# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 18, 2009

Decided December 10, 2009

Before

DIANE P. WOOD, Circuit Judge

TERENCE T. EVANS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09

‐ 1173

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ROBERTO SANCHEZ,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District

of Illinois, Eastern Division.

No. 08 CR 521

‐ 1

Suzanne B. Conlon, Judge

.

O R D E R

Roberto Sanchez appeals the district court’s decision to include within his advisory

guideline computation a three

‐ level increase for being a manager or supervisor of a criminal

activity involving five or more participants (namely, drug dealing). U.S.S.G. § 3B1.1(b). The

court then sentenced Sanchez consistently with that range. Finding no error in either the

district court’s understanding of the scope of the Guideline or in its factual findings, we

affirm. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 1173 Page 2

I

Sanchez pleaded guilty to conspiracy to possess cocaine with intent to distribute,

possession with intent to distribute cocaine, and use of a communication facility in

connection with a felony narcotics offense. See 21 U.S.C. §§ 841(a)(1), 843(b), 846; 18 U.S.C. §

2. At this point, Sanchez is not taking issue with the drug type and quantity that dictated his

base offense level. Instead, he focuses on the recommendation in the Presentence

Investigation Report that his offense level should be increased by three for his role in the

offense. See U.S.S.G. § 3B1.1(b). The writer of the PSR concluded that this increase was

proper because the offense involved five participants, and Sanchez exerted authority over

co

‐ defendant Raul Gallegos Rojas. Sanchez objected to the recommended increase.

Sanchez urged that his case is analogous to United States v. Mankiewicz

, in which this

court reversed an increase in the defendant’s sentence under § 3B1.1(c) after concluding that

the evidence did not show that he had exerted the “sort of real and direct influence, aimed

at furthering the criminal activity, that the enhancement was intended to punish.” 122 F.3d

399, 406 (7th Cir. 1997) (internal quotations and citation omitted). The district court,

however, saw things otherwise. It determined that the central point of this conspiracy was

to obtain cocaine from California, transport it to Chicago, and then transport money back to

California. Relying on what it characterized as undisputed facts, the court found that Rojas

was under Sanchez’s control with respect to the subject matter of the conspiracy (drugs and

money) because Sanchez recruited Rojas to pick up cocaine in California, deliver it to

Chicago, and return to California with payment. In addition, Sanchez bought the truck

Rojas used in the trips and directed Rojas’s actions during those trips. The district court

overruled Sanchez’s objection, applied the increased base offense level, and sentenced

Sanchez to 151 months’ imprisonment.

II

Although Sanchez suggests both that a de novo standard governs the district court’s

decision to apply § 3B1.1 and that an abuse of discretion approach might apply, in fact we

use the clear error standard for reviewing a determination of the defendant’s role in the

offense. See, e.g.

, United States v. Johnson

, 489 F.3d 794, 796 (7th Cir. 2007); United States v.

Carrera

, 259 F.3d 818, 826 (7th Cir. 2001).

Section 3B1.1(b) instructs a sentencing court to increase a defendant’s base offense

level by three “[i]f the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was otherwise

extensive.” This subsection describes a middle ground between § 3B1.1(a), which provides

a four

‐ level increase for a defendant who was an organizer or leader of an offense involvingNo. 09

‐ 1173 Page 3

extensive criminal activity, and § 3B1.1(c), which provides a two

‐ level increase for a

defendant who was an organizer, leader, manager, or supervisor of less extensive criminal

activity than that covered by subsections (a) and (b). The commentary to § 3B1.1 defines

“participant” as someone who is “criminally responsible for the commission of the offense,

but need not have been convicted.” U.S.S.G. § 3B1.1 cmt. n.1. It also identifies a number of

factors that help the court to distinguish among these levels of responsibility. The list

includes:

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.

U.S.S.G. § 3B1.1 cmt. n.4. See United States v. Howell

, 527 F.3d 646, 649 (7th Cir. 2008). The

background note to § 3B1.1 explains that the purpose of this enhancement is to ensure that a

defendant’s sentence is commensurate with his “relative responsibility” for the commission

of an offense. U.S.S.G. § 3B1.1 cmt. background.

Sanchez asserts that there was insufficient evidence to find that he managed or

supervised Rojas. Relying on § 3B1.1 commentary note 4, he maintains that the record is

devoid of evidence that he exercised decision

‐ making authority, claimed a larger share of

the fruits of the crime, planned anything other than Rojas’s trips, or had control over

anyone. See U.S.S.G. § 3B1.1 cmt. n.4. Instead, he contends that the district judge was

required to see his actions as indistinguishable from those of the defendant in Mankiewicz

, who recruited his father to assist him in receiving a single drug delivery, then directed him

where to stack bales of marijuana in a warehouse and asked him to accompany the drug

runner to a motel where the runner would meet with the head of the drug enterprise. 122

F.3d at 406.

But Sanchez’s role was materially different from Mankiewicz’s. Sanchez recruited

Rojas to act as a courier transporting drugs and drug proceeds across the country,

purchased a vehicle for Rojas to use during these trips and put it in Rojas’s name, ensured

that the vehicle had a secret compartment for holding drugs, and told Rojas where to make

the drug pick

‐ ups and deliveries. Like the defendant in United States v. Vargas

, Sanchez was

“principally responsible for arranging the logistics of cocaine deliveries or payments.” 16

F.3d 155, 160 (7th Cir. 1994). We have held before that “[o]rchestrating or coordinating

activities performed by others makes a particular defendant a manager or supervisor.”

United States v. Martinez

, 520 F.3d 749, 752 (7th Cir. 2008); see also Vargas

, 16 F.3d at 160

(approving a § 3B1.1 increase for a defendant who arranged transportation logistics).No. 09

‐ 1173 Page 4

Moreover, control over another participant is an especially important signal, whether

or not it is the “ sine qua non for an enhancement under § 3B1.1.” See United States v.

Gonzalez

‐ Mendoza

, 584 F.3d 726, 729 (7th Cir. 2009). And here there was ample evidence that

Sanchez exercised control over Rojas: Rojas told FBI agents that he transported drugs at

Sanchez’s direction, and that it was Sanchez who put him in touch with a dealer in

California, told him the pick

‐ up and delivery locations, and paid him. The district court did

not clearly err in deciding that Sanchez was a manager for the purposes of § 3B1.1(b).

Sanchez also contends that the district court applied § 3B1.1(b) based solely on the

government’s recommendation, without addressing his objections to the increase or relying

on other specific evidence. The record belies that. The court thoroughly considered all the

evidence before drawing a conclusion, and it explained its reasoning adequately.

In the alternative, Sanchez argues that even if the district court correctly

characterized him as a manager or supervisor, it was nonetheless wrong to impose a three

‐

level increase in his base offense level. Relying on Martinez

, 520 F.3d 749, Sanchez maintains

that the court should have applied § 3B1.1(c) (which calls for a two

‐ level increase) instead of

§ 3B1.1(b), because he supervised fewer than five people in coordinating the transportation

of the drugs and money. In Martinez

, the district court concluded that the defendant should

receive an increase under § 3B1.1(c) because his role was to supervise the “delivery

logistics,” which involved only two other people. Id. at 752. But this court noted that the

defendant “received a break” when the district court increased his base offense level by two

because “a defendant who acts as a manager or supervisor in a criminal activity involving

at least four other participants should receive a three

‐ level increase even if he managed or

supervised just one of the participants.” Id.

Here, the district court concluded that the facts did not support “fractionalizing” the

conspiracy into transport and distribution subdivisions and found, based on undisputed

facts, that Sanchez was a manager and five or more people were involved in the conspiracy.

The record adequately supports the court’s conclusion about the number of participants:

Sanchez pleaded guilty to conspiracy with three named co

‐ defendants, and there were at

least two unindicted co

‐ conspirators. As this court explained in United States v. McGuire

, these findings end the inquiry: “The plain language of § 3B1.1(b) requires only that a

defendant was a manager ‘ and the criminal activity involved five or more participants’

– not

that a defendant managed, or controlled, the five or more participants.” 957 F.2d 310, 316

(7th Cir. 1992). The district court did not clearly err in applying a three

‐ level increase under

§ 3B1.1(b) rather than a two

‐ level increase under § 3B1.1(c).

Accordingly, we A FFIRM the district court’s judgment.