[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11753 ELEVENTH CIRCUIT
FEB 8, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 5:10-cr-00012-WTM-JEG-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE IGNACIO BUSTOS-NUNEZ,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(February 8, 2012)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
After pleading guilty, Defendant Jose Ignacio Bustos-Nunez appeals his 51-
month sentence for conspiracy to possess with intent to distribute approximately
186 pounds of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. After
review, we affirm.
I. BACKGROUND
On appeal, Bustos-Nunez argues that the district court erroneously applied a
three-level managerial-role enhancement, pursuant to U.S.S.G. § 3B1.1(b),
without first resolving disputed factual portions of the Presentence Investigation
Report (“PSI”).1 See Federal Rule of Criminal Procedure 32(i)(3)(B). The fatal
problem for Bustos-Nunez is that he admitted certain facts in his plea hearing and
did not challenge other recounted facts in the PSI. Those undisputed facts, taken
together, are sufficient to support the role enhancement. We explain why.
A. Role Enhancement
The issue involves a managerial-role enhancement under U.S.S.G.
1
Rule 32(i)(3)(B) provides:
At sentencing, the court:
...
(B) must—for any disputed portion of the presentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either because
the matter will not affect sentencing, or because the court will not consider the matter
in sentencing; . . . .
Fed. R. Crim. P. 32(i)(3)(B).
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§ 3B1.1(b), which provides the defendant’s offense level is increased by three
levels if he “was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(b). To qualify for the enhancement, the defendant need only
manage or supervise one other participant. Id. § 3B1.1, cmt. n.2. Defendant
Bustos-Nunez has never disputed that the marijuana conspiracy had at least five
participants. We thus turn to the other undisputed facts in the plea hearing.
B. Plea Hearing
Defendant Bustos-Nunez and five codefendants—Juan Cano, Marco Rivera,
German Ortega-Flores, Gabriel Sanchez-Cervantes and Gabriel Sanchez-Gomez—
were charged with conspiring to possess 186 pounds of marijuana with the intent
to distribute. Defendant Bustos-Nunez pled guilty pursuant to a plea agreement.
At the plea hearing, the government called Agent Stephen B. Tinsley of the
Drug Enforcement Agency (“DEA”) to testify as to the factual basis for Bustos-
Nunez’s plea. Agent Tinsley testified that the DEA investigated a marijuana
distribution scheme led by Pedro Bustos, Defendant Bustos-Nunez’s brother.
While conducting surveillance of a residence in Nicholls, Georgia, agents
observed Defendant Bustos-Nunez walking around a 53-foot trailer. The next day,
“occupants and other codefendants” unloaded at least 186 pounds of marijuana,
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which was subsequently broken down and repackaged for delivery. After the
surveillance, agents conducted a traffic stop and seized 176 pounds of marijuana
in a vehicle driven by Defendant Bustos-Nunez.
According to Agent Tinsley, the DEA’s investigation showed that
Defendant Bustos-Nunez “was the person who was in charge of the distribution of
this particular load of marijuana as far as related to his other codefendants.”
Agent Tinsley explained that Defendant Bustos-Nunez “was sent here by his
brother’s organization to oversee the unloading and the repackaging, and making
sure that it got distributed through other codefendants to the right people, and then
Mr. Nunez was supposed to be in charge of collecting the drug proceeds to be sent
back to Mexico.”
When the district court asked Defendant Bustos-Nunez whether he agreed
with Agent Tinsley’s testimony, Bustos-Nunez replied, “Yes, Your Honor.” Thus,
Bustos-Nunez’s admitted facts in the plea hearing are sufficient to support the role
enhancement, but there is more.
C. PSI’s Factual Summary
The PSI contained this factual summary about Defendant Bustos-Nunez’s
offense conduct. While he objected to certain statements, he did not object to the
following facts.
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First, DEA agents placed the residence in Nicholls, Georgia under
surveillance after receiving information that it was being used to store drugs.
Then, on April 7, 2010, agents noticed a 53-foot car-hauler parked near the rear
door of the residence. Throughout the night, agents saw several people look at
and touch the front of the car hauler.
The next day, agents watched a Jeep Cherokee leave the residence after a
bag was loaded into it. Later, the Jeep Cherokee returned to the residence, another
bag was loaded into the vehicle, and it departed again. Codefendant Rivera drove
the Jeep Cherokee, and codefendant Ortega-Flores was a passenger. As agents
initiated a traffic stop, Rivera used his cell phone. Once the Jeep Cherokee was
stopped, agents searched the vehicle and found ten pounds of marijuana.
Approximately one hour later, agents watched as Defendant Bustos-Nunez
exited the Nicholls residence, loaded a suitcase and four garbage bags into the
trunk of a Nissan Altima, and departed. Agents performed a traffic stop on the
Defendant Bustos-Nunez’s Nissan Altima, searched the vehicle and found 176
pounds of marijuana.
Back at the residence, agents saw codefendants Sanchez-Cervantes and
Sanchez-Gomez working on the car-hauler and putting a compartment back
together. A subsequent inspection of the car-hauler revealed it was constructed
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with hollow tubing that had been used to store the marijuana. Inside the residence,
agents found packing materials, such as plastic wrap, tape, bags and scales.
Later, codefendant Cano admitted that codefendant Sanchez-Gomez
recruited him to transport the marijuana between Georgia and Texas using a
Dodge truck and the car-hauler. Sanchez-Gomez admitted that he was acting at
the direction of Defendant Bustos-Nunez’s brother in Mexico. Sanchez-Gomez
also admitted helping Defendant Bustos-Nunez and Ortega-Flores unload the
marijuana from the car-hauler.
Once the marijuana was inside the residence, Defendant Bustos-Nunez and
Ortega-Flores transferred the marijuana into separate bags. While Sanchez-Gomez
and his son, Sanchez-Cervantez, were outside fixing the car-hauler, Defendant
Bustos-Nunez left the residence, put a bag containing money in a Nissan truck and
drove away. Sanchez-Gomez later learned that Defendant Bustos-Nunez had
received a call advising him to leave the residence because codefendants Rivera
and Ortega-Flores had been stopped by law enforcement.
In a subsequent interview, Ortega-Flores stated that Defendant Bustos-
Nunez asked him to pick up a Jeep Cherokee in Atlanta and transport it to
“someone to take somewhere,” then later instructed Ortega-Flores to drive the
Jeep Cherokee to the Nicholls, Georgia residence where Rivera placed a bag in the
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car. Bustos-Nunez then told Ortega-Flores to await further instructions from him
(Bustos-Nunez).
D. Disputed Factual Portions of the PSI
The PSI did recount statements of codefendants Rivera and Sanchez-Gomez
to which Defendant Bustos-Nunez objected. Specifically, the PSI alleged that: (1)
Sanchez-Gomez stated he learned Defendant Bustos-Nunez was locally in charge
of overseeing the unloading and safekeeping of the marijuana as well as collecting
the money; and (2) Rivera stated that Defendant Bustos-Nunez instructed Rivera
to travel to the Jacksonville, Florida airport to pick up Sanchez-Cervantes and
Sanchez-Gomez and that Rivera believed codefendant Ortega-Flores was working
under Defendant Bustos-Nunez’s direction.
E. Section 3B1.1(b) Role Enhancement
The PSI recommended that Defendant Bustos-Nunez receive a three-level
enhancement pursuant to U.S.S.G. § 3B1.1(b) for his role as a manager or
supervisor of the marijuana conspiracy. Defendant Bustos-Nunez filed a written
objection challenging the § 3B1.1(b) role enhancement. The written objection did
not dispute most of the PSI’s offense conduct, but did dispute the above-recounted
statements of Sanchez-Gomez and Rivera. However, the written objection did not
dispute Ortega-Flores’s statement that he was following Defendant Bustos-
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Nunez’s instructions to drive a Jeep Cherokee to pick up Rivera, who loaded a bag
into the vehicle.
F. Sentencing Hearing
At sentencing, the district court overruled Bustos-Nunez’s objection to the
role enhancement, stating that it agreed with the PSI. The district court calculated
the advisory guidelines range of 51 to 63 months and allowed Bustos-Nunez to
allocute. Defense counsel made arguments in mitigation and asked for a sentence
at the low end of the guidelines range. The district court then asked defense
counsel whether there was “anything else.” Defense counsel said no.
After imposing a 51-month sentence, the district court asked defense
counsel whether there was any other objection to the court’s “findings of fact,
conclusions of law, or manner in which the sentence was pronounced,” and
defense counsel again said no. Bustos-Nunez filed this appeal.
II. DISCUSSION
At sentencing, the government must prove by a preponderance of the
evidence the facts supporting any guidelines enhancements. United States v.
Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006). The defendant’s failure to object
to a factual allegation in the PSI constitutes an admission for sentencing purposes.
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). Thus, the
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sentencing court may rely on undisputed statements in the PSI “despite the
absence of supporting evidence.” United States v. Lopez-Garcia, 565 F.3d 1306,
1323 (11th Cir. 2009).
If, on the other hand, the defendant objects to factual statements in the PSI,
the government’s burden to prove those disputed facts is triggered. United States
v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). Under Rule 32(i)(3)(B), the
district court must then “rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). In
resolving the factual dispute, the district court may consider the defendant’s
admissions at the plea hearing. See United States v. Martinez, 584 F.3d 1022,
1027 (11th Cir. 2009); Lawrence, 47 F.3d at 1568; United States v. Wilson, 884
F.2d 1355, 1356 (11th Cir. 1989).
Here, Bustos-Nunez’s written objection did dispute some of the PSI factual
allegations relating to Bustos-Nunez’s role in the offense, specifically the
statements of codefendants Rivera and Sanchez-Gomez. At sentencing, the
district court did not resolve the factual dispute. However, any alleged error in
that regard was harmless because undisputed facts amply supported the district
court’s finding that Bustos-Nunez managed or supervised at least one participant
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in the marijuana conspiracy.2
First, at his plea hearing, Bustos-Nunez admitted that: (1) he was sent to
Nicholls, Georgia “by his brother’s organization to oversee the unloading and the
repackaging, and making sure that it got distributed through other codefendants to
the right people,” and (2) he “was the person who was in charge of the distribution
of this particular load of marijuana as far as related to his codefendants.”
Second, Bustos-Nunez did not object to the statements of Ortega-Flores in
the PSI, which showed: (1) Bustos-Nunez directed him to drive a vehicle to
Nicholls, Georgia, where codefendant Rivera placed a bag inside, and (2) then
Bustos-Nunez told Ortega-Flores to await further directions. According to other
undisputed facts in the PSI, Rivera and Ortega-Flores were under surveillance at
the time. When agents initiated a traffic stop, they discovered that the bag
contained ten pounds of marijuana. These undisputed facts show that, at a
minimum, Bustos-Nunez supervised Ortega-Flores, one of the conspiracy’s
participants.
2
We note that at the sentencing hearing the district court indicated that Bustos-Nunez’s
objection to the § 3B1.1(b) role enhancement was a legal objection, not a factual one. Bustos-
Nunez had at least two opportunities to correct the district court or raise a Rule 32(i)(3)(B)
objection, but did not do so. Thus, there is a question as to whether Bustos-Nunez properly
preserved this issue. In any event, we need not reach this issue because the failure to resolve
these disputes is harmless given other facts, which Bustos-Nunez did not dispute, support the
role enhancement.
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For these reasons, we find no reversible error in the district court’s
imposition of the three-level managerial-role enhancement pursuant to U.S.S.G.
§ 3B1.1(b). We affirm Bustos-Nunez’s 51-month sentence.
AFFIRMED.
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