F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 3 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 96-6361
SANTIAGO CRUZ CAMACHO,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA.
(D.C. No. CR-96-30-T)
M. Jay Farber, Assistant United States Attorney (Patrick M. Ryan, United States Attorney
with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
David T. McKenzie, Oklahoma City, Oklahoma, for Defendant-Appellant.
Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.
___________________________________
Defendant Santiago Cruz Camacho pled guilty to one count of conspiracy to
possess with intent to distribute methamphetamine, three counts of possession with intent
to distribute methamphetamine, eight counts of distribution of methamphetamine, and
two counts of money laundering, in respective violation of 21 U.S.C. §§ 846, 841(a)(1)
and 18 U.S.C. § 1956(a)(1). The district court sentenced Defendant to concurrent
sentences of 292 months imprisonment for the drug offenses and 240 months
imprisonment for the money laundering offenses. On appeal, Defendant attacks only his
sentences, arguing that the district court erroneously: (1) enhanced his sentence four
levels on the basis that he was a leader and organizer of a conspiracy involving five or
more participants; (2) calculated his base sentence level by improperly determining the
amount of methamphetamine attributable to him; and (3) failed to award him a two-level
sentence reduction for acceptance of responsibility. Our jurisdiction arises under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
I.
In June 1995, a confidential informant notified the Drug Enforcement Agency of a
large-scale drug conspiracy in Chickasha, Oklahoma. The informant’s tip led to further
investigation which indicated that Defendant and Jose Hernandez planned to bring large
amounts of methamphetamine from California to Chickasha for distribution throughout
the area. Under the plan, Hernandez provided the methamphetamine and Defendant
arranged to transport it to Chickasha. Notably, Defendant did not carry the
methamphetamine himself. Instead, he recruited and directed others to transport the
methamphetamine to Chickasha, where upon arrival he distributed it to various dealers.
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Between December 1994 and January 1995, the conspiracy1 led and organized by
Defendant and Hernandez distributed approximately twelve kilograms of
methamphetamine. Defendant’s role in the conspiracy ended, however, when en route to
Chickasha from California, Arizona law enforcement officials stopped him for a routine
traffic violation and discovered one pound of methamphetamine in his vehicle.
Subsequently, the government named Defendant and numerous co-conspirators in the
indictment which ultimately led to the sentences Defendant now appeals.
II.
A.
U.S.S.G. § 3B1.1(a) provides for a four-level enhancement where “the defendant
was an organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive.” Defendant argues that the district court erroneously enhanced
his sentence four levels pursuant to § 3B1.1(a). Specifically, Defendant maintains that
enhancement under § 3B1.1(a) is appropriate only where the leader or organizer controls
at least five co-conspirators. Defendant contends that the evidence before the court
shows, at most, that he controlled no more than one co-conspirator and that his
organization “was nothing more than a hit or miss operation involving large amounts of
1
Defendant and Hernandez involved numerous individuals in their scheme
including: Mario Salado, Priscilla Gonzales, Jeff Manning, Nicky Jarnagin, Carie Bolin,
Lillian Bean, William Smith, Allen Day, Jan Kennedy, Scott Morgan, Todd Furra, Al
Hooper, Reford Alcorn, Kim Hurd, Jimmy Wise, Jesus Navidad, and Miguel Nava.
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methamphetamine.” Therefore, he asserts that his sentence cannot be enhanced pursuant
to § 3B1.1(a). We disagree.
The parties’ briefs indicate confusion over whether we review the district court’s
finding that Defendant is an organizer or leader under § 3B1.1(a) de novo or for clear
error. Indeed, a review of our precedent reveals cases supporting either position. See
United States v. Yarnell, 129 F.3d 1127, 1138 (10th Cir. 1997). For example, we have
stated that a district court’s conclusion that a defendant is a leader or organizer under
§ 3B1.1(a) is primarily legal, and therefore reviewed de novo. United States v. Albers,
93 F.3d 1469, 1487 (10th Cir. 1996) (emphasis added) (citing United States v. Brown,
995 F.2d 1493, 1501 (10th Cir. 1993) (reciting standard of review in relation to
conclusion that defendant was supervisor under § 3B1.1(b)). On the other hand, we have
held that the “sentencing court’s determination that the defendant was an organizer [under
§ 3B1.1(a)] is a factual finding subject to the clearly erroneous standard of review.”
United States v. Levine, 970 F.2d 681, 691 (10th Cir. 1992) (emphasis added); accord
United States v. Owens, 70 F.3d 1118, 1127 (10th Cir. 1995); United States v. Knox, 124
F.3d 1360, 1365 (10th Cir. 1997). In light of this apparent conflict, we must determine
which line of precedent controls our review in this case.
We have long reviewed sentencing decisions based on a defendant’s role in a
criminal enterprise under § 3B1.1 for clear error with respect to factual findings and de
novo with respect to legal conclusions. E.g. United States v. Baez-Acuna, 54 F.3d 634,
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638 (10th Cir. 1995) (Seymour, C.J.). The above cases are in accord with this general
principle. The conflict between the two lines of precedent arises over whether a district
court’s determination that a defendant is a leader or organizer under § 3B1.1(a) is
primarily legal or primarily factual. Although we recognize that the four-level
enhancement provided for by § 3B1.1(a) is severe and deserves an appropriate level of
scrutiny, we believe the role of a defendant as a leader or organizer is “among the
sophisticated factual determinations a district court makes which depend upon an
assessment of the broad context of the crime.” United States v. Valencia, 44 F.3d 269,
272 (5th Cir. 1995). Therefore, we adhere to our earlier line of cases and review the
district court’s determination that Defendant was an organizer or leader of a criminal
activity involving five or more persons for clear error.2
The standard of review we restate today is in accord with both the guidelines
mandate that “[t]he court of appeals . . . shall accept the findings of fact of the district
court unless they are clearly erroneous and shall give due deference to the district court’s
application of the guidelines to the facts,” see 18 U.S.C. § 3742(e), and the standard
2
Moreover, even if we believed the district court’s conclusion is properly
reviewed de novo, we are bound by prior panel decisions in the absence of en banc
reconsideration or a supervening Supreme Court decision. Haynes v. Williams, 88 F.3d
898, 901 n.4 (10th Cir. 1996). “A pertinent corollary to this principle is that when faced
with an intra-circuit conflict, a panel should follow earlier, settled precedent over a
subsequent deviation therefrom.” Id. The cases holding that we review the district
court’s conclusion that a defendant is a leader or organizer for clear error predate the
cases holding that our review is de novo. Thus, we are bound to review for clear error
regardless of which standard proves to be the wiser.
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applied by a majority of the circuits. See United States v. Graciani, 61 F.3d 70, 75 (1st
Cir. 1995) (holding that the district court’s determination that defendant is leader or
organizer is necessarily fact specific and is therefore reviewed for clear error.); United
States v. Magana, 118 F.3d 1173, 1203 (7th Cir. 1997); United States v. Bueno-Sierra, 99
F.3d 375, 380 (11th Cir. 1996); United States v. Haun, 90 F.3d 1096, 1102 (6th Cir.
1996); United States v. Camper, 66 F.3d 229, 231 (9th Cir. 1995); United States v. Logan,
54 F.3d 452, 456 (8th Cir. 1995); United States v. Ronning, 47 F.3d 710, 711 (5th Cir.
1995); United States v. Richardson, 939 F.2d 135, 138 (4th Cir. 1991); but see United
States v. Wisniewski, 121 F.3d 54, 57-58 (2d Cir. 1997) (holding that district court’s
conclusion that defendant is not a manager, supervisor, leader, or organizer involves legal
interpretation of sentencing guidelines and is therefore reviewed de novo.).
The burden is on the government to prove, by a preponderance of the evidence, the
facts necessary to establish a defendant’s leadership role. United States v. Torres, 53 F.3d
1129, 1142 (10th Cir. 1995). In determining whether the government has proven that a
defendant is a leader or organizer, a court may consider, inter alia, “the exercise of
decision making authority, the nature of participation in the commission of the offense,
the recruitment of accomplices . . . the degree of participation in planning or organizing
the offense . . . and the degree of control and authority exercised over others.” U.S.S.G. §
3B1.1(a), comment. (n. 4). The government does not have to prove that defendant
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controlled five or more participants.3 Instead, it must prove that five persons participated
in the criminal venture, and that Defendant exercised leadership control over at least one
person. United States v. Rodriguez, 112 F.3d 374, 377 (8th Cir. 1997); United States v.
Valencia, 44 F.3d 269, 272 (5th Cir. 1995); United States v. Dota, 33 F.3d 1179, 1189
(9th Cir. 1994). Because the criminal enterprise in this case clearly involved more than
five persons, if Defendant exercised control consistent with his leadership role over at
least one other participant, the district court’s enhancement must stand.
The record overflows with evidence demonstrating Defendant’s leadership role
over Mario Salado. Defendant recruited Salado, he directed his activities, he paid him,
and he acknowledged before the district court that Salado was his employee. The record
also supports the district court’s finding that Defendant controlled Jesus Navidad, Miguel
Nava, and Jan Kennedy. The government produced testimony which showed that
Defendant recruited Navidad, Nava, and Kennedy and directed them to transport
methamphetamine in furtherance of the conspiracy. The record further supports the
3
In United States v. Reid, 911 F.2d 1456, 1465 n. 8 (10th Cir. 1990), we
opined that “application of § 3B1.1(a) requires some control, directly or indirectly, over
the five participants if the criminal activity is not ‘otherwise extensive’”. In 1993, the
Sentencing Commission added commentary note 2 to § 3B1.1. The note reads in relevant
part:“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. . .” U.S.S.G.
§ 3B1.1(a), comment. (n. 2) (emphasis added). In light of this substantive change to the
guidelines, we believe our language in Reid, which was proper in regards to the
guidelines in place at that time, is no longer good law. See Stinson v. United States, 508
U.S. 36, 42-43 (1993) (commentary to sentencing guideline, unless inconsistent with
plain language of the guideline, is binding on federal courts.).
7
government’s position that Defendant exercised a leadership role over Jeff Manning.
Defendant directed Manning to arrange for his lodging and to pick him up at the airport
when he visited Chickasha. Moreover, Defendant arranged for Manning to pick-up a
quantity of methamphetamine in California and instructed him on how to obtain the drugs
from the source. Finally, the evidence before the district court demonstrates that
Defendant exercised a leadership role over Lillian Bean. At Defendant’s direction, Bean
removed drugs taped to Mario Salado’s body, she picked Defendant and Salado up from
the airport, she received shipments of methamphetamine for Defendant, she stored
methamphetamine belonging to Defendant in her home, and she assisted Defendant in
weighing shipments of methamphetamine. The government was bound to prove that five
or more people participated in the criminal enterprise and that Defendant exercised a
leadership role over at least one of them. It clearly met this burden.
B.
Defendant next argues that the district court incorrectly computed the amount of
methamphetamine attributable to him when imposing his sentence. Specifically,
Defendant complains that the evidence before the district court showed that less than ten
kilograms of methamphetamine were attributable to him. Thus, he argues that the
evidence is insufficient to support the category 36 sentencing level imposed by the district
court. We disagree.
We review the district court’s drug quantity calculation for clear error, and will not
8
disturb it absent no support in the record, or where upon review of the evidence we are
firmly convinced that the district court made an error. United States v. Edwards, 69 F.3d
419, 438 (10th Cir. 1995). In calculating a defendant’s base sentence level for
participation in a drug conspiracy, the district court is not limited to the amount with
which the defendant dealt personally. Id. Instead, the court may sentence the defendant
based on the total amount of drugs “which he reasonably foresaw or which fell within the
scope of his particular agreement with the conspirators.” United States v. Ivy, 83 F.3d
1266, 1289 (10th Cir. 1996) (internal quotations omitted). The government must prove
the quantities of drugs for sentencing purposes by a preponderance of the evidence and
the evidence relied upon must possess a minimum indicia of reliability. Edwards, 69 F.3d
at 438.
Testimony at the sentencing hearing regarding the amount of drugs attributable to
Defendant varied widely. Defendant testified that he was involved in distributing only
nine and one-half to ten pounds of methamphetamine. Government witnesses, however
testified that approximately twenty-seven pounds were properly attributable to Defendant.
After hearing the testimony and making adjustments for the witness’ credibility, the
district court attributed approximately twelve kilograms of methamphetamine to
Defendant. The record supports the district court’s finding. Accordingly, we reject
Defendant’s argument that the finding was clearly erroneous.
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C.
Attempting to distinguish controlling Tenth Circuit precedent and relying largely
on a case which an en banc Eleventh Circuit has vacated and decided contrary to his
position4, Defendant’s final argument is that the district court erroneously refused to
reduce his sentence two levels for acceptance of responsibility pursuant to U.S.S.G.
§ 3E1.1(a). The district court noted that Defendant admitted the facts underlying the
crimes charged by the government. The district court refused to reduce Defendant’s
sentence, however, because it found that Defendant “falsely denied and frivolously
contested relevant conduct which the court found to be true.” Defendant maintains that
the district court’s finding is clearly erroneous. We disagree.
The district court has broad discretion to determine whether to award a sentence
reduction pursuant to § 3E1.1(a), and we will not disturb its decision absent clearly
erroneous findings. United States v. Gassaway, 81 F.3d 920, 922 (10th Cir. 1996).
Under U.S.S.G. § 3E1.1(a), a district court should reduce a defendant’s sentence by two
levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense
. . . .” Thus, when a defendant admits the facts necessary to support his conviction, he
should generally be awarded a reduction. Where a defendant acts in a manner
inconsistent with acceptance of responsibility, however, the district court may properly
4
See United States v. Smith, 106 F.3d 350, 351, vacated 112 F.3d 473, on
reh’g en banc, 127 F.3d 987 (11th Cir. 1997).
10
refuse to reduce his sentence. United States v. Contreras, 59 F.3d 1038, 1040-41 (10th
Cir. 1995). A “defendant who falsely denies or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner inconsistent with acceptance of
responsibility.” Id. (internal quotations omitted).
The district court found that the “Government proved by a preponderance of the
evidence that defendant was accountable for approximately twelve kilograms of
methamphetamine.” Contrary to the government’s proof, Defendant testified that he was
responsible for only four or five kilograms of methamphetamine. The district court
specifically found that Defendant’s testimony was not credible and that he “falsely denied
and frivolously contested” the amount of drugs attributable to him. Based on the record
before us, we conclude that Defendant significantly understated the amount of drugs
properly attributable to him. Accordingly, the district court committed no clear error by
refusing to reduce his sentence two levels pursuant to § 3E1.1(a).
AFFIRMED.
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