IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-41258

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

ESTEVAN OCHOA-GOMEZ, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

Estevan Ochoa–Gomez (Defendant) challenges a two-level adjustment

that the district court applied to his sentence for having exercised an 

aggravating role in the convicted offense. Because the record plausibly 

supports a finding that Defendant exercised management responsibility over 

the property, assets, or activities of a criminal organization—actions which our 

Court, sitting en banc, has held may warrant an aggravating role adjustment

pursuant to § 3B1.1(c) of the United States Sentencing Guidelines—we 

AFFIRM the district court’s judgment.

United States Court of Appeals

Fifth Circuit

FILED

January 28, 2015

Lyle W. Cayce

Clerk

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I.

This case arises out of a drug operation in which Defendant and others 

transported crystal methamphetamine from Mexico into the United States. 

According to the Presentence Report (PSR), the transactions at issue began in 

early 2012, but Defendant did not become involved until after the first two 

transactions were complete. Initially, his co-defendant, Raymundo Jose 

Cabrera–Parades (Cabrera), and Cosme Nunez–Aviles (Nunez), an unindicted 

co-conspirator, met with an undercover officer in April 2012 to discuss the 

details for delivering crystal methamphetamine to a buyer in Atlanta, Georgia. 

At a second meeting between these individuals, Nunez told the officer that the 

delivery to Atlanta would be a test run and that the organization that Nunez 

and Cabrera were a part of had “an unlimited supply of crystal 

methamphetamine and marijuana.” He also told the officer that he knew of 

two other individuals who wanted to transport large quantities of marijuana

to Houston and Dallas, Texas, one of whom was later identified as “Estevan” 

(Defendant’s first name). Nunez and Cabrera, along with an unidentified, 

unindicted co-conspirator, completed the first transaction with the undercover 

officer.

Over the subsequent weeks, Cabrera, accompanied by Nunez and other 

co-conspirators, met with the undercover officer to discuss additional deliveries 

to cities in the United States. It was not until June 2012, after Nunez elected 

to remain in Mexico and a fourth co-conspirator was arrested by the 

investigating officers, that Defendant began participating in the negotiations 

alongside Cabrera. Defendant and Cabrera met with the undercover officer to

negotiate the delivery of specific quantities of crystal methamphetamine to 

Houston, Texas, and marijuana to a location in Alabama. They both attended 

subsequent meetings with the officer but no transactions materialized.

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In October 2012, Cabrera again spoke with the undercover officer about 

a potential delivery. Defendant did not attend the meeting because he was 

“busy wrapping the crystal methamphetamine.” Cabrera represented to the 

officer that he and Defendant had 12 kilograms of crystal methamphetamine 

that needed to be delivered, 8 kilograms of which belonged to Defendant and 

Cabrera. Later, Cabrera and Defendant met the officer in a parking lot to 

exchange the drugs. Cabrera arrived first, and after talking to the officer for 

a short while, Defendant arrived in a separate vehicle with the drugs. They 

made the exchange and then left the scene in their separate vehicles. The next 

day, Cabrera, without Defendant, met with the undercover officer to discuss 

the final details for the delivery and, upon being asked, explained that he and 

Defendant had wrapped the drugs themselves. A few days later, Cabrera and 

Defendant discussed another potential delivery with the undercover officer. 

After the meeting concluded, agents from the Drug Enforcement Agency 

arrested both Cabrera and Defendant.

In light of the above facts, the PSR describes Defendant’s role in the 

conspiracy as “helping facilitate the transportation of narcotics.” Based on the 

testimony of one of the agents:

[Defendant was] very knowledgeable in the operations within the 

organization. Both [Cabrera] and [Defendant] knew when 

narcotics would be imported and released to their possession. 

Further, they were responsible for storing the narcotics prior to 

coordinating the transportation further north. In addition, they 

would obtain the funds that were used to hire/pay the transporters.

According to the PSR, Defendant wrapped and delivered the crystal 

methamphetamine given to the undercover officer at the October 2012 

meeting. He also participated in negotiating the ultimate delivery of those 

drugs.

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Based on these facts, the government charged Defendant with three 

counts of drug-related offenses. Pursuant to a plea agreement, Defendant 

pleaded guilty to the third count, possession with intent to distribute 500 

grams or more of crystal methamphetamine, under 21 U.S.C. §§ 841(a)(1), 

841(b)(1)(A)(viii) and 18 U.S.C. § 2. The Sentencing Guideline corresponding 

with Defendant’s crime is U.S.S.G. § 2D1.1(a)(5). Under this Guideline, based 

on the amount and quality of the crystal methamphetamine involved, 

Defendant’s base offense level was 38. In addition, the probation officer 

recommended a four-level adjustment pursuant to § 3B1.1(a) for Defendant’s 

aggravating role in the offense. Defendant objected to the facts in the PSR and 

the adjustment on the basis that the PSR does not support a finding that he 

“exercised a leadership or managerial role.” The district court thought that 

“some adjustment should be made” but, because Defendant’s role in the offense 

was “not quite as bad” as Cabrera’s, the court applied only a two-level 

adjustment pursuant to § 3B1.1(c). The district court indicated that because 

Defendant had duties (wrapping and driving) typically assigned to people “at 

the top” and participated in a transaction that was coordinated over a long 

period of time, the adjustment was warranted. The district court did not 

specify which of the four roles in § 3B1.1(c) (“organizer, leader, manager, or 

supervisor”) Defendant had exercised.

The district court also applied a two-level enhancement (not at issue in 

this appeal) pursuant to U.S.S.G. § 2D1.4(b)(5) for importing the crystal 

methamphetamine from Mexico and a three-level reduction for acceptance of 

responsibility. Based on all of the adjustments, Defendant’s total offense level 

was 39. Given his criminal history category of I, the recommended sentencing 

range under the Guidelines was 262–327 months. The district court sentenced 

Defendant to 262 months’ imprisonment. Without the two-level adjustment, 

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Defendant’s offense level would have been 37, corresponding to a Guidelines 

range of 210–262 months. Defendant appealed his sentence on the basis that 

the district court clearly erred in determining that he exercised an aggravating 

role in the offense and imposing the related two-level adjustment.

II.

District courts, while not bound by the Sentencing Guidelines, “must 

consult the Guidelines and take them into account when sentencing,” and 

appellate courts “review sentencing decisions for unreasonableness.” United 

States v. Booker, 543 U.S. 220, 260 (2006). “[A] district court’s interpretation 

or application of the Sentencing Guidelines is reviewed de novo, while its 

factual findings are reviewed for clear error.” United States v. Hernandez–

Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (internal quotation marks omitted) 

(citing United States v. Turner, 319 F.3d 716, 725 (5th Cir.2003)).

Whether a defendant exercised an aggravating role as an organizer, 

leader, manager, or supervisor for purposes of an adjustment under U.S.S.G. 

§ 3B1.1(c) is a finding of fact reviewed for clear error. United States v. 

Gonzales, 436 F.3d 560, 584 (5th Cir. 2006); see also United States v. Akins, 

746 F.3d 590, 609 (5th Cir. 2014) (conducting clear error review for a factual 

finding under § 3B1.1(b)). A factual finding that is plausible based on the 

record as a whole is not clearly erroneous. United States v. Zuniga, 720 F.3d 

587, 590 (5th Cir. 2013). In making the factual determinations pursuant to 

the Sentencing Guidelines, a district court may base its findings on “any 

information that has sufficient indicia of reliability to support its probable 

accuracy.” United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006) (internal 

quotation marks omitted). A PSR generally bears sufficient indicia of 

reliability for this purpose. United States v. Harris, 702 F.3d 226, 230 (5th Cir. 

2012).

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III.

The Sentencing Guidelines instruct a district court to increase a 

defendant’s offense level if he played an aggravating role in the offense at issue. 

U.S.S.G. § 3B1.1. The guideline recommends three different adjustment levels 

depending on the scope of the criminal activity and the degree of control 

exercised by a defendant. U.S.S.G. § 3B1.1(a)–(c). If the criminal activity 

involves fewer than five participants and is not otherwise extensive, then the 

district court should increase a defendant’s sentence by two levels if he 

exercised any of the four aggravating roles listed—organizer, leader, manager, 

or supervisor. U.S.S.G. § 3B1.1(c)

The application notes accompanying a Guideline generally bind federal 

courts unless they are inconsistent with the text of the Guideline. United 

States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005); United States v. 

Ho, 311 F.3d 589, 610 (5th Cir. 2002) (citing Stinson v. United States, 508 U.S. 

36 (1993)). To warrant an adjustment under any of the three subsections, the 

application notes for § 3B1.1 state that the defendant “must” be an organizer, 

leader, manager, or supervisor “of one or more other participants.”1 U.S.S.G. 

§ 3B1.1, cmt. n.2. Moreover, the notes advise that an upward departure2 may 

1 A “participant” includes anyone “who is criminally responsible for the commission of 

the offense.” U.S.S.G. § 3B1.1, cmt. n.1. This can include individuals not convicted, but 

excludes undercover officers. Id.

2 A district court may depart from a Guideline-specified sentence only when it finds 

“an aggravating . . . circumstance of a kind, or to a degree, not adequately taken into 

consideration by the Sentencing Commission in formulating the [G]uidelines that should 

result in a sentence different from that described.” 18 U.S.C. § 3553(b). There are two 

different kinds of departures in the Sentencing Guidelines:

“The first involves instances in which the [G]uidelines provide specific 

guidance for departure by analogy or by other numerical or non-numerical 

suggestions. The Commission intends such suggestions as policy guidance for 

the courts. The Commission expects that most departures will reflect the 

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be warranted for a defendant who did not exercise control over another 

participant but “nevertheless exercised management responsibility over the 

property, assets, or activities of a criminal organization.” U.S.S.G. § 3B1.1, 

cmt. n.2. Our court, sitting en banc, has construed Note 2 to allow application 

of an adjustment, even where a defendant did not exercise control over another 

participant, if he exercised management responsibility over the property, 

assets, or activities of a criminal organization. United States v. Delgado, 672 

F.3d 320, 345 (5th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 525 (2012).3 The 

court in Delgado explained that because the defendant “control[led] a large 

quantity of drugs and the truck used to transport them,” and “made 

arrangements for their transportation and delivery,” the district court’s finding 

was not clearly erroneous. Id. According to Delgado, a § 3B1.1 adjustment 

may be based on either control over people or management of assets. Id. We 

have followed and applied Delgado’s interpretation of § 3B1.1, cmt. n.2. See

suggestions and that the courts of appeals may prove more likely to find 

departures “unreasonable” where they fall outside suggested levels.”

U.S.S.G. Ch.1, Pt.A, Subpt. 1 at 7 (2014). The second type rests “on grounds not mentioned 

in the [G]uidelines.” Id. Note 2 contains the first type, recommending a departure where a 

defendant “exercised management responsibility over the property, assets, or activities of a 

criminal organization.” U.S.S.G. § 3B1.1, cmt. n.2.

3 Defendant did not cover the asset management issue in his initial brief or file a reply 

brief responding to the government’s arguments on this point. In its brief, the government 

cited Delgado regarding the standard of review on appeal, but did not discuss its 

interpretation of § 3B1.1. The government did, however, argue that an adjustment may still 

be applied where a defendant “assumes a supervisory role, even in the absence of specific 

testimony that the defendant supervised a specific person on a specific date or in a specific 

task.” For support, it cited a published case that broadly found an aggravating role and an 

unpublished case released before Delgado that relied on evidence of asset management to 

affirm a sentence that included a § 3B1.1(c) adjustment. See United States v. Njoku, 737 F.3d 

55, 77–78 (5th Cir. 2013); United States v. Huerta–Ortega, 442 F. App’x 953, 955 (5th Cir. 

2011).

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United States v. St. Junius, 739 F.3d 193, 208–09 (5th Cir. 2013) (holding that 

the district court’s finding of an aggravating role was plausibly supported by 

evidence that the defendant signed important documents, including paychecks, 

and sent correspondence as the owner of an organization engaged in health 

care fraud). Likewise, we are bound by Delgado. See United States v. Traxler, 

764 F.3d 486, 489 (5th Cir. 2014) (explaining that under our rules, en banc 

precedent and earlier panel holdings bind future panels of our court). 

Therefore, the question before us is whether the record plausibly 

supports the district court’s finding that Defendant exercised an aggravating 

role in his offense either by exercising control over another participant or 

exercising management responsibility over property, assets, or activities. 

U.S.S.G. § 3B1.1(c), cmt. n.2; see Delgado, 672 F.3d at 344–45. Having 

reviewed the evidence in the PSR and cases applying § 3B1.1, we are persuaded 

that the district court did not err in applying the two-level increase. Even 

assuming arguendo that Defendant is correct that the record lacks any 

evidence that he exercised control over another participant in the offense, it 

does contain evidence that he “exercised management responsibility over the 

property, assets, or activities of [the] criminal organization.”

The PSR describes Defendant’s role as: “helping facilitate the 

transportation of narcotics”; “deliver[ing] the 15.4 kilograms of 

methamphetamine to the [undercover officer]”; “participating in the wrapping 

of his and [Cabrera’s] 8 kilograms of crystal methamphetamine”; and jointly 

with Cabrera “meeting the [undercover officer] at a local restaurant” for the 

exchange. Later in the report, Defendant’s role is also described as: 

“coordinating the transportation of narcotics”; “negotiat[ing] the price for the 

transportation of narcotics”; “deliver[ing] the narcotics”; and providing 8 

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kilograms of crystal methamphetamine jointly owned by Defendant and 

Cabrera.

At the sentencing hearing, the district court concluded that these are 

tasks typically performed by those “at the top” in a narcotics organization. The 

district court also expressed concern that Defendant’s involvement extended 

over a number of months and that he had the important responsibility of 

wrapping and then delivering the crystal methamphetamine to the undercover 

officer at the October 2012 exchange. Like the defendants in Delgado and St. 

Junius, Defendant played an integral role in the transaction at issue and 

exercised management responsibility over the property, assets, and activities 

of the criminal organization. He assisted in negotiations, contributed eight 

kilograms of jointly-owned crystal methamphetamine, stored and packaged 

the drugs, delivered them to the undercover officer, and indicated a willingness 

to supply more drugs in the future. Based on this evidence, the district court 

could plausibly determine that Defendant “exercised management 

responsibility over the property, assets, or activities of a criminal 

organization,” which, in turn, supports a finding that Defendant exercised an 

aggravating role pursuant to § 3B1.1(c).

IV.

For the reasons stated above, we AFFIRM.

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EDWARD C. PRADO, Circuit Judge, joined by ELROD, Circuit Judge, 

concurring.

The opinion correctly applies controlling precedent from this circuit and 

I concur. However, an apparent error has crept into the controlling authority, 

United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc). Delgado 

appears to have conflated an “adjustment” and an “upward departure” for 

purposes of Application Note 2 to United States Sentencing Guidelines 

(U.S.S.G.) § 3B1.1. See 672 F.3d at 344–45. This issue merits en banc review.

Following Delgado, Fifth Circuit precedent expressly permits a district 

court to apply a two-level sentence adjustment under § 3B1.1(c) based on 

evidence that the defendant “exercised management responsibility over the 

property, assets, or activities of a criminal organization.” See id. (quoting 

U.S.S.G. § 3B1.1 cmt. n.2) (internal quotation marks omitted). This appears 

to contrast with the plain text of Application Note 2,1 which requires evidence 

of supervising or managing other participants to support the adjustment.2 See

U.S.S.G. § 3B1.1 cmt. n.2 (“To qualify for an adjustment under this section, the 

defendant must have been the organizer, leader, manager, or supervisor of one 

or more other participants.” (emphases added)). Application Note 2 

1 Application Note text bears “controlling weight” unless it is “plainly erroneous or 

inconsistent with the guidelines.” United States v. Urias–Escobar, 281 F.3d 165, 167 (5th 

Cir. 2002).

2 This apparent error is further illuminated by the history of § 3B1.1. The Guideline 

was amended in 1993 to include Note 2 in order to resolve a circuit split over the same 

interpretation at issue here: whether management of assets warranted an adjustment. 

U.S.S.G. app. C, amend. 500; compare, e.g., United States v. Carroll, 893 F.2d 1502 (6th Cir. 

1990) (requiring a degree of control over other participants), United States v. Fuller, 897 F.2d 

1217 (1st Cir. 1990) (same), United States v. Mares–Molina, 913 F.2d 770 (9th Cir. 1990) 

(same), and United States v. Fuentes, 954 F.2d 151 (3d Cir. 1992) (same), with United States 

v. Chambers, 985 F.2d 1263 (4th Cir. 1992) (holding that exercising control over other 

participants is one factor among many that should be considered, not a requirement for 

applying the adjustment).

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recommends only an upward departure in cases where the defendant managed 

the organization’s property or activities. See id. (“An upward departure may 

be warranted, however, in the case of a defendant who . . . exercised 

management responsibility over the property, assets, or activities of a criminal 

organization.” (emphases added)).

The distinction between an adjustment and a departure is not merely 

semantic: an adjustment affects the defendant’s offense level and 

corresponding guideline range, see U.S.S.G. § 1.1(a), while a departure involves 

the “imposition of a sentence outside the applicable guideline range or of a 

sentence that is otherwise different from the guideline sentence,” U.S.S.G. 

§ 1.1 cmt. n.1(E). See, e.g., United States v. Ramos–Paulino, 488 F.3d 459, 464 

(1st Cir. 2007) (“Although both may lead to similar outcomes, there is an 

important structural distinction between sentencing enhancements and 

sentencing departures.”). Indeed, we initially joined the majority of circuits in 

holding that it is error for a district court to apply a § 3B1.1 adjustment, rather 

than a departure, when the evidence establishes the defendant’s management 

or supervisory role over property or activities alone. See United States v. Jobe, 

101 F.3d 1046, 1068 (5th Cir. 1996). In Delgado, we sub silentio abrogated 

Jobe and diverged from at least nine other circuits.3

3 See United States v. Ramos–Paulino, 488 F.3d 459, 464 (1st Cir. 2007) (“[Application 

Note 2] makes it pellucid that the management of criminal activities (as opposed to the 

management of criminal actors) may ground an upward departure but not an upward rolein-the-offense adjustment.”); United States v. Patasnik, 89 F.3d 63, 70 (2d Cir. 1996) 

(discussing Application Note 2 and its textual distinction between adjustments and 

departures); United States v. Steffen, 741 F.3d 411, 415 (4th Cir. 2013) (“[I]n order to qualify 

for the role enhancement, the government must present evidence that the defendant managed 

or supervised participants, as opposed to property . . . .” (emphasis added) (internal quotation 

marks omitted)); United States v. Gort–Didonato, 109 F.3d 318, 321 (6th Cir. 1997) (“Where 

the defendant exerts control over at least one participant in a supervisory, managerial, 

leadership, or organizational capacity, a sentence enhancement is required under § 3B1.1. 

Whereas, where a defendant does not exercise control over an individual but over property, 

assets, or activities, an upward departure may be warranted.”); United States v. Fones, 51 

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Importantly, there is little to indicate that we intended this 

interpretation of the Guidelines. On its face, nothing in Delgado purports to 

overrule Jobe or create a circuit split, and its holding on the § 3B1.1 issue 

appears on the final page of a twenty-six page opinion. Nevertheless, we are 

bound by this ruling. See United States v. St. Junius, 739 F.3d 193, 208–09 

(5th Cir. 2013) (citing Delgado and applying its interpretation of Application 

Note 2 to uphold an adjustment based solely on management of property, 

assets, or activities). Given that our precedent appears to conflict with the 

plain language of Application Note 2, sub silentio overruled Jobe, and places 

this circuit at odds with several other circuits, the issue merits en banc review.

F.3d 663, 668 (7th Cir. 1995) (“[A]s indicated by the note, the method of sentence 

enhancement varies depending upon exactly what the defendant has control over. . . . This 

note now requires that a defendant have control over at least one participant . . . in order to 

be subject to a sentencing enhancement under § 3B1.1.”); United States v. McFarlane, 64 F.3d 

1235, 1238 (8th Cir. 1995) (“[I]f McFarlane’s sentence was to be increased, it would have to 

be by means of an upward departure as McFarlane ‘did not organize, lead, manage, or 

supervise another participant, but [instead] exercised management responsibility over the 

property, assets, or activities of a criminal organization.’” (quoting U.S.S.G. app. C, amend. 

500)); United States v. Bonilla–Guizar, 729 F.3d 1179, 1186 (9th Cir. 2013) (“[S]ome degree 

of control or organizational authority over others is required in order for section 3B1.1 to 

apply.” (internal quotation marks omitted)); United States v. Glover, 179 F.3d 1300, 1303 

(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. A finding involving 

just asset management may support only an upward departure.”); United States v. Graham, 

162 F.3d 1180, 1185 n.6 (D.C. Cir. 1998) (“An upward departure, as opposed to an adjustment, 

may be warranted for offenders who manage property, assets, or activities rather than 

people.” (citing U.S.S.G. § 3B1.1 cmt. n.2)). But see United States v. Parker, 553 F.3d 1309, 

1322 (10th Cir. 2009) (allowing the adjustment on either basis).

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