Case: 17-40516 Document: 00514713504 Page: 1 Date Filed: 11/06/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-40516 United States Court of Appeals
Fifth Circuit
FILED
November 6, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Plaintiff–Appellee Clerk
v.
JORGE ERNESTO BLANCO-RODRIGUEZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-1083-1
Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:*
Jorge Ernesto Blanco-Rodriguez pleaded guilty to conspiracy to commit
wire fraud. On appeal, Blanco-Rodriguez challenges his sentence. He argues
that his counsel was ineffective for failing to advise him of the immigration
consequences of his guilty plea. He also challenges the district court’s
imposition of a three-level sentencing enhancement under U.S.S.G. § 3B1.1(b)
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-40516
for his role as a manager or supervisor in the underlying criminal activity. As
explained more fully below, we AFFIRM the district court’s sentence.
I.
Blanco-Rodriguez pleaded guilty to conspiracy to commit wire fraud.
The presentence report (“PSR”) recommended a four-level increase in Blanco-
Rodriguez’s offense level under U.S.S.G. § 3B1.1(a) for his role as an organizer
or leader in the conspiracy. In support of the enhancement, the PSR set forth
the following facts:
During the instant offense, the defendant’s role involved receiving
stolen credit/debit card information from unknown individuals in
Russia, Ukraine, Romania, and/or China from May 2011 to May
2015. After fraudulently receiving the account numbers, the
defendant sold the account information to co-conspirators in
exchange for financial gain. Mary Vaquera and other individuals
sent electronic payments to unknown coconspirators in Russia,
Ukraine, Romania, and/or China, and foreign coconspirators paid
the defendant $2 to $5 for each fraudulent account number he
disseminated during the offense. Investigators were able to
confirm the defendant’s involvement regarding 12,000 such
fraudulent access devices during the four-year period from May
2011 to May 2015. Furthermore, undercover investigators
purchased 250 stolen credit/debit account numbers from the
defendant from January 2015 [to] April 2015. Although the
confirmed fraud in this case affected at least 100 financial
institutions and exceeds $900,000, only 18 of the affected financial
institutions reported or claimed pecuniary losses, resulting in a
current total financial loss of $602,864.13.
Defense counsel filed written objections to the PSR, challenging the
recommendation that Blanco-Rodriguez receive the four-level enhancement
under § 3B1.1(a). Blanco-Rodriguez’s counsel argued that Blanco-Rodriguez
should have been given a four-level reduction in his offense level under
U.S.S.G. § 3B1.2 for being a minimal participant rather than a four-level
enhancement under § 3B1.1(a) for being an organizer or leader.
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At sentencing, the Government presented testimony from Secret Service
Special Agent Jose Obando, the lead investigator of the case. When questioned
by the district court about Blanco-Rodriguez’s role, Agent Obando stated, “I’d
be speculating a little bit, but he’s kind of more like maybe middle tier. He’s
kind of like -- he buys in bulk and then resells and makes profit.”
The district court initially stated that it considered Blanco-Rodriguez
“sort of a lone wolf,” but the Government argued that the evidence was to the
contrary. The Government maintained that Blanco-Rodriguez “would have
money sent in other people’s names from other countries which require[ed]
them to pick up the money, and then whatever portion that [Blanco-Rodriguez]
profit[ed] on w[ould] be sent to him.” According to the Government, “there
[were] more people involved and [Blanco-Rodriguez] caus[ed] their
involvement.”
Defense counsel responded that 12,000 credit or debit card accounts
constituted “a very small percentage” of the total data breach and that “almost
anyone can” do what Blanco-Rodriguez did because it is easy to obtain that
information on the Internet. Counsel further contended that Blanco-Rodriguez
was “just taking advantage of information that[] [was] available on the
Internet” and that he was entitled to a mitigating role reduction.
The district court disagreed that Blanco-Rodriguez was entitled to a
mitigating role reduction, but again described him as “somewhat of a lone
wolf.” In doing so, the district court explained that:
[Blanco-Rodriguez] knows how to access these counterfeit
numbers, he purchased some, he resells them, he gets paid. And
some of what he gets paid, I believe, my impression is some of this
is bought on credit. I get paid, you get paid. So he’s having money
deposited in accounts of people that he owes money to.
The district court ultimately decided that the four-level enhancement under
§ 3B1.1(a) was not warranted. Instead, the district court imposed a three-level
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enhancement under § 3B1.1(b), finding that Blanco-Rodriguez “was [a]
supervisor of . . . five or more” participants.
With a total offense level of 33 and a criminal history category of I,
Blanco-Rodriguez’s guidelines range was 135 to 168 months of imprisonment.
The district court sentenced Blanco-Rodriguez at the bottom of the guidelines
range to 135 months of imprisonment. We review the Appellant’s arguments
below.
II.
A.
We consider first Blanco-Rodriquez’s ineffective-assistance-of-counsel
claim. We observe that the favored forum for such a claim is a 28 U.S.C. § 2255
proceeding. 1 “When an ineffective-assistance claim is brought on direct appeal,
appellate counsel and the court must proceed on a trial record not developed
precisely for the object of litigating or preserving the claim.” 2 Thus, as a
general rule, we do not consider ineffective-assistance claims on direct appeal. 3
We take up “claims of inadequate representation on direct appeal only in rare
cases where the record” permits a fair evaluation of the claims. 4 A case falls
within the parameters of the general rule (against consideration on appeal)
when the record does not reveal the reasons for trial counsel’s decisions or shed
light on alternative strategies that might have been employed. 5
Here, Blanco-Rodriguez does not present any justification for an
“exception to [the] general rule of non-review” on direct appeal. 6 Accordingly,
1 Massaro v. United States, 538 U.S. 500, 504–09 (2003).
2 Id. at 504.
3 United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (noting that the record at
hand offered insufficient information concerning trial counsel’s motivations).
4 United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
5 United States v. Garcia, 567 F.3d 721, 729 (5th Cir. 2009) (labeling the ineffective
assistance claim premature).
6 United States v. Stevens, 487 F.3d 232, 245 (5th Cir. 2007).
4
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we decline to consider his ineffective-assistance-of-counsel argument on direct
appeal without prejudice to Blanco-Rodriguez’s right to assert it on collateral
review. 7
B.
With respect to Blanco-Rodriguez’s argument that the district court
erred in finding him to be a manager or supervisor under § 3B1.1(b) and
imposed a three-level enhancement, we review this factual finding for clear
error. 8 A factual finding is not clearly erroneous if it is plausible in light of the
record as a whole. 9 We will not deem a factual finding clearly erroneous unless
a review of the evidence leaves us with the “definite and firm conviction that a
mistake has been committed.” 10
Under § 3B1.1(b), a defendant’s base offense level may be increased three
levels “[i]f 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.” 11 To qualify for an adjustment under this section, “the
defendant must have been the . . . manager[] or supervisor of one or more other
participants.” 12 The commentary to the Sentencing Guidelines advises that an
upward departure may be warranted for a defendant who did not exercise
control over another participant but “nevertheless exercised management
responsibility over the property, assets, or activities of a criminal
7 See Isgar, 739 F.3d at 841.
8 See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).
9 Cisneros-Gutierrez, 517 F.3d at 764.
10 Rose, 449 F.3d at 633 (internal quotation marks and citation omitted).
11 See U.S.S.G. § 3B1.1(b).
12 See id., comment. (n.2).
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organization.” 13 We have approved the imposition of this enhancement under
the circumstances recited in the commentary. 14
The record supports the district court’s finding that Blanco-Rodriguez
was a manager or supervisor under this guideline. Blanco-Rodriguez set the
underlying criminal scheme in motion by purchasing the stolen credit card
numbers from his contacts in foreign countries. He then sold the card numbers
to his contacts in this country to use or to obtain retail merchandise. Blanco-
Rodriguez directed the buyers of these card numbers to wire money to
representatives of the original sellers of the stolen numbers who confirmed
payment to Blanco-Rodriguez. This suggests a finding that Blanco-Rodriguez
was a manager of the assets and activities of this criminal enterprise.
Accordingly, the district court did not clearly err in applying the § 3B1.1(b)
enhancement.
III.
Based on the foregoing reasons, we AFFIRM the district court’s sentence.
AFFIRMED.
13Id.
14See United States v. Delgado, 672 F.3d 320, 345 (5th Cir. 2012) (en banc); Rose, 449
F.3d at 633 & n.20; United States v. Lopez-Urbina, 434 F.3d 750, 767 (5th Cir. 2005).
6