[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13846 OCTOBER 5, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00385-CR-T-30TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 5, 2009)
Before MARCUS and HILL, Circuit Judges and VOORHEES,* District Judge.
*
Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
MARCUS, Circuit Judge:
Hector Martinez appeals his 78-month sentence following his conviction for
conspiring to distribute and to possess with the intent to distribute 100 kilograms
or more of marijuana in violation of 18 U.S.C. §§ 846 and 841(b)(1)(B). On the
slender record presented, the district court clearly erred in finding that Martinez
was an organizer or leader under U.S.S.G. § 3B1.1(a). Accordingly, we vacate the
sentence and remand for further proceedings consistent with this opinion.
I.
In 2003, a multi-agency task force began investigating the involvement of
Martinez and others in an organization shipping marijuana between Texas and
central Florida. Between Fall 2003 and Spring 2004, agents seized packages of
marijuana mailed by Martinez and his co-conspirators. In 2007, Martinez was
charged in a one-count indictment handed up by a grand jury sitting in the United
States District Court for the Middle District of Florida with conspiracy to distribute
and to possess with the intent to distribute 100 kilograms or more of marijuana.
At his March 11, 2008 plea hearing, Martinez pled guilty, agreeing that the
government could prove the following facts beyond a reasonable doubt:
During the course of and in furtherance of this conspiracy, the
Defendant orchestrated the weekly shipment of mail parcels
containing multi-pound quantities of marijuana from Texas to various
locations in the middle district of Florida. To facilitate this conspiracy
2
as [well as] to avoid detection, the Defendant and his co-conspirators
used fictitious return addresses on these parcels, had them shipped to
residences belonging to other co-conspirators, utilized others to mail
and/or receive the packages and employed Western Union wire
transfers to send their drug proceeds to each other.
(Hr’g Trans. Plea Proceedings 64, Mar. 11, 2008).
In relevant part, Martinez’s Presentence Investigation Report (“PSI”) stated
in Paragraph 9 that he
orchestrated weekly shipments of mail parcels containing multi-pound
quantities of marijuana from Texas to various locations in the Middle
District of Florida. Martinez and several co-conspirators used
fictitious return addresses on these parcels and had them shipped to
different residences belonging to other co-conspirators. Martinez also
utilized other individuals – including many of his own family
members – to mail or receive the packages containing the marijuana.
The individuals whom Martinez enlisted to assist him in furtherance
of the offense include, but are not limited to, his brother, Tomas
Martinez, his sisters Amalia Martinez and Antonia Aguilar, his ex-
girlfriend, Sally Cadona, and his daughter, Rosalinda Martinez.
(Martinez PSI ¶ 9). The PSI also said that Martinez participated in the wire
transfer of $343,729 in drug proceeds during the duration of the conspiracy.
(Martinez PSI ¶ 11). Paragraph 20 of the PSI set forth that Martinez was eligible
for a role enhancement as an organizer or leader under U.S.S.G. § 3B1.1(a)
because he “recruited and directed numerous participants within the conspiracy,
which involved more than five participants.” (Martinez PSI ¶ 20).
On May 23, 2008, Martinez submitted timely written objections to the PSI.
3
He objected to each element of the PSI that stated or implied he was eligible for the
Section 3B1.1(a) enhancement for a leadership role. Particularly, Martinez
objected to the facts as set out in Paragraph 9 of the PSI:
We disagree that there is evidence showing that Martinez
“orchestrated” the weekly shipment of marijuana, and disagree that
family members became “co-conspirators” merely because they were
implicated in having participated in wire transfers. We particularly
object that Martinez’s daughter, Rosalinda Martinez, assisted him
further in the offense; the fact that family members wired money to
Martinez, or received money from him, is not necessarily proof of
conspiracy, assistance in, or knowledge of the offense, particularly
where government records show that Rosalinda wired money with a
grand total of approximately $400.00, on only 3 occasions over the
period Martinez was watched. Position of Defendant Hector Martinez
with Respect to Sentencing Factors As Laid Out in May 9, 2008
Presentence Report By Carlos Colon, United States Probation Office,
¶ 2.
Martinez also objected to the PSI’s characterization of the conspiracy as the
“Hector Martinez organization” or as “Martinez’s network,” and to the PSI’s
designation of his co-conspirators as “members” of his organization. (Position of
Defendant Hector Martinez with Respect to Sentencing Factors As Laid Out in
May 9, 2008 Presentence Report By Carlos Colon, United States Probation Office
¶¶ 1, 3, 4). Martinez unambiguously objected to the PSI’s application of the
U.S.S.G. § 3B1.1(a) four-level increase in his sentence, arguing that he had not
“played a leadership, managerial or supervisory role in the offense.” (Id. ¶ 6).
At his June 26, 2008 sentencing hearing, Martinez renewed his objection to
4
the government’s characterization of his involvement as an organizer or a leader.
Martinez argued that “the mere fact that [Martinez] was either sending these
shipments . . . and receiving the money in return . . . does not in itself place him in
a position where he was a supervisory management leader of this organization.”
(Hr’g Trans. Sentencing 75, June 26, 2008). Notably, the government introduced
no evidence at the sentencing hearing except for referencing the PSI itself.
The district court judge summarily denied the objection to the facts in
Paragraph 9, and the application of the Section 3B1.1(a) enhancement, stating that
“if you read Paragraph 9 of the presentence report, he’s admitted these facts, and
Paragraph 9 shows him to be the leader. He’s the one that enlisted others to help
him in furtherance of the offense.” (Id. at 79). The district court then adopted the
PSI’s factual findings, calling them “undisputed factual statements.” (Id.) He
applied the Guidelines as set forth in the PSI, which yielded a sentencing range of
70 to 87 months, and sentenced Martinez to 78 months’ imprisonment. In
imposing the sentence, the district court observed that it had considered the 18
U.S.C. § 3553 sentencing factors and found that Martinez’s sentence was
“sufficient but not greater than necessary to comply with the statutory purposes of
sentencing.” (Hr’g Trans. Sentencing 83, June 26, 2008). The district court also
imposed a five year term of supervised release and entered a money forfeiture
5
judgment in the amount of $110,000.
This timely appeal followed.
II.
We review a district court’s determination that a defendant is subject to a
Section 3B1.1 role enhancement as an organizer or leader for clear error. United
States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir. 2005).
Although the Sentencing Guidelines are no longer mandatory, United States
v. Booker, 543 U.S. 220, 249-51 (2005), the district court is still required to
consult, consider, and correctly calculate the guideline range when imposing a
sentence, United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). See
also United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir. 2008) (explaining
that the district court committed reversible error having improperly calculated the
applicable guideline range). Accordingly, if the district court erred in calculating
the guideline range while imposing a sentence, we may vacate the defendant’s
sentence and remand the case for re-sentencing.
Martinez challenges the district court’s imposition of a leadership role
enhancement to his offense level calculation under the Sentencing Guidelines.
Pursuant to Section 3B1.1(a), a district court must increase a defendant’s offense
level by four levels “[i]f the defendant was an organizer or leader of a criminal
6
activity that involved five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(a). The commentary of that section explains that where, as here,
the criminal organization is relatively small, “the distinction between organization
and leadership, and that of management and supervision, is of less significance than
in larger enterprises that tend to have clearly delineated divisions of responsibility.”
U.S.S.G. § 3B1.1 cmt. (backg’d).1 Accordingly, the four level enhancement could
be imposed on Martinez only if he were both (1) an organizer or leader, and (2) the
criminal activity involved either five or more participants or was otherwise
extensive. See United States v. Alred, 144 F.3d 1405, 1421 (11th Cir. 1998)
(“[T]he plain language of section 3B1.1(a) requires both a leadership role and an
extensive operation. Without proof of the defendant’s leadership role, evidence of
the operation’s extensiveness is insufficient as a matter of law to warrant the
adjustment.”) (quotation marks omitted).
Comment four of U.S.S.G. § 3B1.1, in turn, sets forth seven explanatory
factors that illuminate whether a defendant is an “organizer” or a “leader” and we
consider these factors in determining whether to apply the adjustment for
aggravating role in the offense:
1
The commentary and application notes of the Sentencing Guidelines are authoritative,
unless they are plainly erroneous, inconsistent with the regulation they interpret, or contrary to
the Constitution or federal law. Stinson v. United States, 508 U.S. 36, 45 (1993); United States
v. Torrealba, 339 F.3d 1238, 1242 (11th Cir. 2003).
7
(1) exercise of decision making authority, (2) the nature of
participation in the commission of the offense, (3) the recruitment of
accomplices, (4) the claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or organizing the
offense, (6) the nature and scope of the illegal activity, and (7) the
degree of control and authority exercised over others.
United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006) (quoting U.S.S.G. §
3B1.1 cmt. n.4). “There is no requirement that all of the considerations have to be
present in any one case.” Ramirez, 426 F.3d at 1356. Instead, “these factors are
merely considerations for the sentencing judge.” Id. However, “[s]ection 3B1.1
requires the exercise of some authority in the organization, the exertion of some
degree of control, influence, or leadership.” Gupta, 463 F.3d at 1198 (quotation
marks omitted). Thus, for example, a defendant’s management of assets, standing
alone, is insufficient to support an enhancement under Section 3B1.1. United States
v. Glover, 179 F.3d 1300, 1302-03 (11th Cir. 1999) (“We now squarely decide that
a section 3B1.1 enhancement cannot be based solely on a finding that a defendant
managed the assets of a conspiracy.”). Rather, there must be evidence that the
defendant exerted some control, influence or decision-making authority over
another participant in the criminal activity. Id. at 1303 (“While sufficient evidence
exists to support a finding that [the defendant] managed an asset (the cocaine) of the
conspiracy, no evidence (as the government concedes) shows that [the defendant]
exercised control over another participant. And the district court made no finding
8
that [the defendant] was a manager of people.”). The sentence adjustment was
plainly designed to address “concerns about relative responsibility.” U.S.S.G. §
3B1.1 cmt. backg’d.
On this bare record, the district court clearly erred in imposing a role
enhancement pursuant to Section 3B1.1(a) on Martinez’s sentence, because the
government failed to prove the disputed facts in the PSI by a preponderance of the
evidence, and, without those facts, presented insufficient evidence for the district
court to find that Martinez was an organizer or leader of a criminal activity.2
See Ramirez, 426 F.3d at 1355.
The district court determined that the information contained in Paragraph 9 of
Martinez’s PSI -- which said that Martinez “orchestrated” weekly shipments of
marijuana from Texas to Florida, utilized others to mail or receive those shipments,
and enlisted others to join in the scheme -- established that he was a leader.
However, Martinez clearly and unambiguously objected to the PSI’s
characterization that he “orchestrated” the weekly shipments of marijuana, that he
used his family members to further the offense, that it was his organization or
2
Because we conclude that the record did not provide enough evidence for the district
court to determine that Martinez was a leader, we need not and do not address his additional
argument that the district court plainly erred in finding that the criminal activity involved five or
more participants or was otherwise extensive as is also required by Section 3B1.1(a). See Alred,
144 F.3d at 1421.
9
network, or that he played any kind of leadership, managerial or supervisory role.
It is by now abundantly clear that once a defendant objects to a fact contained
in the PSI, the government bears the burden of proving that disputed fact by a
preponderance of the evidence. United States v. Rodriguez, 398 F.3d 1291, 1296
(11th Cir. 2005); see also United States v. Liss, 265 F.3d 1220, 1230 (11th Cir.
2001) (“When a defendant challenges one of the bases of his sentence as set forth in
the PS[I], the government has the burden of establishing the disputed fact by a
preponderance of the evidence.”) (quotation marks omitted); United States v.
Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995) (explaining that when a defendant
challenges a fact in the PSI, the government’s burden of proof is triggered). We
have explained that “the preponderance standard is not toothless. It is the district
court’s duty to ensure that the Government carries this burden by presenting reliable
and specific evidence.” United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir.
1996) (emphasis omitted). As we said in Lawrence:
Once the Government has presented proper evidence, the district court
must either: (1) make an explicit factual finding as to the allegation; or
(2) determine that no such finding is necessary because the matter
controverted will not be taken into account in sentencing the
defendant.
47 F.3d at 1567 (citations omitted).
The government presented no evidence at the sentencing hearing to establish
10
any of the essential factual statements in the PSI disputed by Martinez. However,
because Martinez admitted during his guilty plea that he did “orchestrate” drug
shipments, his objection to that fact is without merit and the government need not
have introduced any evidence to demonstrate it. A fact admitted to during a guilty
plea cannot later be contested when it appears in the defendant’s PSI. See United
States v. Bennett, 472 F.3d 825, 832-33 (11th Cir. 2006). In addition, Martinez’s
guilty plea also stated that he, along with his co-conspirators, used others to assist in
the drug shipments, and the district court could properly consider that as an
undisputed fact for sentencing purposes. See United States v. Wilson, 884 F.2d
1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court may be
based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,
undisputed statements in the presentence report, or evidence presented at the
sentencing hearing.”).
Accordingly, the only undisputed facts upon which the district court could
have properly based its role enhancement determination are these: Martinez
“orchestrated” drug shipments; Martinez was directly involved in the wire transfer
of $343,729 of drug proceeds (there was a total of approximately $650,000 of drug
proceeds involved in this case); and Martinez, along with his co-conspirators,
“utilized other individuals” to mail and receive drug shipments.
11
Those facts are not enough. They do not establish, standing alone or in
concert, any of the seven factors set forth in Comment Four to Section 3B1.1: 1)
decision making authority, 2) nature of participation, 3) recruitment, 4) larger share
in profits, 5) degree of participation in planning and organizing, 6) nature and scope
of the offense, and 7) the degree of control and authority exercised. U.S.S.G. §
3B1.1 cmt. n.4.
As for the first factor, there is no undisputed evidence that Martinez exercised
decision-making authority over anyone in this conspiracy. The term “orchestrate”
is not synonymous with control, supervise, or manage. Indeed, Webster’s Third
New International Dictionary 1587 (2002) defines “orchestrate” as “to arrange,
develop, organize, or combine so as to achieve a desired or maximum effect.”
Thus, to “orchestrate” may mean no more than to organize or coordinate a particular
transaction, as opposed to creating the transaction, managing the transaction, or
otherwise exercising authority over the transaction. While a person who
orchestrates a transaction may also be one who authorizes and supervises the
transaction, the orchestrator just as easily could be a subordinate charged with
dealing with the relatively minor details of completing that transaction. See United
States v. Quigley, 373 F.3d 133, 138-40 (D.C. Cir. 2004) (holding that
“orchestrator” did not necessarily imply that a defendant occupied the “hierarchical
12
relationship” necessary to satisfy Section 3B1.1). And, because the PSI contains no
undisputed facts as to how Martinez organized or directed drug shipments, nor did
the government provide any further details at the sentencing hearing, it is
impossible to know what degree, if any, of decision-making authority Martinez
possessed. In Alred, we made clear that merely distributing drugs and making
arrangements for the delivery and sale of drugs between the buyer and the seller is
not enough to demonstrate a leadership role under Section 3B1.1(a). 144 F.3d at
1422. In short, there is precious little we can infer from the bare, undisputed record
that Martinez exercised any position of leadership or authority over his co-
conspirators, or that it was somehow his idea to undertake any of the criminal
activities.
The same analysis applies to the second factor: nature of the participation.
Martinez’s admissions in the plea colloquy do not illuminate his “relative
responsibility,” U.S.S.G. § 3B1.1 cmt. (bckg’d), vis à vis his unindicted co-
conspirators. The facts to which Martinez acceded merely reveal that he acted in
concert with his co-conspirators in shipping, transferring money, and concealing
their conspiracy.
The third, fourth and fifth factors are similarly unavailing. There is no
undisputed evidence in the PSI that Martinez recruited any of his co-conspirators.
13
There is no evidence that Martinez claimed a larger share of the fruits of the crime;
indeed, in the Offender Characteristics section, the PSI says that Martinez is
destitute and lives in a small mobile home “in an impoverished rural area.” (PSI ¶
47). If he claimed a greater share of the profits, it was not apparent from the
unchallenged sections of the PSI or from the plea colloquy. Nor is it clear whether
Martinez coordinated drug shipments and received drug proceeds via wire transfers
independently, in concert with, or at the behest of and under the direction of a
supervisor who planned and organized the overall scheme. In fact, at the sentencing
hearing, Martinez alleged that he did not know who the leader of the group was.
(Hr’g Trans. Sentencing 75). None of these factors are adequately supported by the
unchallenged facts in the record.
Finally, as for the sixth and seventh factors, the record contains no
undisputed evidence demonstrating that Martinez exercised any control or authority
over others; Martinez repeatedly objected to any references to the conspiracy being
his “network” or “organization,” or that any of his co-conspirators were “members”
of “his organization.” It is not clear that this is one of the “larger enterprises that
tend to have clearly delineated divisions of responsibility” that U.S.S.G. § 3B1.1
contemplated. U.S.S.G. § 3B1.1 cmt. bckg’d. And the government introduced
nothing at the sentencing hearing in support of the PSI’s claim that Martinez
14
exercised control and authority over others. The only undisputed evidence presented
in this record is that Martinez, along with his co-conspirators, “utilized other
individuals” to mail and receive drug shipments. This fact, phrased by the
prosecutor at the plea allocution as joint action, presents no indicia of control or
authority exercised over the co-conspirators charged with mailing and receiving
drug shipments.
The majority of the admissions made by Martinez at his plea hearing equally
involved his co-conspirators: “To facilitate this conspiracy to avoid detection, the
Defendant and his co-conspirators used fictitious return addresses on these parcels,
had them shipped to residences belonging to other co-conspirators, utilized others to
mail . . . and employed Western Union wire transfers to send their drug proceeds to
each other.” (Hr’g Trans. Plea Proceedings 64, Mar. 11, 2008) (emphasis added).
There is no suggestion (other than the single use of the verb “orchestrate”) that
Martinez had any position of leadership or authority over his co-conspirators or that
it was his idea to undertake any of the criminal activities; the plea allocution yields
no clear inference that he had subordinates. See Alred, 144 F.3d at 1421-22
(vacating a Section 3B1.1(a) role enhancement where only “slight evidence”
indicated that the defendant “recruited or directed the actions of co-conspirators,”
and the defendant was directed by others who held controlling roles); United States
15
v. Yates, 990 F.2d 1179, 1181-83 (11th Cir. 1993) (holding that the defendant was
not subject to a role enhancement under Section 3B1.1(a) where he engaged only in
a seller/buyer relationship with the other participants).
On this bare record, the district court could not reject the objection to the
sentence adjustment for an aggravating role under U.S.S.G. § 3B1.1(a) without
requiring the government to present sufficient evidence to establish by a
preponderance of the evidence that Martinez was an organizer or leader of the
charged criminal conduct. Because the district court clearly erred in finding that
Martinez was a leader or organizer of the conspiracy based on the plainly disputed
facts found in Paragraph 9 of the PSI, we are required to vacate the sentence and
remand for further proceedings consistent with this opinion. See United States v.
Hall, 349 F.3d 1320, 1325-26 (11th Cir. 2003) (explaining that if the government
does not present sufficient evidence to support the disputed fact, we are “obliged to
vacate the sentence imposed and remand for resentencing.”).
At re-sentencing, the government may present evidence in support of the
claimed leadership enhancement to which Martinez has objected. And if it does so,
the district court is obliged to make a clear determination as to whether the
government has proven the necessary facts by a preponderance. See Liss, 265 F.3d
at 1231 (vacating defendant’s sentence where the government did not provide any
16
further evidence supporting a disputed fact in the PSI upon which the district court
based its sentence and “remand[ing] to the district court for further findings);
Lawrence, 47 F.3d at 1569 (vacating and remanding defendant’s sentence with the
instruction that the “district court base its findings on reliable and specific evidence
rather than on the conclusory language of a PS[I], the sparse evidence given at a
Rule 11 hearing, and the prosecution’s mere reference to evidence adduced in the
separate trials of co-indictees.”). While there are, undoubtedly, many ways by
which the government could establish an aggravating role enhancement, we cannot
say with any confidence that the record before us has made the necessary
hierarchical relationship clear.
VACATED AND REMANDED.
17