United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3088
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Alejandro Manuel Bonilla-Filomeno, *
*
Appellant. *
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Submitted: January 13, 2009
Filed: September 1, 2009
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Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
The appellant, Alejandro Manuel Bonilla-Filomeno, challenges his conviction
following a jury trial for one count of knowingly and intentionally possessing with
intent to distribute 5 kilograms or more of a mixture or substance containing cocaine,
see 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1), and the 120-month sentence imposed
by the district court1 for that conviction. On appeal, Bonilla-Filomeno claims the
district court erred when it (1) denied his motion to dismiss on Speedy Trial Act
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
grounds, (2) imposed a two-level leader/organizer enhancement under the advisory
Sentencing Guidelines, and (3) denied his motion for safety valve relief under 18
U.S.C. § 3553(f). For the reasons explained below, we affirm.
I.
In late September or early October of 2007, John McManus, a police officer
with the City of St. Paul, Minnesota, received a telephone call from Pat Rademacher,
owner of Rademacher Trucking. Rademacher informed Officer McManus that his
company had been contracted to transfer an automobile from Phoenix, Arizona to
Omaha, Nebraska. The driver made several attempts to contact the person who was
to pick up the car, and, because the driver was unsuccessful, he brought the vehicle
to the company’s offices in St. Paul. Because Rademacher had assisted the police
with other matters, he was aware of the police department’s interest in the use of
transported vehicles to carry narcotics. Suspicious that the car might contain illegal
narcotics, Officer McManus had a narcotics-certified canine perform an exterior sniff
of the vehicle, and the canine gave a positive alert for the presence of narcotics in the
vehicle. Based on this information, Officer McManus secured a search warrant, and,
in the subsequent search, officers located eight bricks of cocaine in a hidden
compartment in the vehicle.
In the interim, Rademacher informed authorities that the trucking company had
located a contact person in Omaha to whom the vehicle could be delivered. A
decision was made to again attempt delivery of the vehicle. Officer McManus
reloaded the narcotics into the hidden compartment, and the vehicle was again taken
to Rademacher Trucking where it was loaded onto a trailer for delivery. Officers from
St. Paul, including Officer McManus, remained with the car as it traveled to Omaha.
Clifford Knutsen, the truck driver, contacted a “George Tapia” at a number provided
by Rademacher Trucking when he reached Omaha. In a conversation with this
person, which was conducted in English, Knutsen informed “George Tapia” that
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Knutsen would locate a safe location at which he could unload the car and then
contact him to come and pick up the vehicle. With the assistance of Omaha police,
Knutsen located a large hotel parking lot. Knutsen contacted “George Tapia” again
and gave him directions to the hotel parking lot. Knutsen told the person that he
needed to bring identification. While waiting, Knutsen unloaded the car from the
trailer. After unloading the car, Knutsen received a call from “George Tapia,” and
approximately 15 to 20 minutes later, a small Honda arrived. Two men exited the
Honda while the driver remained in the car. One of the two men who exited did not
speak English, however he did sign the Bill of Lading in order to take possession of
the car. That person was Jorge Ulloa-Tapia. At trial, Knutsen identified the other
person who exited the Honda as Bonilla-Filomeno, and Knutsen further testified that
Bonilla-Filomeno was the person with whom he had spoken on the telephone and who
had identified himself as “George Tapia.”
After Ulloa-Tapia signed the Bill of Lading, officers converged on the suspects
and arrested both Ulloa-Tapia and Bonilla-Filomeno. The driver of the green Honda
sped away and was pursued by the officers. He was later apprehended and identified
as Celestino Campos-Flores. After Bonilla-Filomeno was arrested, officers
discovered a cellular telephone in Bonilla-Filomeno’s pocket that he identified as
being his phone. This phone was assigned the number Knutsen had previously used
to contact “George Tapia.”
At trial, Ulloa-Tapia testified that he had met Bonilla-Filomeno, who he knew
as “Chilango,” in Phoenix, Arizona, seven days after Ulloa-Tapia illegally entered the
United States, that Bonilla-Filomeno offered to take Ulloa-Tapia to Nebraska where
he could seek work, and that Bonilla-Filomeno then offered to pay Ulloa-Tapia $300
if he would accompany Bonilla-Filomeno to pick up an automobile in Omaha and
allow Bonilla-Filomeno to use Ulloa-Tapia’s Mexican driver’s license to sign for the
vehicle. On the day that they were to pick up the vehicle, Bonilla-Filomeno and
Campos-Flores picked up Ulloa-Tapia, and, after Bonilla-Filomeno confirmed that
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Ulloa-Tapia had his identification with him, they drove to the location where the
vehicle was located. During the trip, Bonilla-Filomeno was speaking on a cellular
telephone in English, and Ulloa-Tapia, who does not speak English, did not
understand what Bonilla-Filomeno was saying. When they arrived at the parking lot,
Bonilla-Filomeno directed Ulloa-Tapia to sign for the car.
Campos-Flores also testified at trial. He stated that he owned a green Honda
Civic and that on October 4, 2007, Bonilla-Filomeno asked Campos-Flores to give
Bonilla-Filomeno and another man a ride to a hotel parking lot. During the trip,
Bonilla-Filomeno was talking on his cellular phone to someone in English. Campos-
Flores does not speak English and did not understand what Bonilla-Filomeno was
saying.
After Bonilla-Filomeno’s arraignment, trial was set for December 24, 2007.
Trial was not conducted on that date, however, and, on March 25, 2008, the
government moved for the setting of a specific trial date of April 14, 2008. The
government noted in its motion that Bonilla-Filomeno had no objections to the
motion. On April 22, 2008, the court entered an order setting the trial date for May
27, 2008. In that order, the court stated that the time between March 25 and May 27
was excluded under the Speedy Trial Act. Four days after the court’s order was
entered, Bonilla-Filomeno moved to dismiss the case on speedy trial grounds, arguing
that the government’s motion to set the trial for April 14 was not a motion to continue,
and it would be procedurally unfair to construe it as such because Bonilla-Filomeno
would have objected to such a motion on the basis of the Speedy Trial Act. On May
19, a magistrate judge2 conducted a hearing on the motion to dismiss and
recommended a finding that as of the date of the government’s motion to set a trial
date, only 59 days of the 70-day speedy trial period had elapsed. The district court
2
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.
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adopted the magistrate judge’s recommendations, except that the district court
calculated that 61 days had elapsed, and denied Bonilla-Filomeno’s motion to dismiss
on Speedy Trial Act grounds.
Following the two-day trial, a jury found Bonilla-Filomeno guilty of one count
of possession with intent to distribute more than five kilograms of cocaine. In
calculating Bonilla-Filomeno’s advisory Sentencing Guidelines range, the presentence
investigation report (PSR) recommended the application of a two-level enhancement
for being an organizer, leader, manager, or supervisor in the criminal activity. See
United States Sentencing Commission, Guidelines Manual, §3B1.1(c). Bonilla-
Filomeno objected to the application of the enhancement. The district court overruled
Bonilla-Filomeno’s objection and applied the enhancement, determining that, under
the Guidelines, the advisory sentencing range was 151 to 188 months of
imprisonment. After considering the factors found in 18 U.S.C. § 3553(a), the district
court imposed a 120-month sentence, the statutory minimum under section 841(b)(1).
The court noted that Bonilla-Filomeno was not entitled to safety-valve relief under 18
U.S.C. § 3553(f) because he was an organizer, leader, manager, or supervisor under
the Guidelines.
II.
On appeal, Bonilla-Filomeno raises three issues. First, he argues that the
district court should have dismissed the indictment because of a Speedy Trial Act
violation. Second, he claims that the district court erred in imposing the role-in-the-
offense enhancement. Third, he argues that he is entitled to safety-valve relief under
section 3553(f).
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A.
The first issue we consider is whether there was a violation of the Speedy Trial
Act, 18 U.S.C. §§ 3161-74. “We review the district court’s findings of fact for clear
error but review its legal conclusions de novo.” United States v. Williams, 557 F.3d
943, 948 (8th Cir. 2009). “The [Speedy Trial] Act requires that trial begin within 70
days after a defendant is charged or makes an initial appearance unless the running of
the time is stopped for reasons set out in the statute.” United States v. Lucas, 499 F.3d
769, 782 (8th Cir. 2007) (en banc), cert. denied, 128 S. Ct. 1702 (2008). “Periods of
delay caused by pretrial motions, whether filed by the defendant, codefendants, or the
prosecution, are excluded from the calculation of this 70-day time frame, as are
continuances granted by the court in order to best serve ‘the ends of justice.’” United
States v. Shepard, 462 F.3d 847, 863 (8th Cir. 2006) (citations omitted).
There is no factual dispute in this matter. Both parties have accepted the district
court’s findings that as of March 25, 2008, 61 days of Bonilla-Filomeno’s 70-day
Speedy Trial Act time had passed. On arraignment, the district court had established
a trial date of December 24, 2007. Due to pretrial motions, discovery, and the actions
of the codefendants, the trial did not occur on that date, however the district court did
not immediately establish a new trial date. On March 25, 2008, the government filed
a motion to set a specific trial date of April 14, 2008. The government noted in its
motion that Bonilla-Filomeno had no objection to its request. The district court did
not grant the motion until April 22, at which time trial was set for May 27. In the
order, the district court stated that the May 27 setting of the trial would permit “[t]he
parties . . . time to pursue plea negotiations or prepare for trial” and, therefore, “the
ends of justice will be served by continuing this case and outweigh the interests of the
public and defendant in a speedy trial.” (Order, April 22, 2008.) Thus, the district
court excluded the time from March 25 to May 27 for purposes of calculating the time
under the Speedy Trial Act.
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Before the district court, Bonilla-Filomeno then filed a Motion to Dismiss his
indictment on Speedy Trial Act grounds, arguing that treatment of the government’s
motion to set a trial date as a motion to continue “would be procedurally unfair” and
that excluding the time from March 25 to May 27 would not serve the ends of justice.
Rejecting these arguments, the district court denied Bonilla-Filomeno’s motion to
dismiss. On appeal, Bonilla-Filomeno raises the same arguments as to his Speedy
Trial Act claim.
The Speedy Trial Act provides:
[a]ny period of delay resulting from a continuance granted by any judge
on his own motion or . . . at the request of the attorney for the
Government, if the judge granted such continuance on the basis of his
findings that the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy trial
shall be excluded for the purposes of calculating the Speedy Trial Act time. 18 U.S.C.
§ 3161(h)(7)(A). However,
[n]o such period of delay resulting from a continuance granted by the
court . . . shall be excludable . . . unless the court sets forth, in the record
of the case, either orally or in writing, its reasons for finding that the
ends of justice served by the granting of such continuance outweigh the
best interests of the public and the defendant in a speedy trial.
Id.
The statute then provides specific factors that, “among others,” the district court
should consider in determining whether to grant a continuance. Examples of such
factors include: need for adequate preparation in unusual or complex cases, delays in
filing the indictment, allowing the defendant a reasonable time to obtain counsel,
allowing for the continuity of counsel, and permitting the defendant and the
government reasonable time for trial preparations. 18 U.S.C. § 3161(h)(7)(B)(ii)-(iv).
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We hold that the district court did not err in construing the government’s March
22 motion to set a trial date as a motion to continue. Admittedly, the government’s
motion to set a trial date was not styled as a motion to continue, nor did it contain the
word “continue.” However, as the trial originally set for December 24, 2007, had not
taken place, the case was subject to being reset for trial at any time. Accordingly, the
clear objective of the government’s motion was to assure that the trial would not occur
prior to April 14, 2008, the date it proposed for trial, and secure a continuance of the
proceeding until that date. The nature of the motion was recognized by the district
court in its order granting the motion in which the court stated that “the ends of justice
will be served by continuing the case.” (Order, April 22, 2008.) We have previously
recognized that, where a future trial date has not been set, a government motion to set
a trial date may be treated by the district court as a motion to continue. See United
States v. McKay, 431 F.3d 1085, 1091 (8th Cir. 2005). It is disingenuous for Bonilla-
Filomeno to assert on appeal that the government’s motion did not constitute a motion
to continue, particularly where he expressly authorized the government to represent
to the court that he had no objection to the setting of a continued trial date.3
Next we address whether the district court set forth “its reasons for finding that
the ends of justice served by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).
Although not providing extensive elaboration, the court did state in its order setting
the trial date that the continuance would permit Bonilla-Filomeno and the government
“time to pursue plea negotiations or prepare for trial.” (Order, April 22, 2008.) Such
a reason references one factor that district courts should consider before granting a
continuance: “Whether the failure to grant such a continuance . . . would deny
counsel for the defendant or the attorney for the Government the reasonable time
necessary for effective preparation . . . .” 18 U.S.C. § 3161(h)(7)(B)(iv); see Lucas,
3
We observe that disputes of this nature could be minimized by the parties
squarely identifying a request that a trial be delayed until a future date as what it is:
a motion to continue.
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499 F.3d at 782-83 (ends-of-justice finding was sufficient, even though it could have
been more detailed, where it specifically referenced one of the factors to consider
when granting a motion to continue). Accordingly, we agree with the district court
that there is no Speedy Trial Act violation in this matter.
B.
Bonilla-Filomeno further contends that he should not have received an
enhancement for being a leader or organizer under Guidelines section 3B1.1(c). “We
review the district court’s factual findings for clear error, and its application of the
guidelines de novo.” United States v. Blankenship, 552 F.3d 703, 704 (8th Cir. 2009).
Under section 3B1.1(c), a criminal defendant’s offense level is increased by two levels
“[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal
activity [not involving five or more participants].” USSG §3B1.1(c). Courts are to
construe the terms “organizer,” “leader,” “manager,” and “supervisor” broadly, see
United States v. Brown, 539 F.3d 835, 838 (8th Cir.), cert. denied, 129 S. Ct. 658
(2008), and are guided by the application note which explains that courts should
consider factors such as
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).
In this case, the district court heard testimony from two coconspirators, Ulloa-
Tapia and Campos-Flora, who testified that Bonilla-Filomeno had recruited them to
assist him in picking up the vehicle. They both testified that Bonilla-Filomeno, who
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was the only one of the three who spoke English, coordinated the pick up with the
transportation company. Ulloa-Tapia testified that Bonilla-Filomeno brought him
from Arizona to Nebraska and offered to pay him $300 to sign for the vehicle.
Further, Knutsen, the truck driver who delivered the car, testified that he recognized
Bonilla-Filomeno’s voice as that of the person who identified himself on the phone
as “George Tapia,” who was coordinating the delivery and was supposed to sign for
the vehicle. Finally, officers located the cellular telephone from which calls were
made to the trucking company on Bonilla-Filomeno’s person, and Bonilla-Filomeno
identified the phone as his.
On appeal, Bonilla-Filomeno attempts to discredit the testimony and evidence
presented at trial, specifically citing to what he contends are discrepancies and
inconsistencies. However, in light of the trial evidence, especially concerning
Bonilla-Filomeno’s role in recruiting Ulloa-Tapia and Campos-Flores, we cannot say
that the district court clearly erred in finding that Bonilla-Filomeno was leader,
organizer, or manager of this criminal operation. Accordingly, the district court
properly applied the enhancement.
C.
In light of our determination that the district court correctly found Bonilla-
Filomeno to be a leader or organizer, it follows that the district court did not clearly
err in determining that Bonilla-Filomeno is ineligible for safety-valve relief. See
United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005) (en banc) (clear
error review of district court’s findings regarding whether a defendant is eligible for
safety valve relief). Safety-valve relief allows the district court to disregard an
applicable statutory minimum if certain requirements are met. 18 U.S.C. § 3553(f).
One of those requirements is that a defendant “not [be] an organizer, leader, manager,
or supervisor of others in the offense.” Id. § 3553(f)(4). Because we affirm the district
court’s application of the role-in-the-offense enhancement, Bonilla-Filomeno does not
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meet the qualifications for safety-valve relief, and we must also affirm the district
court’s denial of such relief.
IV.
Accordingly, we affirm Bonilla-Filomeno’s conviction and sentence.
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