Appellate Case: 21-6043 Document: 010110651651 Date Filed: 03/02/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 2, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6043
(D.C. No. 5:18-CR-00260-SLP-3)
JORGE ANTONIO MEDINA (W.D. Okla.)
ESCARSIGA, a/k/a Tono,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.**
_________________________________
The district court applied a four-level aggravating-role enhancement under
§ 3B1.1(a) of the United States Sentencing Guidelines in calculating Jorge Antonio
Medina Escarsiga’s advisory guideline range. On appeal, Medina1 argues that this
*
This order and judgment is not binding precedent, except under the doctrines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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
1
Because Jorge Antonio Medina Escarsiga’s attorney and the government
refer to him as “Medina,” we do the same.
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was error, because he does not qualify as an “organizer or leader.” Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
In July 2016, law-enforcement officials in Oklahoma began investigating a
large-scale drug conspiracy involving the Irish Mob Gang that spanned Oklahoma,
Kansas, Texas, California, and Mexico.2 The investigation eventually led to a 97-
count superseding indictment with charges against Medina and 54 co-conspirators.
In the superseding indictment, Medina was charged with one count of drug
trafficking under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and one count of conspiracy
to launder money under 18 U.S.C. § 1956(h). Medina pleaded guilty to both counts.
Because Medina was responsible for trafficking more than 450 pounds of
methamphetamine, as well as some heroin, the probation office calculated Medina’s
base-level offense at 38—the maximum level under § 2D1.1(c)(1). To this, it added
an additional 10 offense levels. First, the probation office recommended three
separate two-level specific-offense characteristics: (1) the operation involved
firearms, under U.S.S.G. § 2D1.1(b)(1); (2) the drugs were imported from Mexico,
under U.S.S.G. § 2D1.1(b)(5); and (3) Medina was convicted of money laundering,
under U.S.S.G. § 2S1.1(b)(2)(B). Second, it recommended a four-level aggravating-
role adjustment, under § 3B1.1(a).3 Against the adjusted offense level of 48, the
2
The Irish Mob Gang is an Oklahoma-based prison gang.
3
On appeal, Medina contests only the aggravating-role adjustment.
2
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probation office recommended a three-level reduction for Medina’s timely
acceptance of responsibility. This left Medina’s total offense level at 45. But when a
total offense level exceeds the sentencing table’s maximum offense level of 43, the
guidelines instruct us to apply an offense level of 43. See U.S.S.G. Chapter 5, pt. A,
cmt. n.2. Combined with Medina’s criminal-history category of I, this led to an
advisory guideline range of life imprisonment.
Before sentencing, Medina objected to the aggravating-role enhancement. He
argued that the court lacked sufficient evidence to support a preponderance finding
that he had supervised or controlled any other member of the drug conspiracy, or that
he had any decision-making authority within the operation.
After reviewing the evidence submitted by Medina and the government, the
district court overruled Medina’s objection. But it varied downward from the
guideline’s recommendation of life imprisonment and sentenced Medina to 384
months. Medina now appeals.4
4
Medina argues that without § 3B1.1(a)’s four-level enhancement, his total
offense level would have been 39, resulting in a guideline recommendation of 262 to
327 months’ imprisonment. This is incorrect. We reduce Medina’s total offense level
to 43 only if after all the calculations are made, it exceeds that number. See U.S.S.G.
Ch. 5, pt. A, cmt. n. 2; United States v. Craig, 808 F.3d 1249, 1253 (10th Cir. 2015)
(reducing a defendant’s total offense from 49 to 43 after already crediting a reduction
for acceptance of responsibility under § 3E1.1). So even if Medina had received a
mere two-level aggravating-role adjustment under § 3B1.1(c), his total offense level
would have remained at 43. And if he had received no role adjustment at all, his total
offense level still would have been 41, which would have resulted in an advisory
guideline range of 324 to 405 months’ imprisonment. That range encompasses his
ultimate sentence of 384 months. See U.S.S.G. Chapter 5, pt. A.
3
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DISCUSSION
Medina challenges the district court’s decision to apply U.S.S.G. § 3B1.1(a)’s
four-level enhancement to his sentence. Whether § 3B1.1(a)’s enhancement applies is
a factual determination that we review for clear error. United States v. Rubio-
Sepulveda, 781 F. App’x 769, 771 (10th Cir. 2019). “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).
U.S.S.G. § 3B1.1(a) calls for a four-level sentencing enhancement “[i]f the
defendant was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive[.]” “In distinguishing a leadership or
organizational role from one of mere management or supervision, titles such as
‘kingpin’ or ‘boss’ are not controlling.” U.S.S.G. § 3B1.1(a), cmt. n.4. Instead, the
guideline provides factors a court should consider, including:
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.
Id. In its “Background” section, the guideline commentary notes that the range of
role adjustments varies “based upon the size of the criminal organization (i.e., the
number of participants in the offense) and the degree to which the defendant was
responsible for committing the offense.” Id.
4
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We may look at whether the defendant could recruit drug sellers, control their
work, and pay them “on behalf of the conspiracy[.]” See United States v. Sallis, 533
F.3d 1218, 1223 (10th Cir. 2008). We may also consider whether the defendant
controlled how the drugs were sold, who set the prices, and who obtained what share
of the profits. Id.
But in reviewing these factors, we remain aware that the key inquiry is
“control, organization, and responsibility for the actions of other individuals because
§ 3B1.1(a) is an enhancement for organizers or leaders, not for important or essential
figures.” Id. (quoting United States v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995)).
The mere fact that a defendant “had some authority to coordinate or control others is
not enough to qualify him as a § 3B1.1(a) ‘organizer or leader.’” Rubio-Sepulveda,
781 F. App’x at 773. The enhancement “applies only when the defendant had
‘decision-making authority or control over a subordinate.’” United States v. Pena-
Hermosillo, 522 F.3d 1108, 1112 (10th Cir. 2008) (quoting United States v. Roberts,
14 F.3d 502, 524 (10th Cir. 1993)). In other words, we look not just for the “mere
existence” of control but rather “the degree.” Rubio-Sepulveda, 781 F. App’x at 774
(emphasis in original). Thus, one’s “role as a supplier of drugs to others, standing
alone, is not enough to justify the leader enhancement.” Sallis, 533 F.3d at 1223–24
(cleaned up).
Though Medina acknowledges his involvement in the drug operation, he
argues that there is insufficient evidence to justify § 3B1.1(a)’s application because
he wasn’t an “organizer or leader.” According to Medina, he acted merely as a
5
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mouthpiece for his boss, Geraldo Bustamante. Medina contends that no evidence
shows that he controlled other participants, paid the sellers, or set the price of the
drugs.
The factors identified by the guidelines and in our cases are neither mandatory
nor exclusive. See United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir. 1995)
(“The Guidelines do not require that each of these factors be satisfied for a section
3B1.1 enhancement to apply.”). And in any event, Medina fails to acknowledge the
government’s evidence submitted to the court at the sentencing hearing.
There, the government submitted recordings of ten intercepted phone calls that
highlighted Medina’s leadership authority in the drug operation. In one call, Medina
and one of his buyers, Rogelio Velasquez, discussed the arrangements of another
drug sale.5
In that call, Medina noted how one of his couriers had started
working for someone else, but that he had “already found another
guy” who could deliver drugs into the United States within a week.
Appellee R. vol. 1 at 106–07.
Medina also explained to Velasquez that he was “forming the team
there.” Appellee R. vol. 1 at 108.
In another call, Velasquez mentioned that an associate wanted him to start
buying drugs from someone other than Medina. But Velasquez said he would
continue to purchase from Medina.
In that call, Medina mentioned that it was becoming expensive to
pay his couriers because it was costing him $20,000 for each trip.
5
Velasquez “was believed to be the principal source of supply for the leading
members of the [Irish Mob Gang].” Appellee R. vol. 2 at 12.
6
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Appellee R. vol. 1 at 117 (“It’s just that the trip is expensive to me.
Every time I send the boy, I have to pay 20,000 dollars for the
trip.”).
Medina also assured Velasquez that his courier was reliable and
would help Velasquez with the logistics of his drug sales. Appellee
R. vol. 1 at 116–18 (“Well, all right. Or I am going to call that boy
to see if the boy can help you out from over there, for you to come
over, then for you to talk it over with the boy, and for the boy to
do your errands.”).
And in another call, Velasquez told Medina that his money was ready to be
picked up.
Medina said that he would have his courier pick up the money.
In that same call, Medina told Velasquez that a large supply of his
drugs had been raided while they were being loaded on the plane.
But Medina also mentioned to Velasquez to be ready with money
because he will “supply [him] big time.” Appellee R. vol. 1 at 143.
Considering this evidence, the district court did not clearly err by applying
§ 3B1.1(a)’s four-level enhancement. The court had plenty of evidence that Medina
had acted as an “organizer or leader”—he recruited accomplices, had the authority to
control their activities, and paid them on behalf of the conspiracy.
And though Medina insists that he was acting only at the behest of Mr.
Bustamante, the district court rejected that argument. It found that the “notion of
some Keyser Soze out there who is the true hand that is guiding all of this is
absolutely frivolous and without merit.”6 Appellant R. at 231–32. Given the
6
In the film The Usual Suspects, “Keyser Soze” is a legendary crime lord who
had manipulated other criminals and eluded police capture for years.
7
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government’s evidence and that § 3B1.1 recognizes that “[t]here can, of course, be
more than one person who qualifies as a leader or organizer of a criminal association
or conspiracy,” that conclusion was not clearly erroneous. U.S.S.G. § 3B1.1(a), cmt.
n.4.
In sum, we are not “left with a definite and firm conviction” that the district
court clearly erred by applying § 3B1.1(a)’s enhancement at Medina’s sentencing.7
CONCLUSION
For these reasons, we affirm.
Entered for the Court
Gregory A. Phillips
Circuit Judge
7
The government also argues that any error in applying the four-level
enhancement would be harmless because, in its view, Medina would still qualify for a
three-level enhancement under § 3B1.1(b). That enhancement applies to a “manager
or supervisor (but not an organizer or leader).” U.S.S.G. § 3B1.1(b). With a three-
level role adjustment, Medina’s total offense level would remain at 43. But because
we conclude that the district court did not clearly err in applying § 3B1.1(a), we have
no reason to evaluate § 3B1.1(b).
8
United States v. Escarsiga
Combined Opinion