Opinion
23-2658
08-21-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ISAIAS GONZALEZ-TORRES, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Argued August 6, 2024
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:22-CR-00058-003 James R. Sweeney, II, Judge.
Before FRANK H. EASTERBROOK, Circuit Judge AMY J. ST. EVE, Circuit Judge JOSHUA p. KOLAR, Circuit Judge
ORDER
Isaias Gonzalez-Torres pleaded guilty to conspiring to possess methamphetamine with intent to distribute and conspiring to launder money. At sentencing, he objected to the application of a three-point adjustment under U.S.S.G. § 3B1.1(b) because he was a manager or supervisor in the offense. But the district court overruled Gonzalez-Torres's objection, concluding that he had coordinated and directed lower-level members in the conspiracy. Because the record supports this conclusion, we affirm.
Background
In late 2021, law enforcement began investigating a drug trafficking ring in Indianapolis. Agents obtained permission to wiretap several phones, including some belonging to Gonzalez-Torres. From their investigation, law enforcement learned that Gonzalez-Torres had conspired with Erlin Lucero-Asencio, Abel Ayala-Garcia, Julio Vicente-Guox, and others to distribute methamphetamine in Indiana. To facilitate the conspiracy, Gonzalez-Torres maintained a stash house where drugs were received, repackaged, and redistributed. The conspirators then used a network of nominees to wire transfer or deposit and then withdraw the proceeds of the drug sales, the goal being to disguise the nature of the funds and send them to Arizona or Mexico.
Gonzalez-Torres eventually pleaded guilty to conspiracy to possess with intent to distribute and to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 846, as well as conspiracy to launder monetary instruments, 18 U.S.C. § 1956(a)(1)(B)(i), (h).
The probation officer who authored the presentence investigation report calculated a guideline range of 292-365 months in prison. With regard to the drugconspiracy conviction, she first assessed the adjusted offense level at 43: a base offense level of 38 for an offense involving 4.5 kilograms or more of methamphetamine, U.S.S.G. § 2D1.1(a)(5), (c)(1); a two-level increase for maintaining a stash house, U.S.S.G. § 2D1.1(b)(12); and-most relevant for this appeal-a three-level increase for being a manager or supervisor in a criminal activity involving five or more participants or that was otherwise extensive, U.S.S.G. § 3B1.1(b). She also assessed a three-level decrease for acceptance of responsibility, U.S.S.G. § 3E1.1(a)-(b), yielding a total offense level of 40. Gonzalez-Torres had no criminal history points, so his criminal history category was I.
Gonzalez-Torres objected to the recommended three-point adjustment under § 3B1.1(b). He asserted that he was a middleman with no authority and that the cartel dictated all his actions, to which he acquiesced under threat of injury to his family members in Mexico.
The government, however, pointed to examples of Gonzalez-Torres's leadership role in the conspiracy. At the sentencing hearing, the government presented transcripts of Gonzalez-Torres's phone conversations with his co-conspirators in which he coordinated drug shipments and wire transfers. The government also presented testimony from the DEA's primary agent for the case, Erik Collins, that Gonzalez-Torres co-led operations in Indiana with Lucero-Asencio. Agent Collins testified that the two were partners with complementary strengths-Gonzalez-Torres had connections to suppliers in Mexico, and Lucero-Asencio had a customer base in Indiana. Indeed, Agent Collins believed that Gonzalez-Torres was an essential member of the partnership without which Lucero-Asencio could not operate. Further, Agent Collins testified that Gonzalez-Torres and Lucero-Asencio oversaw a team of couriers to make deliveries and wire funds back to the cartel, and he highlighted situations in which Gonzalez-Torres appeared to manage Vicente-Guox specifically-by asking him to make wire transfers or by discussing his compensation.
Ultimately, the district court overruled Gonzalez-Torres's objection and assessed the three-point adjustment under U.S.S.G. § 3B1.1(b). The court concluded that Gonzalez-Torres exercised "some degree of decision-making authority," and had a degree of control and authority over aspects of the operation. The court sentenced him to 292 months' imprisonment.
Analysis
On appeal, Gonzalez-Torres disputes only the application of the aggravating-role adjustment under U.S.S.G. § 3B1.1(b). The guideline increases a defendant's offense level by three points 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). Gonzalez-Torres primarily challenges the district court's conclusion that he played a managerial role-a conclusion we review for clear error. United States v. Garcia, 948 F.3d 789, 806 (7th Cir. 2020). Gonzalez-Torres concedes that clear-error review applies. While the guidelines provide a list of factors to consider in applying an aggravating-role adjustment, see U.S.S.G. § 3B1.1, cmt. n.4., the touchstone inquiry is whether Gonzalez-Torres was relatively more culpable than his cohorts, given his status in a criminal hierarchy, see United States v. Craft, 99 F.4th 407, 414 (7th Cir. 2024).
The district court did not clearly err in applying the § 3B1.1(b) adjustment because evidence indicated that Gonzalez-Torres was relatively more culpable than others in the criminal enterprise. The court heard from Agent Collins that Gonzalez-Torres was an essential half of the partnership with Lucero-Asencio running the drug-distribution scheme. We have applied the adjustment even where some conspirators are equals and the hierarchy is not strictly defined, so long as there was evidence of some conspirators wielding greater authority in the operation. See United States v. Jones, 56 F.4th 455, 496-97 (7th Cir. 2022). And here, Gonzalez-Torres wielded more.
For example, the record shows that Gonzalez-Torres did more than supply drugs, even large quantities, or be a middleman-factors that alone are insufficient to support the adjustment. See United States v. Colon, 919 F.3d 510, 518 (7th Cir. 2019). To start, Agent Collins painted a picture of a hierarchy where Gonzalez-Torres occupied the role of a mid-level manager. Collins testified that Gonzalez-Torres and Lucero-Asencio discussed payment for couriers and the remaining profit margin for the two to split. Setting compensation for those lower in a hierarchy to ensure one's own higher compensation can indicate that someone is a manager, see United States v. Henry, 813 F.3d 681, 682-83 (7th Cir. 2016), as can participating in closed-door meetings to manage the proceeds of a criminal operation, see Craft, 99 F.4th 414-15. Agent Collins also testified that Gonzalez-Torres oversaw a team of "workers" who delivered drugs for Gonzalez-Torres and wired money at his direction and on his behalf. Indeed, Agent Collins's testimony, on its own, sufficiently supported a § 3B1.1(b) adjustment.
But Gonzalez-Torres's larger role is also apparent from the conversations he had with Ayala-Garcia. On a phone call in January 2022, Gonzalez-Torres told Ayala-Garcia that he would send "[s]omeone who's running my errands" to deliver drugs. And in another call two months later, Gonzalez-Torres told Ayala-Garcia that he would "send the little worker" if he, Gonzales-Torres, could not deliver drugs himself. Gonzalez-Torres now discounts such talk as mere "braggadocio," but the district court could have taken Gonzalez-Torres at his own word and concluded that he controlled couriers and could dispatch them to deliver drugs. A defendant may characterize his activity as being that of an equal, but where his statements suggest he directs the activity of others, a court can infer that he is a manager or supervisor. See United States v. Tate, 97 F.4th 541, 550 (7th Cir. 2024). Indeed, Gonzalez-Torres concedes that the evidence regarding his role is perhaps a "stalemate." And if two plausible versions of events can be inferred from the evidence, then the choice between them cannot be clearly erroneous. United States v. May, 748 F.3d 758, 760. (7th Cir. 2014).
The government also presented evidence that Gonzalez-Torres specifically managed or supervised Vicente-Guox. According to Agent Collins, Gonzalez-Torres was referring to Vicente-Guox when he mentioned "someone who's running my errands." During a phone call in February 2022, Gonzalez-Torres also told Vicente-Guox "I need you to get me.. .two guys to do some wires to Mexico." And in a call a month later, Gonzalez-Torres asked Vicent-Guox, "Can you make a wire right now?" A court can infer from such imperative statements or requests that a defendant is a manager or supervisor. See Tate, 97 F.4th at 550. The evidence here shows that at times Gonzalez-Torres told Vicente-Guox what to do, when to do it, where to go, and who to interact with. And orchestrating the activities of even one other person can make someone a manager or supervisor. See United States v. Anderson, 988 F.3d 420, 428 (7th Cir. 2021). Relatedly, the exercise of control will typically allow a defendant to reward a subordinate for carrying out tasks. See United States v. Oliver, 873 F.3d 601, 612 (7th Cir. 2017). On the March 2022 phone call, Gonzalez-Torres offered to pay Vicente-Guox a "commission" for a delivery that initially appeared not to have been paid.
Gonzalez-Torres counters that none of his communications with Vicente-Guox or others involved threats-a fact that Agent Collins confirmed-and argues that a lack of coercion or an ability to discipline others "is fatal to a management enhancement." This is incorrect; "coercion is just one factor" in the § 3B1.1(b) inquiry. United States v. Dade, 787 F.3d 1165, 1167 (7th Cir. 2015). Even then, a defendant can exercise control over someone by doling out punishment or rewards, id., akin to the commission Gonzalez-Torres ensured Vicente-Guox in the March 2022 call for a job well done.
Gonzalez-Torres also compares his case to United States v. Colon, in which we disagreed with the application of a § 3B1.1 adjustment for a defendant who acted merely as a middleman. 919 F.3d at 517-19. But that case is distinguishable because Colon's role-receiving drugs sent by his supplier and instructing couriers only on where and how to make deliveries, id. at 513, 519-was more limited than Gonzalez-Torres's. Gonzalez-Torres described his role as sending "little worker[s]" and people "running [his] errands." Transcripts of phone calls involving Gonzalez-Torres show that he played a role in deciding which couriers to send and how much they should be paid, as well as ensuring that his couriers were actually paid for their services. So unlike Colon, the district court here appropriately justified the adjustment by "identify[ing] instances where the defendant orchestrated or oversaw the drug operation and those involved in it." Colon, 919 F.3d at 519.
Gonzalez-Torres characterizes his participation as simply one among peers, as if he, at most, coordinated with his coworkers only occasionally. But the evidence here allowed the district court to draw the opposite conclusion. Courts can interpret imperative statements as commands to a subordinate, rather than requests from one coworker to another. See Tate, 97 F.4th at 550. And here Gonzalez-Torres made such imperative statements to Vicente-Guox-"I need you to get me..." - and intimated to Ayala-Garcia that he could carry out these kinds of orders-"I'll send the little worker." The court also could have inferred Gonzalez-Torres's greater culpability from his conversations with Lucero-Asencio over the expansion of operations into Virginia. Participating in discussions about work delegation, compensation, and management of interpersonal conflict, even if done in concert with a partner, reflects a supervisory role. See Tate, 97 F.4th at 550; see also United States v. Lovies, 16 F.4th 493, 507 (7th Cir. 2021) (upholding manager adjustment where defendant "played a greater role than the group's other members").
AFFIRMED