UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-5202

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

ALEJANDRO VILLAREAL, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. 

Conrad, Jr., Chief District Judge. (3:07-cr-00195-RJC-4) 

Submitted: October 26, 2009 Decided: November 6, 2009 

Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion. 

F. Lane Williamson, GARLITZ & WILLIAMSON, P.L.L.C., Charlotte, 

North Carolina, for Appellant. Edward R. Ryan, Acting United 

States Attorney, Mark A. Jones, Assistant United States 

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Alejandro Villareal was convicted by a jury of 

conspiracy to distribute and possess with intent to distribute 

five kilograms or more of cocaine, 21 U.S.C. § 846 (2006) (Count 

One), and conspiracy to commit money laundering, 18 U.S.C. 

§ 1956(h) (2006) (Count Two), and was sentenced to a term of 360 

months imprisonment. He appeals his sentence, arguing that the 

district court clearly erred in finding that he was a manager or 

supervisor in the conspiracy, U.S. Sentencing Guidelines Manual

§ 3B1.1(b) (2008), and erred in calculating his offense level 

under USSG § 3D1.3(a). We affirm. 

 The evidence produced at trial established that 

Villareal was involved in a conspiracy that transported large 

amounts of cocaine from Mexico into the Rio Grande Valley area 

in Texas and then in tractor-trailer trucks to North Carolina, 

Florida, Georgia, New York and Texas for distribution. Large 

amount of currency — drug proceeds — were also transported 

regularly. Eduardo Saenz oversaw operations in Charlotte, North 

Carolina, and Villareal, his long-time friend, assisted him. As 

part of apparent counter-surveillance efforts, the conspirators 

made a practice of switching vehicles frequently while 

transporting drugs or money. Because they were in fact under 

surveillance for much of the year before Villareal’s arrest, 

many such vehicle-swaps were witnessed by law enforcement 

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agents. At Villareal’s trial, Yomil Prado and Jesus Balderas 

testified that they made trips to destinations in North Carolina 

and South Carolina under the direction of both Saenz and 

Villareal during which vehicles were switched. They were 

usually paid $2000 per trip, and received the money sometimes 

from Saenz and sometimes from Villareal. On some trips, both 

Saenz and Villareal were present, but frequently only Villareal 

made the trip with them. 

 Under USSG § 3B1.1(b), a three-level enhancement 

applies “[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.” Under 

Application Note 2 to § 3B1.1, to qualify for the adjustment, a 

defendant must have managed or supervised “one or more other 

participants.” An upward departure may be warranted if the 

defendant managed an organization’s property, assets or 

activities. Id. The district court’s factual finding 

concerning the defendant’s role in the offense is reviewed for 

clear error. United States v. Sayles, 296 F.3d 219, 224 (4th 

Cir. 2002). The court found that Villareal had a managerial 

position because he coordinated drivers, paid the drivers, 

handled large amounts of money, and acted independently of Saenz 

at times. We conclude that the district court did not clearly 

err in so finding. 

3 
 Villareal’s two counts of conviction were grouped 

together for sentencing purposes under USSG § 3D1.2(c). Under 

USSG § 3D1.3(a), when counts are grouped together pursuant to 

§ 3D1.2(a)-(c), the offense level for the group is the offense 

level “for the most serious of the counts comprising the Group, 

i.e., the highest offense level of the counts in the Group.” 

Accordingly, the district court determined that the adjusted 

offense level for the group was 43, the offense level for Count 

Two, the money laundering offense. The district court then 

varied downward to offense level 42. 

 Villareal contends on appeal that the district court 

misapplied § 3D1.3, which provides that, when counts are grouped 

together under § 3D1.2(c), the offense level for the group is 

the offense level for “the most serious of the counts comprising 

the Group, i.e., the highest offense level of the counts in the 

Group.” Villareal claims that “the most serious of the counts” 

should be taken to mean the count with the highest statutory 

maximum. 

 However, the guideline explicitly defines the term 

“the most serious of the counts comprising the group” as the 

count with the highest offense level. Villareal relies on 

United States v. Brinton, 139 F.3d 718 (9th Cir. 1998), as 

support for his interpretation, based on the appeals court’s 

statement that “since the [manufacturing counts] have the 

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potential to produce the highest offense level, the group 

offense level should be determined under the guideline 

applicable to those offenses.” Id. at 722. However, Brinton

did not address the interpretation of § 3D1.3(a) that Villareal 

seeks to advance here. See United States v. Eversole, 487 F.3d 

1024, 1032-33 (6th Cir. 2007) (the Brinton “court did not 

calculate the respective offense levels . . . nor did it 

explicitly hold that the ‘seriousness’ determination is 

controlled by the statutory maximum sentence”). Eversole went 

on to reject the interpretation of § 3D1.3(a) urged here by 

Villareal and the view that Brinton “tacitly” supported that 

view. Two other circuits have also rejected Villareal’s 

interpretation of § 3D1.3(a). United States v. Kroeger, 229 

F.3d 700, 703-04 (8th Cir. 2000) (“[T]he most serious count is 

not the count with the greatest available maximum statutory term 

of imprisonment; it is the count with the highest offense 

level”); United States v. Evans, 318 F.3d 1011, 1020 (10th Cir. 

2003) (same). We find no error in the district court’s 

calculation of Villareal’s offense level. Because his claims of 

error are without merit, Villareal is not entitled to 

resentencing. 

 We therefore affirm the sentence imposed by the 

district court. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

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materials before the court and argument would not aid the 

decisional process. 

AFFIRMED