideline range.” Gall, 128 S. Ct. at 597. “In assessing a
challenge to a sentencing court’s application of the Sentencing
Guidelines,” this court reviews a district court’s “factual
findings for clear error and its legal conclusions de novo”.
United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
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A
Mangual’s first claim challenges the district court’s
determination of his base offense level, asserting that the total
amount of drugs held attributable to him was “purely speculative,
procedurally improper, and unsupported by the record.” Pursuant to
U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.3(a)(1) (2005), in
determining the proper base offense level to apply to a defendant
involved in a drug conspiracy, the defendant is responsible for his
own acts, as well as for “all reasonably foreseeable acts” of his
co-conspirators taken in furtherance of the joint criminal
activity. See United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999); United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir.
1993). The Guidelines do not require precise calculations of drug
quantity, as the district court’s approximation is not clearly
erroneous if supported by competent evidence. Randall, 171 F.3d at
210. If the district court relies on the drug quantity included in
the presentence report (“PSR”), the defendant bears the burden of
establishing that the information is incorrect, as “mere objections
are insufficient.” Id. at 210-11.
At sentencing, the Government presented testimony from
DEA Agent Charles Hedrick and Officer Thomas Eveler. Hedrick’s
testimony related to a ledger recovered from the residence of Luis
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F. Mangual, Sr.,1 that listed the quantity of drugs received and
distributed by Mangual, Sr., including various transfers of cocaine
and heroin to his son. According to Agent Hedrick’s analysis of
the ledger, between October 2002 and June 2004, a total of 549
kilograms of cocaine, worth approximately $ 11.5 million, was
received by Mangual, Sr., from an individual identified as “Cucho.”
During this period, Mangual, Sr., also received 14.5 kilograms of
heroin, worth approximately $1.1 million. The ledger indicated
that Mangual, Sr., provided his son with between 100 to 140
kilograms of cocaine and approximately 5 kilograms of heroin, with
the drugs sold to Mangual at a discounted price compared to other
buyers. Pursuant to USSG § 2D1.1(a)(3), the district court found
Mangual was responsible for “substantially more than 150 kilograms”
of cocaine, resulting in a base offense level of 38, as the amount
of narcotics attributable to Mangual was not limited solely to the
drugs sold to him, but also included the total amount of drugs
received by his father.
At sentencing, Mangual contended the district court
should limit its analysis to the amount of drugs he actually
received. However, in light of Mangual’s close association with
his father within the jointly undertaken criminal operation, the
district court had sufficient grounds to hold Mangual responsible
1
Mangual, Sr., who is Mangual’s father and was charged as a
co-conspirator, pled guilty to conspiracy to distribute and possess
with intent to distribute controlled substances.
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for the total amount of narcotics received by his father. In the
wiretapped telephone conversations, Mangual and his father often
spoke to one another about the operation of the drug enterprise,
discussing matters such as supply sources, customers, quality of
the drugs, transportation of the narcotics, and the activities of
other members of the conspiracy. On one occasion, Mangual, Sr.,
informed his son that he was awaiting a shipment of 200 kilograms
of cocaine from a supplier. On another occasion, Mangual was
provided with samples of heroin to do a “product test” to help his
father decide whether to purchase larger amounts from another
supplier.
Mangual’s close relationship with his father within the
conspiracy was clearly evinced by the fact that Mangual was
expected to take over his father’s position in the drug enterprise
while Mangual, Sr., was in the hospital. Mangual, Sr., intended
for his son to run the entire operation during his absence and had
discussed this matter with his suppliers in order to ensure the
supply of narcotics would not be interrupted. Though Mangual was
arrested before this transition occurred, the fact that he was
expected to serve as the head of the distribution operation
demonstrated he was well aware of the scope of his father’s
criminal activities. Therefore, we find the district court had
ample evidence to support its finding that the drug deliveries to
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Mangual’s father were reasonably foreseeable acts taken in
furtherance of their joint criminal activity.
Mangual also contends the district court erred by failing
to make any finding as to whether he and his father intended or
were capable of delivering the amount of drugs held attributable to
them. However, this claim is wholly without merit. The district
court is required to exclude an unsuccessfully negotiated amount of
narcotics only when a defendant “lacked both the intent and the
ability to complete the drug transaction.” United States v.
Brooks, 957 F.2d 1138, 1151 (4th Cir. 1992). In this case, not
only did Mangual and his father clearly intend to distribute the
narcotics for which they were held responsible, but Officer Eveler
specifically stated that Mangual, Sr., was capable of distributing
at least 200 kilograms of cocaine. While Mangual notes the
district court made no finding regarding the drugs he received from
another supplier, Edward Barber, such a finding was unnecessary, as
the court had already determined Mangual was responsible for
substantially more than 150 kilograms of cocaine based solely on
his dealings with his father. Accordingly, we conclude the
district court did not err in calculating Mangual’s base offense
level.
B
Mangual’s next contention is the district court erred by
holding him responsible for a firearm recovered from the residence
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of a co-conspirator, Travel Riley,2 as there was no evidence
Mangual had ever been to the residence or was otherwise aware that
Riley possessed a firearm.3 Under USSG § 2D1.1(b)(1), a two-level
offense level enhancement shall be imposed if a dangerous weapon,
including a firearm, was possessed during the narcotics offense.
The adjustment is applied “if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.”
USSG § 2D1.1(b)(1), comment. (n.3). In order to demonstrate that
a weapon was present, the Government need show only that “the
weapon was possessed in connection with drug activity that was part
of the same course of conduct or common scheme as the offense of
conviction.” United States v. McAllister, 272 F.3d 228, 233-34
(4th Cir. 2001) (internal quotation marks and citation omitted).
Pursuant to USSG § 1B1.3(a)(1)(B), a defendant may be held
responsible for a firearm possessed by another member of the
2
Riley pled guilty to conspiracy to distribute and possess
with intent to distribute 500 grams of cocaine and possession of a
firearm in furtherance of a drug trafficking crime.
3
Mangual also contends the district court failed to determine:
(1) whether Riley’s possession of the firearm occurred during the
commission of the offense or in furtherance of that offense; and
(2) whether it was clearly improbable that the weapon was connected
with the offense. However, Mangual failed to raise either of these
objections before the district court. At sentencing, the district
court noted that it was “undisputed” that the firearm was seized in
proximity to drugs and cash that were part of the conspiracy. See
Fed. R. Crim. P. 32(I)(3) (“At sentencing, the court may accept any
undisputed portion of the presentence report as a finding of
fact.”). Accordingly, because Mangual failed to raise these
issues, there was no error by the district court.
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conspiracy if possession of the firearm was reasonably foreseeable
to the defendant and “in furtherance of the jointly undertaken
criminal activity.” See United States v. Kimberlin, 18 F.3d 1156,
1159-60 (4th Cir. 1994); Brooks, 957 F.2d at 1148-49.
As Mangual conceded at sentencing, the Government is not
required to prove he possessed or had knowledge of the firearm held
by Riley. See United States v. Nelson, 6 F.3d 1049, 1055-56 (4th
Cir. 1993), abrogated on other grounds by Bailey v. United States,
516 U.S. 137 (1995); see also United States v. White, 875 F.2d 427,
433 (4th Cir. 1989). While Mangual contends that USSG
§ 2D1.1(b)(1) demands some form of a physical nexus between the
defendant and the firearm held by a co-conspirator, the evidence is
only required to show that “under the circumstances of the case, it
was fair to say that it was reasonably foreseeable to [defendant]
that his co-participant was in possession of a firearm.”
Kimberlin, 18 F.3d at 1160 (internal quotation and citation
omitted). Furthermore, this court has held that “[a]bsent evidence
of exceptional circumstances, . . . it [is] fairly inferable that
a codefendant’s possession of a dangerous weapon is foreseeable to
a defendant with reason to believe that their collaborative
criminal venture includes an exchange of controlled substances for
a large amount of cash.” Id.; see also White, 875 F.2d at 433.
In this case, the wiretap evidence indicated that
Mangual’s relationship with Riley went beyond that of a supplier
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and a street-level dealer. At the Rule 11 hearing, Mangual
conceded he was part of a drug conspiracy involving a number of
individuals, including Riley, to whom he sold cocaine for
distribution. While Mangual would often call Riley to discuss
payment for the drugs he provided, he would also seek Riley’s
advice on how to deal with problems he was facing, including a
police seizure of drug proceeds and the resulting issues with his
supplier. In light of their close association and the sizeable
amount of cocaine Mangual was providing to Riley, it was reasonably
foreseeable that Riley would carry a firearm in furtherance of
their joint drug distribution efforts. See Kimberlin, 18 F.3d at
1160. Accordingly, we find the district court did not err in
imposing a two-level enhancement for possession of a firearm in
furtherance of the conspiracy.
C
Mangual asserts the district court erred by imposing a
three-level enhancement for his role in the conspiracy. A
three-level role adjustment is appropriate when “the defendant was
a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive.” USSG § 3B1.1(b). Such an enhancement
requires, at a minimum, that the defendant was the manager or
supervisor “of one or more other participants.” USSG § 3B1.1,
comment. (n.2); United States v. Bartley, 230 F.3d 667, 673 (4th
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Cir. 2000). Factors distinguishing a “leadership” or
“organizational role” from that of a manager or supervisor include:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
USSG § 3B1.1, comment. (n.4).
Mangual contends the role enhancement was erroneous
because he was an independent wholesale supplier of drugs and there
was no evidence he “ever had anyone pick up or deliver drugs on his
behalf.”4 However, according to the statement of facts provided by
the Government at the Rule 11 hearing, Mangual received drugs from
Barber by use of a courier, identified as Milton Boyd. During a
wiretapped phone conversation, Mangual directed Boyd as to where
the delivery was to be made. Boyd was then seen delivering a
package, which included five kilograms of cocaine, to Mangual’s
residence. On another occasion, Mangual’s girlfriend brought a bag
to him in Baltimore that contained $43,500, which Mangual then
provided to his supplier, Barber, in order to pay off an existing
debt. Based on this evidence, it is clear Mangual directed others
4
Mangual also claims the district court erred because it “went
directly into an analysis of what kind of leadership role Mr.
Mangual played, and therefore improperly assumed that he had played
any leadership role at all.” However, this claim is meritless.
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to transport money and drugs as part of the ongoing criminal
enterprise. See Bartley, 230 F.3d at 673-74.
Mangual’s relationship with his purchasers is not
comparable to the drug dealers in United States v. Sayles, 296 F.3d
219, 225 (4th Cir. 2002), who were involved in hand-to-hand
transactions at the street level and were found to have had no role
in planning or organizing the drug trafficking. Mangual had two
tiers of buyers; some were “cash-and-carry,” while others were
“fronted” the drugs, meaning they would receive the drugs up front
and pay for it later. In a number of calls with individuals who
were fronted cocaine, Mangual discussed payment for the narcotics
and expressed his frustration with lingering debts owed to him by
the dealers. As is evidenced by his direct involvement in setting
payment terms with his buyers, Mangual exercised some level of
control over the dealers to whom he provided cocaine. See Bartley,
230 F.3d at 674; United States v. Howard, 923 F.2d 1500, 1503 (11th
Cir. 1991).
Mangual’s critical role within the conspiracy is further
illustrated by his close relationship with his father. Described
by Officer Eveler as his father’s “right-hand man,” Mangual was
provided with samples of heroin by his father to carry out product
tests and was expected to take over his father’s position within
the drug enterprise while Mangual, Sr., was in the hospital. See
Brooks, 957 F.2d at 1152. Accordingly, we conclude the district
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court did not clearly err in finding that Mangual’s role within the
conspiracy justified a three-level enhancement under USSG
§ 3B1.1(b).
D
Mangual also contends the district court erred in denying
him a reduction for acceptance of responsibility. A two-level
reduction in the defendant’s offense level is warranted if he
clearly demonstrates acceptance of responsibility for his offense.
USSG § 3E1.1(a) (2005). An adjustment for acceptance of
responsibility does not result automatically from the entry of a
guilty plea; rather, in order to receive such a reduction, “the
defendant must prove by a preponderance of the evidence that he has
clearly recognized and affirmatively accepted personal
responsibility for his criminal conduct.” United States v. May,
359 F.3d 683, 693 (4th Cir. 2004) (internal quotation marks and
citation omitted). In determining whether an adjustment is
warranted, the district court may consider whether the defendant
has “truthfully admitt[ed] the conduct comprising the offense(s) of
conviction, and truthfully admitt[ed] or not falsely den[ied] any
additional relevant conduct for which the defendant is accountable
under § 1B1.3.” USSG § 3E1.1, comment. (n.1(a)).
While a defendant may remain silent with respect to
conduct beyond the offense of conviction without affecting his
ability to obtain a reduction, “a defendant who falsely denies, or
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frivolously contests, relevant conduct that the court determines to
be true has acted in a manner inconsistent with acceptance of
responsibility.” Id. The district court’s determination is
entitled to “great deference” because of the sentencing judge’s
“unique position to evaluate a defendant’s acceptance of
responsibility.” United States v. Dugger, 485 F.3d 236, 239 (4th
Cir. 2007) (citing USSG § 3E1.1, comment. (n.5)).
While the PSR recommended a two-level reduction, the
Government opposed any adjustment on the ground that Mangual had
failed to fully acknowledge his participation in the conspiracy;
specifically, his denial of any involvement in heroin distribution.
The district court agreed, concluding that, contrary to Mangual’s
assertions, his involvement was not limited to a small amount of
heroin, as he had received five kilograms of heroin from his
father. Mangual contends there is no evidence he “ever denied the
conduct alleged or the relevant conduct,”5 and that the district
court’s determination he received five kilograms of heroin from his
father has “only minimal support in the record.” In spite of
Mangual’s assertion that he was not personally involved in heroin,
5
While Mangual cites to the Rule 11 hearing and his statement
that he had no exception to the Government’s factual proffer, he
fails to note his attorney’s subsequent objection in which he
informed the court that his client was “not prepared to say he was
involved in heroin.” When questioned further by the district court,
Mangual’s attorney stated that “[t]here may have been others in
this conspiracy . . . that were involved in heroin, but Mr. Mangual
is not prepared to say today that he personally was involved in
heroin.”
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the evidence presented at the sentencing hearing indicated that
Mangual’s father provided him with a sample of heroin,
approximately 1.5 grams, to test in order to determine its quality
before distribution. Mangual’s father would ultimately receive a
total of 14.5 kilograms of heroin during the relevant time period,
and his ledger indicated that a total of five kilograms were
delivered to Mangual. Therefore, in light of Mangual’s false
denials regarding his relevant conduct, we find the district court
did not clearly err in denying an adjustment for acceptance of
responsibility.
II
Having found no procedural errors, we next consider the
substantive reasonableness of the sentence. Gall, 128 S. Ct. at
597. “Substantive reasonableness review entails taking into
account the totality of the circumstances, including the extent of
any variance from the Guidelines range.” Pauley, 511 F.3d at 473.
While this court may presume a sentence within the Guidelines range
to be reasonable, we may not presume a sentence outside the range
to be unreasonable. Id. Moreover, we must give due deference to
the district court’s decision that the 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007) factors justify imposing a variant sentence and
to its determination regarding the extent of any variance. “Even
if we would have reached a different sentencing result on our own,
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this fact alone is insufficient to justify reversal of the district
court.” Id. at 474 (internal quotation marks and citation
omitted).
At sentencing, the district court held that the
Guidelines recommendation of a life sentence was appropriate.
Mangual contends the district court failed to consider the fact
that he had pled guilty to all charges and saved the Government
significant time and expense. However, a defendant’s timely guilty
plea is not a factor that is required to be considered under
§ 3553(a). The district court adequately stated its reasons for
imposing a life sentence, including the extremely serious nature of
the offense, the harm to society caused by the wide-ranging drug
conspiracy, Mangual’s significant criminal history, and the need to
afford adequate deterrence and protect the public from further
criminal offenses. Accordingly, because Mangual has failed to
overcome the presumptive reasonableness of his sentence, we find
the district court did not abuse its discretion in sentencing him
to life in prison.
III
Mangual also claims the district court violated his Sixth
Amendment rights by holding him responsible for drug amounts higher
than those set forth in the indictment, citing United States v.
Booker, 543 U.S. 220, 232 (2005). However, this argument is
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foreclosed by the remedial portion of Booker. 543 U.S. at 246.
This court has held that, after Booker, the sentencing court must
still calculate the appropriate advisory guidelines range by making
any necessary factual findings under a preponderance of the
evidence standard. See United States v. Battle, 499 F.3d 315, 322-
23 (4th Cir. 2007), cert. denied, 128 S. Ct. 1121 (2008); United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Accordingly,
this claim is meritless.
IV
Mangual’s final claim is the district court erred in
sentencing him pursuant to the enhanced penalty provisions under 21
U.S.C.A. § 841(b)(1)(A) because the Government failed to file the
required notice pursuant to 21 U.S.C. § 851. However, this claim
is patently frivolous. The required notice was filed on March 21,
2006, the day of the Rule 11 hearing, and at the beginning of the
plea hearing, the Government stated for the record that it had
filed a notice of its intent to seek an enhanced mandatory minimum
sentence. Furthermore, at the sentencing hearing, Mangual conceded
that he had received the notice, that he had been previously
incarcerated, and that there was no dispute on this issue.
Accordingly, we affirm Mangual’s sentence. We deny
Mangual’s motion to file a pro se supplemental brief. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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