[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-12117

Non-Argument Calendar

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D.C. Docket No. 8:15-cr-00308-EAK-TGW-3

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

CESAR OSBALDO RODRIGUEZ, JR., 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(July 8, 2019)

Before ROSENBAUM, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

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Cesar Rodriguez, Jr., appeals his 180-month sentence after pleading guilty to 

several drug-trafficking offenses. On appeal, Rodriguez argues that the district court 

erred by applying a sentencing enhancement under U.S.S.G. § 2D1.1(b)(15)(C)

(2016), because the government failed to prove that he was “directly involved” in 

the importation of the drugs. We conclude that the record is insufficient to permit 

meaningful review, so we remand for the district court to clarify its sentencing 

decisions. 

I.

Rodriguez pled guilty to conspiracy to possess and possession with intent to 

distribute heroin and cocaine.

1

 During the plea colloquy, he admitted to selling 

heroin to confidential sources on seven occasions in 2015. One of the sales also 

included cocaine. A search warrant executed at his home revealed additional 

quantities of heroin and more than $60,000 in cash. 

The presentence investigation report (“PSR”)—after multiple revisions—

calculated a guideline imprisonment range of 210 to 262 months based on a total 

offense level of 34 and a criminal history category of IV. In calculating the offense 

level, the PSR applied § 2D1.1(b)(15)(C) (2016)2

, which provides for a two-level 

 1 Rodriguez pled guilty, without a written plea agreement, to one count of conspiracy to 

possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846;

seven counts of possession with intent to distribute heroin, in violation of § 841(a)(1); and one 

count of possession with intent to distribute heroin and cocaine, in violation of § 841(a)(1). 

2 This same provision now appears under U.S.S.G. § 2D1.1(b)(16)(C). 

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increase if the defendant both receives an aggravating-role adjustment under § 3B1.1 

and “was directly involved in the importation of a controlled substance.” The PSR 

stated that this enhancement applied because “[t]he defendant was a manager and 

supervisor within the conspiracy, and the case involved heroin imported from 

Mexico.” 

Rodriguez contested this enhancement in objections to the PSR, two 

sentencing memoranda, and arguments at sentencing. He maintained that he was 

not personally involved in the importation of heroin and that it was not enough that 

the offense involved heroin imported from Mexico.

At Rodriguez’s sentencing, which occurred over two days in April and May 

of 2018, the government called two case agents from the Federal Bureau of 

Investigation (“FBI”) to testify. Their testimony, along with facts from the PSR that 

are undisputed or no longer at issue, established the following. 

Rodriguez managed a heroin-trafficking organization based in Tampa, 

Florida, employing multiple “street-level dealers” to sell heroin for him. Some of 

the heroin Rodriguez distributed was imported from Mexico. This heroin was 

supplied by Jose Angel Cerrillo, who had connections to the Mexican drug cartel

that trafficked the heroin. The FBI determined that the heroin was being imported 

near Brownsville, Texas, where Cerrillo lived. Cerrillo transported the heroin from 

Brownsville to Tampa—either personally or through other couriers—using the 

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public bus system. Despite Cerrillo’s connections to the cartel, Rodriguez’s 

organization was not part of the cartel. 

In mid-July 2015, the FBI intercepted a phone call between Cerillo and 

Rodriguez in which Cerrillo stated that he was bringing 2.5 kilograms of heroin to 

Tampa for Rodriguez, who was then in Puerto Rico. On the date of Cerrillo’s 

scheduled arrival, law enforcement went to the bus terminal in Tampa and made 

contact with Cerrillo and Maria Zacharias, a courier coconspirator who, according 

to the PSR, “dealt directly with the suppliers in Mexico.” No drugs were found on 

Cerrillo, but he was arrested on an outstanding warrant and taken to jail. At the jail, 

Cerrillo called Zacharias and told her to pick him up when he bonded out. After she 

did so, they drove to a local hotel, retrieved the heroin, and then hailed a taxi to go 

to a Chinese restaurant, where the FBI believed Rodriguez’s people were waiting.

Law enforcement conducted a traffic stop of the taxi and found Cerrillo and 

Zacharias in possession of close to one kilogram of heroin. Post-arrest, Zacharias 

stated that this was the second trip she and Cerrillo had made, in conjunction with 

Rodriguez, in recent months. 

Special Agent Joseph Boland initially testified that, during the intercepted

phone call between Rodriguez and Cerrillo, Rodriguez told Cerrillo to go to a hotel 

in Tampa so that they could later arrange a pickup. Boland conceded on crossexamination, however, that the conversation about meeting at the hotel was between 

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Cerrillo and Zacharias, not Rodriguez, and that Rodriguez immediately hung up on 

Cerrillo after Cerrillo stated that he had “two and a half for you.”

After considering this evidence and argument from the parties, the district 

court adopted the undisputed aspects of the PSR and then resolved the disputed 

issues, including the importation enhancement, for the reasons “stated in the 

addendum” to the PSR. The addendum, however, addressed only drug quantity and 

the aggravating-role enhancement; it did not address the importation enhancement. 

The court then varied downward from the guideline range of 210 to 262 months and 

sentenced Rodriguez to 180 months of imprisonment. This appeal followed.

II.

We review the district court’s application of the Sentencing Guidelines de 

novo and its findings of fact for clear error. United States v. Smith, 231 F.3d 800, 

806 (11th Cir. 2000). The government bears the burden to prove the application of 

a disputed sentencing enhancement by a preponderance of the evidence. United 

States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). 

Section 2D1.1(b)(15)(C) of the 2016 Sentencing Guidelines provides that, if 

a defendant receives an adjustment under § 3B1.1 for an aggravating role and was 

“directly involved in the importation of a controlled substance,” his offense level is 

increased by two levels. U.S.S.G. § 2D1.1(b)(15)(C) (2016). The commentary 

offers the following guidance for applying this enhancement:

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Subsection (b)(15)(C) applies if the defendant is accountable for the 

importation of a controlled substance under subsection (a)(1)(A) of 

§ 1B1.3 (Relevant Conduct (Factors that Determine the Guideline 

Range)), i.e., the defendant committed, aided, abetted, counseled, 

commanded, induced, procured, or willfully caused the importation of 

a controlled substance. 

Id. § 2D1.1, cmt. n.20(B). In other words, the enhancement must be based on the 

defendant’s own conduct, not on the reasonably foreseeable acts of others in 

furtherance of jointly undertaken activity. See id.; U.S.S.G. § 1B1.3(a)(1)(B). 

Rodriguez argues that the evidence here fails to show a nexus between his 

conduct and the importation of the heroin. At best, he says, the evidence shows that 

he received (and then sold) heroin that had been imported into the United States at 

some point by a drug cartel through a person with connections to that cartel. 

We have not previously addressed what it means for a defendant to be 

“directly involved” in importation within the meaning of § 2D1.1(b)(15)(C) (2016). 

We have, however, considered a separate importation enhancement, which directs a 

two-level increase if “the offense involved the importation of amphetamine or 

methamphetamine.” See United States v. Perez-Oliveros, 479 F.3d 779, 783–84 

(2007). In Perez-Oliveros, we held that this enhancement—now under U.S.S.G. § 

2D1.1(b)(5)—did not “apply to only those defendants who themselves transport 

methamphetamine across the border.” Id. at 784. We reasoned that, if the 

Sentencing Commission had wanted § 2D1.1(b)(5) to apply to only the importation 

of methamphetamine, it would have used the more restrictive language it used in a 

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different subsection, “which applies a separate enhancement only ‘[i]f the defendant 

unlawfully imported or exported a controlled substance’ under certain 

circumstances.” Id. (quoting what is now U.S.S.G. § 2D1.1(b)(3)). But since the 

Commission chose the “more inclusive language ‘involved the importation,’” we 

gave the enhancement a “broader reading.” Id. However, we “decline[d] to define 

the exact contours of what it means for an offense to ‘involve[] the importation of .

. . methamphetamine,’” finding that the requisite level of involvement was met. Id.

(defendant transported drugs as part of an ongoing importation, even though he did 

not personally cross the border).

In light of Perez-Oliveros, we would have little difficulty concluding that 

Rodriguez’s offense “involved the importation” of heroin. But § 2D1.1(b)(15)(C) 

requires something more: that “the defendant was directly involved in the 

importation.” U.S.S.G. § 2D1.1(b)(15)(C) (2016) (emphasis added). This language 

indicates that the Sentencing Commission intended § 2D1.1(b)(15)(C) to apply more 

narrowly than § 2D1.1(b)(5). Cf. United States v. Biao Huang, 687 F.3d 1197, 

1205–06 (9th Cir. 2012) (“If the Sentencing Commission had intended to limit 

§ 2D1.1(b)(5) to defendants who personally imported methamphetamine, it would 

have used the more restrictive language it included in these other enhancements.” 

(referring to § 2D1.1(b)(3) and (b)(15)(C)); United States v. Rodriguez, 666 F.3d 

944, 946 (5th Cir. 2012) (“The scope of actions that ‘involve’ the importation of 

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drugs is larger than the scope of those that constitute the actual importation.”). It is 

not enough for the offense simply to have involved importation, even where the 

importation is the result of reasonably foreseeable acts of others in furtherance of 

the jointly undertaken criminal activity. See U.S.S.G. § 2D1.1, cmt. n.20(B). 

Instead, the defendant must have “committed, aided, abetted, counseled, 

commanded, induced, procured, or willfully caused the importation.” Id. 

Here, we cannot tell whether the district court made a factual finding beyond 

that the offense involved heroin imported from Mexico. The court stated that it 

resolved the disputed sentencing issues for the reasons “stated in the addendum” to 

the PSR, but the addendum did not address the importation enhancement. Assuming 

the court also meant to adopt the PSR’s explanation of the basis for the enhancement, 

that gets us no further than that “the case involved heroin imported from Mexico.” 

This statement, however, doesn’t explain Rodriguez’s personal involvement in the 

importation, nor does Rodriguez’s manager or supervisor role in the distribution of 

heroin imported from Mexico necessarily mean that he was “directly involved” in

its importation. 

Because we are unable to tell the basis for the district court’s application of 

the importation enhancement and whether that basis adequately supports the 

enhancement, we remand for further proceedings.3

 See United States v. Reid, 139 

 3 The government in its brief on appeal offers more precise grounds for applying the 

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F.3d 1367, 1368 (11th Cir. 1998) (“We cannot engage in meaningful appellate 

review of a sentence unless the district court sets out the facts underpinning the 

guidelines it applied in fashioning the defendant’s sentence or the record plainly 

establishes such facts.”). On remand, the court should clarify its grounds, based on 

the current record, for determining that Rodriguez was “directly involved” in the 

importation of heroin under § 2D1.1(b)(15)(C).

Alternatively, if the district court would have imposed the same sentence 

regardless of its resolution of the guideline issue, given that it imposed a sentence 

outside the guideline range, it may state as much and its reasons for doing so. See 

United States v. Focia, 869 F.3d 1269, 1287 (11th Cir. 2017) (“Where the district 

court states that it would have imposed the same sentence regardless of any 

guideline-calculation error, any error is harmless if the sentence would be reasonable 

even if the district court’s guideline calculation was erroneous.”); United States v. 

Keene, 470 F.3d 1347, 1349–50 (11th Cir. 2006) (same). 

VACATED AND REMANDED.

 

enhancement than it presented below, but we will not presume that the district court relied on these 

grounds when the court expressly cited to the PSR and the addendum as its bases for the ruling. 

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