United States v. Rubio-Sepulveda

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS July 24, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 18-1055
v. (D.C. No. 1:14-CR-00144-CMA-5)
(D. Colo.)
PAUL RUBIO-SEPULVEDA, a/k/a
Pelon,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HOLMES, McKAY, and KELLY, Circuit Judges.

Defendant-appellant Paul Rubio-Sepulveda appeals from the sentence he

received after pleading guilty to two counts relating to his role in a drug and

money-laundering conspiracy. He argues that the district court procedurally

erred in applying a four-level “organizer or leader” enhancement pursuant to

§ 3B1.1(a) of the United States Sentencing Guidelines (“U.S.S.G.” or

“Guidelines”), that his sentence was substantively unreasonable, and that the

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
district court erred in proceeding with his sentencing hearing even though his

counsel had stated that she was not ready. For the reasons explained below, we

conclude that the district court clearly erred in applying the § 3B1.1(a)

enhancement in computing Mr. Rubio-Sepulveda’s sentence. On this basis,

exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse

and remand for resentencing.

I

In September 2017, Mr. Rubio-Sepulveda pleaded guilty to two counts

relating to his involvement in a drug and money-laundering conspiracy. 1 Prior to

sentencing, he objected to the recommendation of the presentence report

(“PSR”) 2 that he should receive a four-level sentencing enhancement under

U.S.S.G. § 3B1.1(a) for being an “organizer or leader” of a criminal activity

involving five or more participants. Instead, Mr. Rubio-Sepulveda argued, he

1
The first charged offense was conspiracy to distribute and possess
with intent to distribute one kilogram or more of a mixture or substance
containing a detectable amount of heroin, and 500 grams or more of a mixture or
substance containing a detectable amount of cocaine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(i), (b)(1)(B)(ii)(IV), and 18 U.S.C. § 2; the second
charged offense was money laundering to conceal illegal proceeds, in violation
of 18 U.S.C. § 1956(a)(1)(B)(i).
2
The U.S. Probation Office used the 2016 edition of the Guidelines in
calculating Mr. Rubio-Sepulveda’s sentence. Because he does not challenge this
decision, we also rely on this edition of the Guidelines in our analysis.

2
had merely been a “manager or supervisor” of the conspiracy and, thus, should

only receive a three-level enhancement under U.S.S.G. § 3B1.1(b).

The district court disagreed. Specifically, at the sentencing hearing, the

court noted that Mr. Rubio-Sepulveda had worked as a “dispatcher” for the

conspiracy, with intercepted communications showing that he had “serv[ed]

approximately 25 street-level distributors a day with heroin at a half ounce, an

ounce, or multiple-ounce levels.” R., Vol. IX, at 299 (Tr. of Sentencing Hr’g,

dated Feb. 5–6, 2018). The court also cited evidence revealing that Mr. Rubio-

Sepulveda was “coordinating runners and street-level dealers, who met the

runners to obtain narcotic inventory.” Id. Mr. Rubio-Sepulveda, the court

continued, sometimes “set[] terms of payment and prices” to street-level dealers.

Id. Finally, the court noted that the evidence showed that Mr. Rubio-Sepulveda

was “actively involved in laundering the money from the [conspiracy’s] drug

sales.” Id. at 300. These facts, the court concluded, were sufficient to establish

that Mr. Rubio-Sepulveda qualified for the four-level “organizer or leader”

enhancement under § 3B1.1(a).

Including the § 3B1.1(a) enhancement, Mr. Rubio-Sepulveda’s total

offense level was thirty-six, contributing to a Guidelines sentencing range of 188

to 235 months’ imprisonment. After receiving a sentence at the top of that

range, Mr. Rubio-Sepulveda timely appealed. On appeal, he argues that the

3
district court procedurally erred in applying the § 3B1.1(a) “organizer or leader”

enhancement to his sentence, specifically contending that his role as a

coordinator and dispatcher for the conspiracy warranted only a three-level

“manager or supervisor” enhancement under § 3B1.1(b). Mr. Rubio-Sepulveda

further argues that his sentence was substantively unreasonable and that the

district court erred by proceeding with his sentencing hearing even though his

counsel had stated that she was not ready for that hearing.

II

We agree with Mr. Rubio-Sepulveda that the district court clearly erred in

applying the § 3B1.1(a) enhancement in calculating his sentence, and we reverse

and remand on this basis. Accordingly, we need not and do not opine on Mr.

Rubio-Sepulveda’s other sentencing-based appellate challenges.

A

A district court’s conclusion that a defendant qualifies for an enhancement

under U.S.S.G. § 3B1.1(a) is a factual determination that we review for clear

error. See United States v. Cruz Camacho, 137 F.3d 1220, 1223–24 (10th Cir.

1998). “Factual findings are clearly erroneous only if they are without factual

support in the record or if this court, considering all the evidence, is left with a

definite and firm conviction that a mistake has been made.” United States v.

Lozano, 921 F.3d 942, 946 (10th Cir. 2019).

4
 The government bears the burden at sentencing to establish the evidentiary

basis for a § 3B1.1(a) enhancement by a preponderance of the evidence. See,

e.g., United States v. Sallis, 533 F.3d 1218, 1224 (10th Cir. 2008); United States

v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995).

B

U.S.S.G. § 3B1.1 provides for a sentencing enhancement where the

defendant had an “[a]ggravating [r]ole” in the offense. U.S.S.G. § 3B1.1; see,

e.g., United States v. Gallant, 537 F.3d 1202, 1240 (10th Cir. 2008). In

particular, and as is relevant here, § 3B1.1(a) calls for a four-level enhancement

“[i]f the defendant was an organizer or leader of a criminal activity that

involved five or more participants [3] or was otherwise extensive,” whereas

§ 3B1.1(b) calls for a three-level enhancement “[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.” 4 U.S.S.G. § 3B1.1

(emphases added) (footnote added).

To help distinguish “a leadership and organizational role from one of mere

management or supervision,” Application Note 4 to § 3B1.1 explains that:

3
The parties do not dispute that the conspiracy Mr. Rubio-Sepulveda
participated in involved five or more participants.
4
U.S.S.G. § 3B1.1(c) calls for a two-level enhancement “[i]f the
defendant was an organizer, leader, manager, or supervisor in any criminal
activity other than described in [§ 3B1.1](a) or (b).”

5
 [T]itles such as “kingpin” or “boss” are not controlling. Factors
the court should consider 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.

U.S.S.G. § 3B1.1 cmt. n.4. Our caselaw elaborates that, “[i]n considering these

factors [listed in Application Note 4 to § 3B1.1], the sentencing court should

remain conscious of the fact that the gravamen of [the § 3B1.1(a)] enhancement

is control, organization, and responsibility for the actions of other individuals.”

Sallis, 533 F.3d at 1223 (first alteration in original) (emphasis added) (quoting

Torres, 53 F.3d at 1142); see Cruz Camacho, 137 F.3d at 1224 (stating that a

§ 3B1.1(a) enhancement requires proof “that Defendant exercised leadership

control over at least one person” (emphasis added)); cf. Torres, 53 F.3d at 1143

(“In the absence of some evidence of control, we are compelled to conclude the

district court’s finding that [the defendant] was a leader or organizer is not

supported by the record and is therefore clearly erroneous.”).

Furthermore, we have identified various “indicia . . . as bearing on the

presence or absence” of the level of leadership and control required for a

§ 3B1.1(a) enhancement. Torres, 53 F.3d at 1143. These indicia, as we have

stated before in cases involving drug conspiracies, include that “other sellers

worked for [the defendant], were recruited by him, or had their activities

6
controlled by him; ‘[the defendant] paid others for their efforts on behalf of the

conspiracy’; ‘[the defendant] restricted the people to whom other coconspirators

could sell their drugs’; and ‘[the defendant] controlled the manner of sales, set

prices, or claimed the right to a larger share of proceeds.’” Sallis, 533 F.3d at

1223 (quoting United States v. Anderson, 189 F.3d 1201, 1212 (10th Cir. 1999));

see also United States v. Owens, 70 F.3d 1118, 1129 (10th Cir. 1995) (discussing

these “recognized indicia of leadership and control” relevant to a § 3B1.1(a)

determination).

We have also made clear that a defendant’s “role as a supplier of drugs to

others, standing alone, is not enough” to establish the basis for a § 3B1.1(a)

enhancement. Anderson, 189 F.3d at 1212; see Owens, 70 F.3d at 1129. And,

more generally, we have stressed that a defendant’s “relative importance to the

organization” is distinct from “whether he was a leader or organizer who

exhibited control over . . . other individuals,” as required for a § 3B1.1(a)

enhancement. Torres, 53 F.3d at 1143; see id. (stating that the fact that a

defendant was the “‘engine’ that made [the] operation run” did not bear on

whether he was a § 3B1.1(a) “organizer or leader”); Sallis, 533 F.3d at 1223

(“[Section] 3B1.1(a) is an enhancement for organizers or leaders, not for

important or essential figures.” (quoting Torres, 53 F.3d at 1142)).

7
 C

We conclude that the district court clearly erred in applying the § 3B1.1(a)

enhancement in calculating Mr. Rubio-Sepulveda’s sentence. Specifically,

though Mr. Rubio-Sepulveda had some control or authority over others in the

conspiracy, the government cites no record evidence, nor have we independently

found any, that would support a finding that the indicia of a § 3B1.1(a)

“organizer or leader” are present or that Mr. Rubio-Sepulveda otherwise had a

heightened degree of “control, organization, and responsibility for the actions of

other individuals”—such that we could permissibly conclude that the district

court did not clearly err here in applying § 3B1.1(a)’s enhancement. Sallis, 533

F.3d at 1223 (quoting Torres, 53 F.3d at 1142).

1

As the district court noted, and as the government points out on appeal,

Mr. Rubio-Sepulveda had some control or authority over others in the

conspiracy. For instance, as a “coordinator [or] dispatcher,” he operated a

“source phone” through which he received drug delivery requests from various

dealers in the conspiracy and either fulfilled those requests himself or else

“dispatched” someone to make those deliveries at meetings he scheduled. R.,

Vol. VII, at 91–92 (Tr. of Mots. Hr’g, dated Jan. 5, 2017); id. at 304–05 (Tr. of

Mots. Hr’g – Vol. 1, dated Feb. 21, 2017). Additionally, another member of the

8
conspiracy, Jackie Mendoza, once granted Mr. Rubio-Sepulveda’s request 5 to

create fictitious employment letters for co-conspirators so that they could rent

apartments. See id. at 600–02 (Tr. of Mots. Hr’g – Vol. 2, dated Mar. 9, 2017).

But the mere fact that Mr. Rubio-Sepulveda had some authority to

coordinate or control others is not enough to qualify him as a § 3B1.1(a)

“organizer or leader.” After all, we have stated that a § 3B1.1(b) “manager or

supervisor”—who is, by definition, not a § 3B1.1(a) “organizer or leader”—must

have “decision-making authority or control over a subordinate.” United States v.

Roberts, 14 F.3d 502, 524 (10th Cir. 1993) (emphasis omitted); see also United

States v. Pena-Hermosillo, 522 F.3d 1108, 1119 (10th Cir. 2008) (explaining that

a “supervisor” under § 3B1.1(b) “is one who exercised some degree of control

over others involved in the commission of the offense or . . . [was] responsible

for organizing others for the purpose of carrying out the crime” (quoting United

States v. Allemand, 34 F.3d 923, 931 (10th Cir. 1994))). In other words, what

distinguishes a § 3B1.1(a) “organizer or leader” from a § 3B1.1(b) “manager or

supervisor” is not the mere existence of “control and authority exercised over

others” but rather “the degree” of that control and authority. U.S.S.G.

5
The government asserts that Mr. Rubio-Sepulveda “directed” Ms.
Mendoza to create the fictitious letters. Aplee.’s Resp. Br. at 27. However,
technically, and insofar as it matters, the record suggests it was a “request”
rather than a directive. R., Vol. VII, at 601–02 (Tr. of Mots. Hr’g – Vol. 2, dated
Mar. 9, 2017).

9
§ 3B1.1 cmt. n.4 (emphasis added). And the “organizer or leader” must possess

more of such control and authority than would be required to qualify as a

“manager or supervisor.”

Thus, to determine whether Mr. Rubio-Sepulveda qualifies as an

“organizer or leader,” we must look beyond whether he simply had some control

or authority over others in the conspiracy and instead examine whether there is

evidence of those “indicia . . . bearing on the presence” of the heightened level

of leadership and control required for a § 3B1.1(a) enhancement, Torres, 53 F.3d

at 1143; cf. Anderson, 189 F.3d at 1212 (holding that a lack of evidence of these

indicia rendered § 3B1.1(a) enhancement clearly erroneous); Owens, 70 F.3d at

1129 (same); Torres, 53 F.3d at 1143 (same), or, relatedly but more broadly,

whether there is evidence that otherwise demonstrates that Mr. Rubio-Sepulveda

had a heightened degree of “control, organization, and responsibility for the

actions of other individuals.” Sallis, 533 F.3d at 1223 (quoting Torres, 53 F.3d

at 1142). We now consider these questions.

2

Turning to the record, we find no evidence that Mr. Rubio-Sepulveda

qualifies as a § 3B1.1(a) “organizer or leader” under our recognized indicia.

That is—consistent with Mr. Rubio-Sepulveda’s argument on appeal—the record

contains no evidence that “other sellers worked for [Mr. Rubio-Sepulveda], were

10
recruited by him, or had their activities controlled by him,” that Mr. Rubio-

Sepulveda “paid others for their efforts on behalf of the conspiracy,” that Mr.

Rubio-Sepulveda “restricted the people to whom other coconspirators could sell

their drugs,” or that Mr. Rubio-Sepulveda “controlled the manner of sales, set

prices, or claimed the right to a larger share of proceeds.” Sallis, 533 F.3d at

1223 (quoting Anderson, 189 F.3d at 1212).

The government nearly concedes that the record does not support many of

these indicia. See, e.g., Aplee.’s Resp. Br. at 30 (“assuming,” without offering

any substantial argument in the alternative, that “Rubio-Sepulveda is correct . . .

that he did not restrict the people to whom the other co-conspirators could sell

their drugs, specifically recruit accomplices, nor claim a right to a larger share of

the fruits of the crime”). And though the government—tracking the reasoning

that the district court offered—makes various assertions that the record does

support some of the remaining indicia, we find these assertions unpersuasive.

First, the government asserts that there is “abundant evidence that [co-

conspirators] worked for Rubio-Sepulveda.” Aplee.’s Resp. Br. at 30. It cites,

for example, portions of the transcript of a March 2017 hearing that concern the

relationship between Mr. Rubio-Sepulveda and one of the conspiracy’s dealers,

Orlin Cerrato. Those portions of the transcript state that Mr. Rubio-Sepulveda

supplied Mr. Cerrato with heroin and cocaine “just about every day during the

11
week” over a certain period, R., Vol. VII, at 411, and that Mr. Cerrato once

requested drugs from Mr. Rubio-Sepulveda by telling him that he (Mr. Cerrato)

had “a bunch of guys lined up” that were requesting drugs, id. at 662. See also

id. at 409–10 (similarly stating that Mr. Rubio-Sepulveda was “a supplier of

heroin and cocaine” to Mr. Yonger Matute-Venegas, a co-conspirator); 660

(finding that a co-conspirator, Mr. Jose Nemecia-Garcia, “request[ed] and

receive[d] numerous drug deliveries from Mr. Rubio-Sepulveda”).

These statements, however, only suggest that Mr. Rubio-Sepulveda

delivered drugs on demand to Mr. Cerrato, as well as other co-conspirators; they

do not suggest that these individuals worked for Mr. Rubio-Sepulveda.

Moreover, other portions of the record strongly suggest that Mr. Rubio-

Sepulveda simply worked as a supplier to—but not a boss for—Mr. Cerrato and

others in the conspiracy. See, e.g., id., Vol. II, at 405 (Gov’t Reply to Def.

Rubio-Sepulveda’s Objs. to PSR, Attachment 6, filed Jan. 23, 2018)

(summarizing phone conversation where Mr. Cerrato told Mr. Rubio-Sepulveda

to “come by” for a delivery); id. at 420 (similar); id., Vol. VII, at 304–05 (“[Mr.

Rubio-Sepulveda] was the guy that was answering what we labeled as the source

phone at that point in time. Also, he was the guy who was going and delivering

amounts of whatever drugs were being asked for to different people that called

that phone.”). And, as we previously have made clear, a defendant’s “role as a

12
supplier of drugs to others, standing alone, is not enough to establish his role as

a leader or organizer.” Anderson, 189 F.3d at 1212. 6

Second, and consistent with statements made by the district court at

sentencing, the government asserts that there is evidence showing that Mr.

Rubio-Sepulveda “individually set drug quantities, prices and payment for the

drugs he distributed to lower-level dealers.” Aplee.’s Resp. Br. at 26. But the

evidence the government points to cannot withstand scrutiny. Specifically, the

government cites a portion of Mr. Rubio-Sepulveda’s declaration in support of

his guilty plea which states that “Mr. Rubio-Sepulveda directly communicated

with [dealers in the conspiracy] as to drug quantities, prices, and payment.” R.,

Vol. II, at 290 (Def.’s Decl. in Support of Guilty Plea, filed Sept. 13, 2017)

(emphasis added). But, as Mr. Rubio-Sepulveda argues persuasively, “any

6
Because the record does not support that co-conspirators worked for
Mr. Rubio-Sepulveda, the government’s reference to United States v. Chandler,
5 F. App’x 839 (10th Cir. 2001) (unpublished), is inapposite. In Chandler, a
panel of this court determined that the defendant qualified for a § 3B1.1(a)
enhancement in part because he “had others selling crack for him,” which
allowed the panel to “presume that [the defendant] . . . possibly define[d]
territories [for those workers] and set selling prices and commissions.” 5 F.
App’x at 851 (emphasis added). But we can make no such presumption here:
unlike in Chandler—where there was evidence that potentially “fifteen people
work[ed] for [the defendant] in his drug operation,” id. at 844—there is no
support in the record for a finding that Mr. Rubio-Sepulveda served as anything
other than a supplier for those he delivered drugs to.

13
evidence that [he] ‘communicated . . . as to drug quantities, prices and payment’

does not mean he is the one that set those prices and quantities as opposed to

relaying them.” Aplt.’s Reply Br. at 9 (emphases added) (quoting Aplee.’s Resp.

Br. at 27); see, e.g., Communicate, T HE N EW O XFORD A MERICAN D ICTIONARY

344 (2d ed. 2005) (“[To] impart or pass on (information, news, or ideas).”).

In an attempt to further support the notion that Mr. Rubio-Sepulveda set

the selling quantities for lower-level dealers, the government again notes that

Mr. Cerrato once requested drugs from Mr. Rubio-Sepulveda because Mr.

Cerrato had “a bunch of guys lined up” that wanted drugs. R., Vol. VII, at

661–62. However, this language only suggests that Mr. Cerrato had high demand

for drugs and was thus asking for a delivery of drugs from Mr. Rubio-Sepulveda;

it does not suggest that Mr. Rubio-Sepulveda decided the amount that Mr.

Cerrato could sell. 7 Relatedly, while the government contends that Mr. Rubio-

7
The government, in its effort to show that Mr. Rubio-Sepulveda set
the selling quantities for lower-level dealers, additionally cites a portion of the
March 2017 hearing that discusses how two co-conspirators that received drug
deliveries from Mr. Rubio-Sepulveda once complained to him that they did not
like the “cut” of the “work.” R., Vol. VII, at 660. Although a law enforcement
agent testified at an earlier hearing that “work” is “very common slang” related
to the “cutting of the product” (i.e., the narcotics), id. at 213, the government
does not explain, nor can we ourselves discern, how this fact supports a finding
that Mr. Rubio-Sepulveda regulated the drug quantities that others in the
conspiracy could sell. For example, insofar as Mr. Rubio-Sepulveda was
engaged in cutting the narcotics, the government does not show that he was in
(continued...)

14
Sepulveda “determined the amounts of drugs [street dealers] would receive,”

Aplee.’s Resp. Br. at 29, we find no indication in the record that Mr. Rubio-

Sepulveda had the authority to reject drug requests from Mr. Cerrato or any other

dealer in the conspiracy.

In sum, we determine that—notwithstanding the government’s various

assertions—our stated indicia of a § 3B1.1(a) “organizer or leader” are not found

in the record. In particular, while the evidence that the district court referenced

at sentencing and the government points to on appeal perhaps superficially

suggests the existence of such indicia, a closer examination of that evidence

strongly suggests otherwise.

3

More generally, we underscore here that there is no evidence in the record

that otherwise would meaningfully support a finding that Mr. Rubio-Sepulveda

had the sort of elevated “control, organization, and responsibility for the actions

of other individuals” required for a § 3B1.1(a) enhancement. Sallis, 533 F.3d at

1223 (quoting Torres, 53 F.3d at 1142).

The record suggests that Mr. Rubio-Sepulveda regularly delivered drugs to

co-conspirators and often dispatched runners to meet with street-level dealers at

7
(...continued)
charge of determining the extent to which the drugs would be cut or diluted.

15
meetings he scheduled. See, e.g., R., Vol. VII, at 91–92; id. at 304–05. But the

evidence is thoroughly consistent with an arrangement where Mr. Rubio-

Sepulveda, rather than possessing significant independent decision-making

authority, was assigned to make those deliveries and schedule those meetings

and was simply constrained to follow orders. The existence of such an

arrangement would help account, for instance, for the fact that—as the district

court mentioned at sentencing—the record does not support a finding that Mr.

Rubio-Sepulveda had “free access” to the conspiracy’s drug “stash house.” R.,

Vol. IX, at 297–98. Such an arrangement would also explain why—as the

government conceded at oral argument—the record offers nary the slightest hint

that Mr. Rubio-Sepulveda had any disciplinary authority over any co-

conspirators, which would include runners that failed to follow instructions

communicated by Mr. Rubio-Sepulveda. See Oral Arg. at 24:15–25:11.

The record does make evident—as the district court noted and as the

government highlights on appeal—that Mr. Rubio-Sepulveda was “actively,” or

even heavily, “involved” in the conspiracy’s money laundering operations. R.,

Vol. IX, at 300; see Aplee.’s Resp. Br. at 28 (“Documents presented to the

district court depicted 159 wire transfers connected to Rubio-Sepulveda . . . .”).

But this fact says next to nothing about the extent, if any, to which Mr. Rubio-

16
Sepulveda designed those operations, for example, or wielded control over co-

conspirators involved in money laundering.

Thus, though the record unassailably establishes that Mr. Rubio-Sepulveda

was an important figure in the conspiracy, it establishes, as relevant for our

purposes, little more than that. And being an important—or even an

indispensable—figure is not enough to support a § 3B1.1(a) enhancement. See,

e.g., Sallis, 533 F.3d at 1223 (“[Section] 3B1.1(a) is an enhancement for

organizers or leaders, not for important or essential figures.” (quoting Torres,

53 F.3d at 1142)). That is, without evidence that can establish that Mr. Rubio-

Sepulveda had a heightened degree of “control, organization, and responsibility

for the actions of other individuals,” id. (quoting Torres, 53 F.3d at

1142)—evidence which we do not detect in the record—Mr. Rubio-Sepulveda’s

various roles in the conspiracy “bear[] [only] on his relative importance to the

organization, and not on whether he was a leader or organizer.” Torres, 53 F.3d

at 1143.

***

Though Mr. Rubio-Sepulveda had some control or authority over others in

the conspiracy, and though he played an important role in the conspiracy, we

discern no evidence in the record of our recognized indicia of a § 3B1.1(a)

“organizer or leader” or evidence that otherwise can establish that Mr. Rubio-

17
Sepulveda possessed the sort of elevated “control, organization, and

responsibility for the actions of other individuals” that is the “gravamen” of a

§ 3B1.1(a) enhancement. Sallis, 533 F.3d at 1223 (quoting Torres, 53 F.3d at

1142). Put another way, we do not discern evidence in the record that would

distinguish Mr. Rubio-Sepulveda from a “manager or supervisor” under

§ 3B1.1(b) and qualify him for the “organizer or leader” enhancement. The

district court therefore clearly erred in applying the § 3B1.1(a) enhancement in

calculating Mr. Rubio-Sepulveda’s sentence. And because the government

offers no argument that this error was harmless, we are bound to reverse. See,

e.g., United States v. Lente, 647 F.3d 1021, 1037–38 (10th Cir. 2011)

(“Harmlessness must be proven by a preponderance of the evidence, and the

burden of making this showing falls on the beneficiary of the error—in this case,

the government.” (quoting United States v. Cerno, 529 F.3d 926, 939 (10th Cir.

2008))).

18
 III

For the foregoing reasons we REVERSE the district court’s judgment and

REMAND for resentencing consistent with this order and judgment. 8

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

8
Because we reverse and remand for resentencing on the basis that
the district court clearly erred in applying the § 3B1.1(a) enhancement in
calculating Mr. Rubio-Sepulveda’s sentence, we do not consider Mr. Rubio-
Sepulveda’s additional appellate arguments, which also attack the propriety of
his sentence, i.e., that his sentence was substantively unreasonable and that the
district court erred by proceeding with his sentencing hearing even though his
counsel had stated that she was not prepared for the hearing.

19
No. 18-1055, United States v. Rubio-Sepulveda

KELLY, Circuit Judge, dissenting.

The court concludes that the district court clearly erred in applying the U.S.S.G.

§ 3B1.1(a) enhancement for being an organizer or leader in a drug conspiracy. Because

the record plausibly supports the district court’s finding to the contrary, I respectfully

dissent.

This case calls into focus the distinction between organizers or leaders and

managers or supervisors. Sentencing courts must engage in this line-drawing to

determine whether a defendant’s “control, organization, and responsibility for the actions

of other individuals” was of such a degree to merit a four-level enhancement under

U.S.S.G. § 3B1.1(a). United States v. Sallis, 533 F.3d 1218, 1223 (10th Cir. 2018)

(quoting United States v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995)). In doing so, they

are guided by a mosaic of factors and “indicia” of leadership. See U.S.S.G. § 3B1.1 cmt.

n.4; Torres, 53 F.3d at 1143. Their ultimate determination is one of fact, and one we

review for clear error. Torres, 53 F.3d at 1142. Only if the sentencing court’s finding is

wholly implausible in light of the entire record should we reject it. United States v.

Halliday, 665 F.3d 1219, 1223 (10th Cir. 2011). Though we might have weighed the

evidence differently had we been sitting as triers of fact, when there are two permissible

views of the evidence, the trier of fact’s selection of one or the other cannot be clearly

erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985).

The court concludes the record is entirely devoid of indicia of leadership as

required by § 3B1.1(a) for the enhancement. It notes there is no evidence that “other
sellers worked for [Mr. Rubio-Sepulveda], were recruited” or “controlled by him,” that

he “paid others . . . on behalf of the conspiracy” or “restricted the people to whom other

coconspirators could sell their drugs,” or that he “controlled the manner of sales, set

prices, or claimed the right to a larger share of the proceeds.” Sallis, 533 F.3d at 1223

(quoting United States v. Anderson, 189 F.3d 1201, 1212 (10th Cir. 1999)). Be that as it

may as to some indicia, the court has substituted the district court’s assessment of the

facts with its own as to the remaining indicia. For example, in support of its

enhancement, the district court found Mr. Rubio-Sepulveda “coordinat[ed] runners and

street-level dealers, who met the runners to obtain narcotic inventory.” 9 R. 299. The

court’s examination of the record led it to attribute this to Mr. Rubio-Sepulveda’s

“supplier” role. But the district court could just as readily find that, when sellers

“request[ed] and receiv[ed] numerous drug deliveries from Mr. Rubio-Sepulveda,” he

was performing an organizer or leadership role. 7 R. 660. Indeed, the court all but

admits the evidence is equivocal when it notes the record “strongly suggests,” but does

not definitively conclude, Mr. Rubio-Sepulveda was a mere supplier.

I also disagree that the district court clearly erred in finding Mr. Rubio-Sepulveda

set drug prices, a critical determination on review. The plea agreement states, “Mr.

Rubio-Sepulveda directly communicated with his customers as to drug quantities, prices

and payment.” 2 R. 290. The court, relying on a dictionary, argues Mr. Rubio-

Sepulveda’s admission has but one reasonable construction: he did not set drug prices,

but instead merely imparted information as to drug prices. Yet “communication” need

not be construed so narrowly. Under the definition relied upon by the court — to “impart

2
or pass on (information, news, or ideas)” — one could arguably either impart one’s own

orders or convey messages from others. At oral argument, even Mr. Rubio-Sepulveda’s

counsel could only speculate that his admission meant “he may have relayed the prices,

he may have negotiated . . . [h]e may have gotten [the prices] from somebody else, he

may have said, ‘this is what we’re going to sell it for.’” Oral Arg. at 8:53–9:09 (emphasis

added). At best then, Mr. Rubio-Sepulveda’s admission that he “communicated” prices

is ambiguous. Certainly, his admission could have meant he was but a middle-man,

transmitting prices set from on high. But it is not beyond the pale to understand him, as

the district court did, as admitting to setting resale prices. See 9 R. 299. Our court

should not second-guess the district court’s choice of inferences derived from the

evidence. See United States v. Pikyavit, 527 F.3d 1126, 1130 (10th Cir. 2008).

This case is readily distinguishable from previous cases in which we have held

§ 3B1.1(a) enhancements were clearly erroneous. For example, in United States v.

Anderson, the district court itself noted it lacked a clear understanding of the various

roles in the criminal conspiracy, and that there was very little evidence as to how the

drugs were distributed on the street. 189 F.3d at 1212. On review, all we could glean

from the record was that the defendant was, without question, a mere drug supplier. Id.

Furthermore, in United States v. Owens, the district court supported its § 3B1.1(a)

enhancement with a finding that the defendant supplied large quantities of drugs and

claimed a larger share of the profits. 70 F.3d 1118, 1128 (10th Cir. 1995). Yet on

appeal, we found no evidence that the defendant in fact received a larger share of the

profits, leaving only evidence of his role as a drug supplier. Id. at 1129. And in United

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States v. Torres, we noted the presentence report simply stated the defendant was “a

leader in a criminal organization that involved five or more participants,” and that while

the defendant was an important member of the criminal conspiracy, there was no

evidence as to his control over the manner or place of delivery or, relevant here, his

setting drug prices. 53 F.3d at 1143.

To be sure, this court’s view of the evidence is plausible. But on clear error

review we should defer to the district court’s findings absent a firm conviction it has

erred. United States v. Lozano, 921 F.3d 942, 946 (10th Cir. 2019). The record’s

ambiguity cautions against second-guessing the district court’s determinations. Finding

no clear error, I would affirm.1

1
I would also hold that Mr. Rubio-Sepulveda’s other sentencing-based appellate
challenges — that his sentence was substantively unreasonable and that the sentencing
court should have continued the sentencing hearing to allow for more time to prepare —
are without merit.
4