UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4523
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE JUAN ORGANES-ESPINO, a/k/a Johnny Organes, a/k/a
Johnny Two Braids, a/k/a Paisa,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00263-WO-1)
Submitted: March 20, 2012 Decided: April 2, 2012
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Juan Organes-Espino appeals the 324-month
sentence imposed following his jury conviction of one count of
conspiracy to distribute cocaine hydrochloride, in violation of
21 U.S.C. § 846 (2006), and one count of possession of
ammunition by an illegal alien, in violation of 18 U.S.C.
§§ 922(g)(5), 924(a)(2) (2006). On appeal, Organes-Espino
argues that the district court erred in (1) admitting testimony
regarding a recorded phone call from a witness who was not a
party to the call, and (2) applying a three-level leadership
enhancement pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.1(b) (2010). We affirm.
Organes-Espino first contends that the district court
erred in admitting the testimony regarding the recorded calls
because it was impermissible opinion testimony. Because
Organes-Espino did not object to the testimony at trial, we
review this claim for plain error. See Fed. R. Evid. 103(d);
United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
Assuming, without deciding, that the district court
erred in admitting the challenged evidence, we conclude that the
admission did not rise to the level of plain error, as it did
not affect Organes-Espino’s substantial rights. Not only did
the jury receive transcripts of the recordings, which
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Organes-Espino stipulated were accurate, but the remaining
evidence of Organes-Espino’s guilt was overwhelming.
We also perceive no plain error under the Sixth
Amendment’s Confrontation Clause. The Confrontation Clause
“guarantees a defendant’s right to confront those ‘who bear
testimony’ against him,” and, therefore, a witnesses’ testimony
is “inadmissible unless the witness appears at trial or, the
witness is unavailable, the defendant had a prior opportunity
for cross-examination.” Melendez v. Massachusetts, 129 S. Ct.
2527, 2531 (2009) (quoting Crawford v. Washington, 541 U.S. 36,
51, 54 (2004) (internal quotation marks omitted). When a
co-conspirator’s statements are admissible under Federal Rule of
Evidence 801(d)(2)(E), there is no Confrontation Clause
violation. Bourjaily v. United States, 483 U.S. 171, 182
(1987). Because the recorded calls were made during and in
furtherance of the drug conspiracy, see Fed. R. Evid.
801(d)(2)(E), their admission did not violate the Confrontation
Clause. To the extent that Organes-Espino alleges that the
testimony regarding the calls was, itself, a Crawford violation,
we conclude that the testimony was not hearsay, and, therefore,
it was admissible under Crawford.
Finally, Organes-Espino contends that the district
court erred in applying a three-level leadership enhancement.
We review a district court’s application of the Sentencing
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Guidelines de novo and its factual findings for clear error.
United States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).
Pursuant to USSG § 3B1.1(b), a defendant qualifies for a
three-level enhancement 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.” USSG
§ 3B1.1(b). To qualify as a manager or supervisor, the
defendant need only have exercised control over one participant.
USSG § 3B1.1, cmt. n.2. In determining a defendant’s leadership
role, a court should consider seven factors:
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, cmt. n.4; see also United States v. Sayles, 296
F.3d 219, 224 (4th Cir. 2002).
Here, the district court did not err in assessing a
three-level enhancement. The evidence clearly showed that the
criminal activity involved at least five people and that
Organes-Espino exercised control over at least one of the
participants, who delivered cocaine at his behest for a period
of years.
Accordingly, we affirm the district court’s judgment.
We deny Organes-Espino’s motions to file a pro se supplemental
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brief. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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