NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0311n.06 No. 05-2445 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. NORBE RTO QUI

NTANA , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Be fore : CL AY and KETHL EDGE, Circuit Judges, DO W, Dist rict Judge. * KETHL EDGE, Circuit J udg e. A jury co n v i cted Norbe rto Quintana of eng ag ing in a continuing criminal enter

prise for his marijuana and coca ine operations. The district court sentenc ed him to life i n p ri s o n and imposed a $5,580 fine. He appea ls, challeng ing the sufficie ncy of the evidenc e and the admission of an exhibit , as we ll as his sentence . We affir m. I

. I n May of 2004, Quintana was indicted for conspirac y to distribute marijuana and coca ine. L ater the g overnme nt issued a superc eding indictment, char g ing him with eng ag ing in a continuing criminal enter

prise in violation of 21 U.S.C. § 8 4 8

. A jury hear d testimony from five coconspirator s, a jailhouse informa nt, and law enfor ceme nt a g ents, supplemented by a phone- rec ord

The Honora

ble Robert M. Dow J r., United States District J udg e for the Norther n District of * I llinois , sitti ng by

desig nation.No. 05-2445

United States v. Quintana summary compiled by the Drug Enforc ement Ag ency . After a four- day trial, the jury found Quintana g uilt y . At sentenc ing, the court noted that his prese ntencing repor t indicated a criminal-history cate g ory of I an d an o ff

ense level of 43 (which the court later reduc ed to 42). The g uidelines

rec ommended an imprisonment ter m betwee n 360 months to l ife. The g overnme nt reque sted an upwar d depar ture under § 4A1.3 of the g uidelines, arguing that Quintana’ s score understate d his true criminal history beca use serious y et unprosec uted crimes had not be en assig ned criminal-history points. The pre sentenc e re port containe d detailed information about a L os Ang eles murder char g e that Quintana fac ed in 1985 (un d er t h e n am e J uan J ose Ace vedo). Quintana fled to Mexi co, and trea ty reque sts to prosec ute him there went unrec og nized. The PSR also contained information about drug char g es that Quintana fac ed in Colora do in 1996. He had delivere d nine ounces of coca ine to an underc over office r, but then failed to appea r at trial. Be cause of these crimes, the court found that cate g ory I V best repr esente d his criminal history

. That chang e in cate g ory , howeve r, did not chang e Quintana’ s g uidelines rang e. The court sentenc ed him to life in prison and imposed a fine of $5,580, below the g uideline rec ommendations of $25,000 to $2,000,000. Qu i n t an a filed a ti mely notice of appea l, but his counsel failed t o file a brief. I n 2010, we reinstated his a

ppeal. I I

. A. Quintana f

irst arg ues that the e vidence was insuffic ient to convict him. Quintana failed t o make a Rule 29 m o t i o n fo r acquittal, so we revie w his sufficie ncy challeng e only for a “manife st -2-No. 05-2445

United States v. Quintana miscarr iag e of justice,” which “exists only if t h e rec ord is devoid of evidenc e pointing to g uilt.” United States v. W

alden , 625 F.3d 961, 967–68 (6th Cir. 2011) (internal citations omitt ed). H ere , the eleme nts of Quintana’ s continuing- criminal-e nterprise offe nse ar e the f ollowing: (1) that the defe ndant committed a felony violation of fede ral narc otics laws; (2) that the violation was part o f a co ntinuing series of three or more drug offe nses committed by the defe ndant; (3) that the defe ndant committed the series of offe nses in conce rt with five or more persons; (4) that the defe ndant acte d as an org anizer, s upervisor, or manag er with reg ard to these five or more persons; and (5) that t h e defe ndant obtained substantial income or resour ces f

rom this series of violations. United St ates v. Burns , 298 F.3d 523, 535 (6th Cir. 2002) (internal citations omitted); see also 21 U.S.C. § 848(c). Quintana contends that the g overnme nt did not prove that he org aniz ed , s u pervised, or manag ed five or mor e p er s o n s . When a person broker s the defe ndant’s purcha ses, transports his drug s, arr ang es for storag e, or car ries out his transac tions, that person is acting under the defe ndant’s control. See United States v. English , 925 F.2d 154, 157 (6th Cir. 1991). A person can be controlled

even without persona l contac t. See United States v. Davis , 809 F.2d 1194, 1204 (6th Cir. 1987). But

mere ly proving a buy er- seller r elationship betwee n the allege d org anizer and five people does not suffice to show manag ement. See U nited States v. Elder , 90 F.3d 1110, 1123 ( 6th Cir. 1996). The g overnme nt argued at trial that Quintana had manag ed seven people. But Quint an a argues that he did not “org anize, supervise, or manag e” three of them—Migue l Santos, Armando Santos Gay

ton, and I ram—to the extent require d for a continuing criminal enter prise. There fore , the g overnme nt only needs to prove that Quintana manag ed one of the three contested men for his conviction to stand.

-3-No. 05-2445

United States v. Quintana As a threshold matter, Quintana contends that a person must pa rticipate in three or more of the enterprise’s drug offe nses t o be counted as a manag ee unde r § 848(c ). He did not prese nt this leg al argument to the district court, howeve r, so he forf eited it. See Armstrong v. City of Melv indale , 4 3 2 F.3d 695, 699–700 (6th Cir. 2006). Moreove r, we have considere d and reje cted t h i s p re ci s e argument in United States v. A ve r y , 128 F.3d 966, 973 (6th Cir. 1997). We decline to adopt Quintana’ s interpre tation. Quintana first disputes that he manage d Migue l Santos. Santos acc ompanied Quintana to Chicag o to pick up marijuana on one occa sion, delivere d Quintana ’s drug s on another , and cut

coca ine at Quintana’ s Towing , the bus iness Quintana used as a front for his coca ine di str i b u t i on. Quintana contends that his mere prese nce with Santos on a drug -transpor tation trip is not sufficie nt to show that Quintana controlled him. Even if that wer e true, howeve r, a jury could find that Santos

was acting under Quintana’ s supervision based upon the other two incidents cited. See English , 925 F.2d at 157–58. Quintana next argues that he did not manag e Armando S an tos Gay ton, since Gay

ton was unilatera lly

rec ruited by another (undisputed) Quintana manag ee, Titi. The re cord c ontains ample evidenc e that Gay

ton sold drug s, trave led to and from Chicag o to g et coca ine, and cut and delivere d

coca ine for Titi. But Gay ton al s o t es t i fi ed that he picked up drug s at Quintana’ s house on some

occa sions f

or Quintana. And Titi testified that he and Gay ton mixed a

nd cut coca ine for Quintana at Gay ton’s apar

tment. This ev i d en ce was enoug h for a jury to find that Gay ton worke d for Quintana. See id.

-4-No. 05-2445

United States v. Quintana Quintana next contends that I ram was simply a customer rathe r than a manage e. T he g overnme nt did not show that they share d more than a buy er- seller r elationship, so I ram cannot count toward the five-ma

nag ee r equire ment. See E lder , 90 F.3d at 1123. Quintana conce d es that the g overnme nt prese nted evidenc e that he manag ed four other people. AddingSantos and Gay ton makes a total of six manag ees, w hich satisfies that element of the offe nse. I t would not be a “manife st miscarr iag e of justice” to let Quintana’ s conviction stand. See W alden , 625 F.3d at 967–68. B. Qu intana next argues that the district court err ed in admitting the summary exh i b i t o f telephone calls he and others had made at trial. Quintana did not object to the summary ’s admission at trial, so we revie w the court’s decision for plain err or. See United States v. Modena , 302 F.3d 626, 632 (6th Cir. 2002). To be admissible, a summary exhibi t “must be acc urate and nonprejudicia l” and “prope rly introduced throug h the testimony of a witness who supervised its prepa ration.” Id. at 633;

see also Fe d. R. Evid. 1006. The document must summarize the underly ing documents “ac curately ,

corr ectly , and in a nonmisleading manner ” and should not be “embe llished” with “infe renc es draw n by the propone nt[ .]” United States v. Bray , 139 F.3d 1104, 1110 ( 6th Cir. 1997). Quintana notes that “Dr

ug Enforc ement Ag ency

” was printed at the top of eac h of the nine pag es of the s ummary . He arg ues t hat this tit le implied that the hundreds of telephone calls listed in the summary all conce rned drug activity

. But the summary did not contain any embellishments other than the name of the ag ency that prepa red it. And at trial the g overnme nt offe red compelling , unrebutted evidenc e of Quin t ana’ s continuing criminal enter prise—such as the testimony of his -5-No. 05-2445

United States v. Quintana manag ees—w ithout re gar d t o the summary . See Modena , 302 F.3d at 633. Quintana cannot demonstrate that the district court committed plain err or in admitting the doc ument. Additionally , Quintana claims that the phone summary lacke d a proper foundation, since the office r who introduced the summary did not specific ally testify that he super vised its prepar ation. But the office r testified that he obtained Quintana’ s telephone rec ords, that those rec ords wer e computerized, and that he obtained the computerized summary . I f there was any err or by the district court, it was not plain. C. Qu i ntana also argues that the court abused its discretion during sentenc ing by depar tin g upwar d from criminal-history cate g ory I to cate g ory I V. The g overnme nt responds that the depar ture did not incre ase Quintana’ s sentenc e, since the g uidelines rec ommend betwee n 360 months’ to life imprisonment for the offe nse level of 42, reg ardle ss of criminal-history cate g ory . See U.S.S.G. Ch. 5. (2004 ed.). Al t h o u gh Quintana’ s g uidelines rang e did not chang e based upon the upwar d depar ture, the c ourt used it to demonstrate why he dese rved life imprisonment. Her e, the court depar

ted upwar d under § 4A1.3 of the g uidelines , based upon the pending char g es for the 1985 L .A. murder and the 1996 Colorado drug traff icking

. Quintana did not object to that section of the prese ntence repor t, and thus acc epted t h o s e factual alleg ations. See United States v. Vonner , 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (interna l citations omitted). The court

rea soned that, if Quintana had been convicted of those char g es, he would have rec eived at least three criminal-history points for eac h. The court added an additional point for Quintana’ s “proc livity to

esca p e wh i l e o n bond,” which was the rea son why those char g es wer e still pending and not y et -6-No. 05-2445

United States v. Quintana resolved. The addition of those seven criminal-history points was rea sonable, and put Quintana in cate g ory I V. Quintana argues that the district court improperly classified him in cate g ory I V without first considering cate g ories I I or I I I , as require d by United States v. Kennedy , 893 F.2d 825, 828–29 (6th C i r. 1 9 9 0 ). But the district court sufficie ntly explained its rea soning by outlining the number of

cr i m i n al-history points war rante d by eac h of Quintana’ s rele vant criminal acts. And points are a more pre cise measure of a defenda nt’s criminal hi story than categ ories. The dist rict court did not abuse its discre tion. Quintana also argues that the court improperly attempted to influence his Bur eau of Prisons’ classification, since the Bur eau uses a defe ndant’s criminal-history cate g ory to deter mine wher e he will be confine d. But the court did not asser t authority over the location of Quintana’ s confine ment; rathe r, the court mere ly attempted to rende r to the Bur eau an acc urate assessment of the safe ty risk that Quintana pose d. His arg ument fails. D. Finally , Quintana argues that the district court’s imposit ion of a $5,580 fine was proce durally

unrea sonable. Although Quintana did not object to the fine at the sentenc ing hear ing, the court failed to ask, afte r imposing the sentenc e, if the parties had any o b j ec t i o n s t h at had not previously been raised. We there fore revie w for an abuse of discretion rathe r than for plain err or. See United States v. Z akharia , 418 F. App’x 414, 423 (6th Cir. 2011). Quintana ha d the burden of establishi ng that he was not able to pay all or part of t he fine. See United States v. Tosca , 18 F.3d 1352, 1354 (6th Cir.1994). I n Tosca , we upheld a $7,500 fine that the defe ndant could pay in installments from his -7-No. 05-2445

United States v. Quintana I nmate Financ ial Responsibili ty Prog ram ear nings

. S ee i d. at 1354–55. Although Tosca’ s prese ntencing repor

t indicated that he had no income or assets, he d i d n o t object to the fine at t he sentenc ing hear ing. See id. at 1353–54. The district court made no finding s on the rec ord reg arding Tosca’ s ability

to pay , but we infe rre d that the district court ha d considere d the proba bility that he could ea rn enoug h in prison to pay the fine in installments. See id. at 1355. Her e, the prese ntence repor t noted that Quintana repo rt ed no assets or income and that he would likely be unable to pay a fine within the g uidelines rang e—fr om $25,000 to $2,000,000—at the time of sentenc ing. But the prese ntence repor t also rec ommended a $5,580 fine, “base d on a life

ex pecta ncy of 25 y ear s or 300 months.” Quintana did not object to the rec ommendation. At sentenc ing, the court imposed the fine afte r stating that it had considere d his ability to pay . The court also indicated that Quintana could pay in quarte rly or monthly installments, based upon his I nmate Financ ial Responsibili ty

Prog ram e arning s. We see no abuse of discre tion. The district cour

t’s judgme nt is affirmed.

-8-