1 This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 8/21/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARMANDO NELSON PELLIERE, Defendant-Appellant. No. 95-3321 (D.C. No. 93-CR-40003-03)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , LOGAN , and BRISCOE , Circuit Judges.

This is an appeal from resentencing in a criminal c ase in which DefendantAppellant Armando Nelson Pelliere pled guilty to po ssession with intent to distribute cocaine hydrochloride. The charges agai nst Pelliere in this case stem from his participation in a large drug conspiracy i nvolving numerous coconspirators who imported cocaine from Panama anddistributed it in Junction City, Kansas. Pelliere was charged in two counts o f a multi-count indictment- 2 -

with conspiracy to possess crack cocaine with intent to distribute in violation of 21 U.S.C. § 846, and with possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea agreement, Pelliere pled guilty to the possession charge, and the governmentdismissed the conspiracy charge. In sentencing Pelliere, the district courtimposed a three-level enhancement for Pelliere’s role in the offense as m anager or supervisor of the drug distribution scheme, U.S.S.G. § 3B1.1(b), and a two-level enhancement for obstruction of justice, U.S.S.G. § 3C1.1. Pelliere appealed his sentence to this court in United States v. Pelliere , 57 F.3d 936 (10th Cir. 1995). On appeal, this court reversed the obstruction of justice enhanceme nt and remanded the case for specific factual findings regarding Pelliere’s role in the offense. Pelliere , 57 F.3d at 940. On September 11, 1995, Pelliere was resent enced. In support of its position, the government presented the same evidenc e previously presented, as well as additional testimony. After reviewing all of the evidence presented, the district court found Pelliere to be a supervisor ormanager under U.S.S.G. § 3B1.1(b) and enhanced Pelliere’s Guideline level bythree points. Pelliere was sentenced to 95 months imprisonment and four years supervised release. Pelliere once again appeals the findings of the district cou rt. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM

.- 3 - I. United States Sentencing Guideline 3B1.1(b) provide s a three level enhancement for those offenders who are determined to be a “manager or supervisor (but not an organizer or leader) [of a] criminal activity [that] involve[s] five or more participants or was otherwi se extensive . . . .” Under Application Note 1 to this guideline, a “participant” is defined as someone who is criminally responsible for the commission of the of fense, but need not have been convicted of that offense. A manager or supervisor must have decision-making authority or control over a subordinate. United St ates v. Roberts , 14 F.3d 502, 524 (10th Cir. 1993). “[I]n order for a defendant to receive an adjustment under § 3B1.1(b) for his role as a manger or supervisor, th e defendant must have managed or supervised at least one other participant.” Uni ted States v. Johnson , 4 F.3d 904, 917 (10th Cir. 1993) (citation and internal qu otation marks omitted), cert. denied , 510 U.S. 1123 (1994). The government has the burden of proving by a prepo nderance of the evidence any sentence enhancement it asserts the co urt should impose. See United States v. Torres , 53 F.3d 1129, 1142 (10th Cir.), cert. denied , 115 S. Ct. 2599 (1995). The district court in this case concl uded that the government had met its burden under § 3B1.1(b) and therefore enhan ced Pelliere’s sentence. The district court’s findings of fact as to aggravating role are reviewed for clear error;- 4 -

the application of those facts to the guidelines is reviewed de novo . Pelliere , 57 F.3d at 940.
II. “In enhancing a defendant’s sentence based on his r ole in the offense, a district court must make specific factual findings as to that role.” Roberts , 14 F.3d at 522 (citation and internal quotation marks omitted). On Pelliere’s first appeal to this court, this court concluded that the district court had made inadequate factual findings to support its determin ation that Pelliere was a manager or supervisor under § 3B1.1(b). Pelliere , 57 F.3d at 940 (“Although the court . . . concluded that an enhancement was prope r, it articulated no specific findings to support its decision. Here . . . appel late review of the propriety of applying this serious enhancement is hindered by th e absence of a clear picture of the reasoning employed by the sentencing court.”) ( citation and internal quotation marks omitted). The court further stated that “[s] pecific fact findings are particularly vital in this case” because some of th e evidence relied upon by the government was hearsay. Id. While the court acknowledged that “the district court may use reliable hearsay testimony in determining an appropriate se ntence,” id. (emphasis added), this court concluded that the di strict court erred because it “did not specify what particular hearsay statements it was relying upon, nor did it make any assessment of reliability,” id.1 That the following evidence was considered by the district court in

enhancing Pelliere’s sentence under § 3B1.1 is clea r from the district court’s memorandum and order dated September 15, 1995, whic h constitutes the court’s findings regarding the enhancement. R.O.A., Vol. I , doc. 416. - 5 - On this appeal, Pelliere argues that the district c ourt erred at resentencing in enhancing his sentence because the factual findi ngs of the district court were not supported by the evidence. We disagree. The e vidence presented to the district court can be summarized as follows. 1 First, Lisa Ponder indicated in her grand jury testimony that she was the girlfriend of Armando Pelliere, the defendant, during the period of June 1992, and thaton June 17, 1992, Pelliere and Marcos Torres came to her apartment to ask her to m ake a trip to New York to pick up “their stuff” (cocaine). R.O.A., Vol. V at10-11. Ponder stated that the money provided for her trip to New York belonged to “Porsche” (Torres) and “Armando” (Pelliere). Id. at 12-14. Ponder further testified that after the arrangements had been made for her trip to New York , she put on a girdle and Pelliere packed it with $21,000.00 in cash. Id. at 18-19. Finally, Ponder testified that she was advised by her previous boyfriend, Charles Arevalo, who obtained cocaine from Torres, that while Torres was in Panam a, Pelliere and another individual were “taking his business, were running his business.” Id. at 62. She stated that Torres was out of the country for appro ximately three to four months during the fall of 1991. Id.- 6 -

Second, on September 23, 1992, Anthony Felix testif ied under oath before a federal grand jury in Topeka, Kansas. While most o f Felix’s testimony related to Torres, he did indicate that while Torres was in Pa nama during the Fall of 1991 his roommate, Roland Mitchell, was receiving cocain e from Pelliere and that “Armando was more or less running the operation whi le Porsche (Torres) was in Panama.” R.O.A., Vol. IV at 10. Third, Darryl Jac kson also testified under oath on September 23, 1992, before the grand jury invest igating this case. He testified that at one point he used to sell small amounts of cocaine for Torres. R.O.A., Vol. VI at 4-6. He indicated that shortly after To rres left the country in approximately August of 1991, he was visited by Pel liere and Nagro (Alcides Plato) who delivered cocaine for resale. Id. at 16-17. Jackson described Plato as Pelliere’s “flunky.” Id. Jackson stated that after this visit, he continue d to deal with Pelliere, and indicated that after Torres retu rned from Panama he “stuck” with Pelliere. Id. at 18. Jackson also testified at Pelliere’s resentencing i n September of 1995. At that hearing Jackson indicated that during a meetin g between himself, Torres, Plato and Pelliere, he was advised that in Torres’ absence he was to obtain cocaine from Plato and Pelliere. R.O.A., Vol. VII at 10-11. Jackson testified that during the approximately six month period that Torr es was out of the country he obtained his cocaine through Plato and Pelliere. I d. Jackson testified that he- 7 -

believed Pelliere controlled the source of cocaine. Id. at 13. He also stated that it was his impression, based on his experience, that P elliere was running the Torres cocaine operation while Torres was in Panama, and t hat neither he nor Plato could obtain cocaine without first contacting Pelliere. Id. at 14. Finally, United States Customs Agent Jim Kanatzar, the agent assigned to investigate the case, testified before the court atthe sentencing hearing held on February 16, 1994. Agent Kanatzar indicated that a ll of the information provided by witnesses Lisa Ponder, Anthony Felix and Daryl J ackson was corroborated by other facts collected in the investigation. R.O.A. , Vol. III at 24-26. He also testified generally about Pelliere’s position in th e drug distribution process while Torres was in Panama, indicating that Pelliere was responsible for picking up the cocaine orders from Plato and returning the cocaine to Plato for distribution. Id.
at 20-25. Based on this evidence the district court found Pel liere to be a manager or supervisor pursuant to § 3B1.1. The court found th at “the government had introduced reliable evidence demonstrating by a pre ponderance of the evidence that Pelliere was a manager or supervisor in the cr iminal conspiracy to distribute cocaine.” R.O.A., Vol. I, doc. 416 at 4. We agree . Jackson, Ponder and Felix all testified to Torres’ absence from the United States during the fall of 1991. They all indicated that the drug trafficking business wa s continued, at least in part,2 Pelliere concedes that Ponder made a trip to New Yo rk in order to

purchase cocaine, and that he assisted Torres when Ponder made the trip. Br. of Appellant at 9 (“That Lisa Ponder undertook a trip to New York to purchase cocaine for Marcos Torres’ operation is not in issu e, nor is it in issue that defendant Pelliere assisted Torres when Lisa made the trip.”). - 8 - under the supervision of Pelliere. These were witn esses who had firsthand knowledge of the Torres organization and, for the m ost part, were involved in it. 2 With respect to Jackson specifically, not only did he testify under oath during the grand jury investigation, he also testified during Pelliere’s resentencing hearing. Thus, the district court had the opportunity to mak e a personal, first-hand assessment of Jackson’s credibility. Each of the w itnesses testified independently to facts sufficient to sustain an enhancement under§ 3B1.1. The district court’s determination that the witnesses were credible and that the evidence demonstrates that Pelliere was a manager or supervisor of a crim inal enterprise that involved3 There is no dispute that this enterprise involved f ive or more participants. The only issue on appeal is whether Pelliere was a supervisor or manager within the enterprise. We do note, however , that based upon the discussion above and our review of the record, it i s clear that the enterprise included at least the following six individuals: M arcos Torres, Alcides Plato, Anthony Felix, Daryl Jackson, Lisa Ponder, and Pell iere himself. See United States v. Cordoba , 71 F.3d 1543, 1547 (10th Cir. 1995) (the defendant is included among the participants for the purposes of section 3B1.1). - 9 - five or more participants was not clearly erroneous

. 3 We therefore AFFIRM Pelliere’s sentence.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge