IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________
No. 96-20390
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO GIRALDO,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________
April 11, 1997
Before JOLLY, JONES, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Carlos Alberto Giraldo1 appeals his
sentence, challenging the district court’s upward adjustment to his
offense level for his role as an “organizer,” pursuant to United
States Sentencing Guideline (U.S.S.G.) §3B1.1. Concluding that the
district court reached the right result but for the wrong reasons,
we affirm.
I.
FACTS AND PROCEEDINGS
Giraldo’s conviction stems from his participation in a drug
transaction staged by the Drug Enforcement Administration (DEA) in
1
Giraldo’s judgment of conviction identifies him by his alias,
Jouquin Rodriguez; however, the district court subsequently ordered
him to use the name Giraldo and to make any future filings in that
name.
connection with its investigation of the Alejandro Bustamante
organization, a Colombian drug trafficking group attempting to
deliver cocaine into the United States. The investigation began
when an undercover cooperating individual (the CI) arranged for DEA
agent William Snyder to meet organization insiders, co-defendants
Edjar de Jesus Alvarez and Diego Fernando Mejia. Posing as the
“contact man” who would transport and store the deliveries of
cocaine, Snyder discussed doing a cocaine deal with Alvarez and
Mejia. After some hesitation, Alvarez and Mejia agreed to pay
Snyder up front for his services.
When a prior commitment prevented Snyder from completing the
investigation, another DEA agent, Miguel Villafranca, continued the
negotiations with Alvarez and Mejia. Villafranca and the CI met
Mejia and Alvarez in a parking lot where Mejia and Alvarez
inspected approximately one hundred kilograms of cocaine that
Villafranca had brought in the trunk of his car. Giraldo was not
present.
Several days later, Villafranca and the CI met Mejia, Alvarez,
and —— this time —— Giraldo in another parking lot for a second
inspection. While Giraldo made a phone call to persons whom agents
suspected were money suppliers, Alvarez explained that Giraldo
would pick up the cocaine after Alvarez paid the money. Mejia and
the CI then got into the back seat of Villafranca’s car, and Mejia
inspected more cocaine samples. Another meeting was arranged for
later that afternoon at a Captain Benny’s restaurant, and the
defendants agreed to bring a vehicle containing $200,000 in
2
exchange for approximately fifty-seven kilograms of cocaine. The
defendants drove away followed by surveillance agents who saw
Giraldo get out of the car at several locations to make more
telephone calls.
At Captain Benny’s, Villafranca was finally introduced to
Giraldo. Alvarez gave Villafranca the keys to a Nissan Maxima with
the money in the trunk. Alvarez wanted Giraldo or Mejia to go with
Villafranca to pick up the cocaine but agreed instead to let the CI
remain behind to ensure Villafranca’s return.
Villafranca drove to the DEA offices and counted the money,
which came up short. He loaded fifty kilograms of cocaine into the
car and returned to Captain Benny’s. As he approached the
restaurant, the CI motioned for him to go to the Sheraton Grand
Hotel across the street. In the hotel lobby, Villafranca asked
Alvarez about the shortage in the money. Alvarez responded by
contacting Giraldo and Mejia at Captain Benny’s and telling them to
bring the rest of the money. As Giraldo and Mejia attempted to
leave Captain Benny’s, they were arrested. Other DEA agents
arrested Alvarez at the hotel.
A jury convicted Giraldo of one count of conspiracy to possess
with intent to distribute more than five kilograms of cocaine,
pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and one
count of aiding and abetting in an attempt to possess with intent
to distribute more than five kilograms of cocaine, pursuant to 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 2.
According to the Presentencing Report (PSR) prepared by the
3
probation department, Giraldo admitted to the probation officer
that he had obtained the money that was used to complete the drug
transaction. Specifically, the PSR stated that (1) Giraldo had
contacted an individual known to be involved in illegal activities,
(2) that individual did not want to become personally involved in
the transaction, so he gave Giraldo a beeper number for another
individual, and (3) the second individual delivered the money to
Giraldo, who then provided it for the drug transaction. The PSR
recommended a two level increase in Giraldo’s offense level for his
role as an “organizer [who] significantly influenced the outcome of
the criminal activities,” based on his admission that he obtained
the $180,000 that completed the drug transaction.
At the sentencing hearing, the district court adopted the PSR
in full, stating that “[y]our position in this transaction clearly
makes you an organizer, and your connection to the money source
makes that obvious.” The district court imposed a two level
increase in Giraldo’s offense level for his role as an organizer,
pursuant to U.S.S.G. §3B1.1(c), and sentenced him to concurrent
292-month terms of imprisonment and concurrent five-year terms of
supervised release. Giraldo timely appealed his sentence.
II.
ANALYSIS
A. STANDARD OF REVIEW
The district court’s determination that a defendant is a
U.S.S.G. §3B1.1 organizer is a factual finding which this court
4
reviews for clear error.2 A factual finding is not clearly
erroneous if it is plausible in light of the record read as a
whole.3 This court reviews a sentencing court’s application of the
guidelines de novo.4
B. APPLICABLE LAW
An adjustment to the offense level may be made based on the
role the defendant played in committing the offense.5 A two level
increase is warranted “[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity” that involved
fewer than five participants.6 An application note added to this
section in 1993 provides:
To qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager,
or supervisor of one of more other participants. An
upward departure may be warranted, however, in the case
of a defendant who did not organize, lead, manage, or
supervise another participant, but who nevertheless
exercised management responsibility over the property,
assets, or activities of a criminal organization.7
Although Giraldo was sentenced before the effective date of the
amendment, this court may consider the amendment because it was
2
United States v. Ronning, 47 F.3d 710, 711 (5th Cir.
1995)(citing United States v. Valencia, 44 F.3d 269, 272 (5th Cir.
1995)).
3
Ronning, 47 F.3d at 711; Valencia, 44 F.3d at 272.
4
United States v. Gross, 26 F.3d 552, 554 (5th Cir. 1994).
5
U.S.S.G. Chapter 3, Part B, Introductory Commentary (1995).
6
U.S.S.G. §3B1.1(c) (1995).
7
U.S.S.G. §3B1.1, Application Note 2 (1995)(emphasis added).
See also U.S.S.G. Amendment 500 (1993).
5
intended to clarify the application of a guideline.8
C. DID THE DISTRICT COURT ERR IN IMPOSING THE TWO LEVEL ADJUSTMENT?
As Giraldo offered no rebuttal evidence to contest the facts
contained in the PSR, the district court properly accepted them as
true and so must we.9 The PSR recited that:
[Giraldo] was functioning on the periphery of this drug
conspiracy. However, in [his] statement to the probation
officer relative to his role, he admittedly obtained the
$180,000 that completed the drug transaction. Without
the recruitment of accomplices by [Giraldo] relative to
the $180,000, the drug purchase could not have been
completed. Thus, based on the statement of [Giraldo], a
two level increase is applied for his aggravating role in
the offense, as the defendant is considered an organizer,
whose role significantly influence the outcome of the
criminal activities.
Adopting the PSR in full, the district court found that Giraldo was
an organizer, based on his admission that he obtained the money to
complete the drug transaction, and applied an upward adjustment to
his sentence.
The government argues that the district court properly
adjusted Giraldo’s offense level, insisting that even if Giraldo
did not organize other criminal participants, he may still be
considered an organizer for purposes of an adjustment if he
exercised management responsibility over a criminal organization’s
8
Gross, 26 F.3d at 555.
9
The PSR generally bears sufficient indicia of reliability,
and the district court may rely on it when making the factual
determinations required by the guidelines. United States v. Vital,
68 F.3d 114, 120 (5th Cir. 1995). The district court may adopt
facts in the PSR without further inquiry if they have an adequate
evidentiary basis and the defendant does not present rebuttal
evidence. United States v. Valencia, 44 F.3d 269, 274 (5th Cir.
1995).
6
property, assets, or activities (“asset management exception”). We
disagree.
In United States v. Jobe10 we made clear that the asset
management exception applies only when the district court makes an
upward departure from the sentencing range and not when it makes an
upward adjustment to the offense level.11 Indeed, the express
language of the subject application note draws this distinction.
Insofar as the district court relied on the asset management
exception to make an upward adjustment to Giraldo’s offense level,
it misapplied the guidelines. That exception clearly applies to an
upward departure only. The PSR expressly concludes that there were
“no aggravating or mitigating circumstances that would merit
consideration for a departure in this case.”
Nevertheless, we decline to vacate the district court’s
sentence, as we can say with assurance that the district court
would have imposed an identical sentence even without relying on
the asset management exception.12 The district court’s finding that
10
101 F.3d 1046 (5th Cir. 1996).
11
Id. at 1068 (when the district court does not order an upward
departure, the asset management exception is unavailable to sustain
the sentence enhancement on appeal). See also United States v.
Greenfield, 44 F.3d 1141, 1146 (2d Cir. 1995)(“Thus, by negative
implication, the Application Note seems clearly to preclude
management responsibility over property, assets, or activities as
the basis for an enhancement under §3B1.1(c).”)(emphasis in
original).
12
See Williams v. United States, 503 U.S. 193, 203, 112 S. Ct.
1112 (1992)(“[O]nce the court of appeals has decided that the
district court misapplied the Guidelines, a remand is appropriate
unless the reviewing court concludes, on the record as a whole,
that the error was harmless, i.e., that the error did not affect
the district court’s selection of the sentence imposed.”). See
7
Giraldo was a §3B1.1(c) organizer was not clearly erroneous. He
was an organizer, not of assets, but of other criminal
participants. The PSR contained Giraldo’s admission that he
recruited the money suppliers for the drug transaction.
Furthermore, the application notes specifically instruct us to
consider the recruitment of accomplices in determining whether the
defendant was an organizer.13 As such, Giraldo cannot be heard to
complain that he was not an organizer, and we hold that the
district court’s two level upward adjustment in Giraldo’s offense
level was lawful.
III.
CONCLUSION
For the foregoing reasons, Giraldo’s sentence is
AFFIRMED.
also United States v. Bryant, 991 F.2d 171, 178 n.9 (5th Cir.
1993); United States v. Elwood, 999 F.2d 814, 818 n.18 (5th Cir.
1993); and United States v. Salazar, 961 F.2d 62, 64 (5th Cir.
1992). In addition, when the judgment of the district court is
correct, this court may affirm for reasons not given by the
district court and not advanced to it. Laird v. Shell Oil Co., 770
F.2d 508, 511 (5th Cir. 1985).
13
U.S.S.G. §3B1.1, Application Note 4 (1995).
8