In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-3275 & 08-3418

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESUS N. GONZALEZ-MENDOZA AND

OMAR ALEJANDRO GONZALEZ-VILLA,

Defendants-Appellants.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 05 CR 844—Samuel Der-Yeghiayan, Judge.

ARGUED SEPTEMBER 10, 2009—DECIDED OCTOBER 14, 2009

Before MANION, SYKES, and TINDER, Circuit Judges.

MANION, Circuit Judge. Omar Alejandro Gonzalez-Villa

(“Villa”) and Jesus N. Gonzalez-Mendoza (“Mendoza”)

pleaded guilty to conspiring to distribute or possess

with intent to distribute heroin and cocaine. The district

court sentenced Villa and Mendoza to 142 months’ and

130 months’ imprisonment, respectively. They appeal

their sentences, and we affirm.
2 Nos. 08-3275 & 08-3418

I.

At the direction of law enforcement agents, a

confidential informant pretending to be interested in

purchasing a truck approached Villa, who had advertised

one for sale. The conversation evolved into a discussion

about narcotics. The informant secretly recorded the

conversation as he and Villa discussed the price of

a kilogram of heroin, and Villa later provided the informant with a sample of heroin. The next day, agents conducted a stop of Villa’s vehicle near his residence.

During the course of the stop, Villa told agents that

inside a pickup truck in his garage was a suitcase containing a large sum of cash and eight kilograms of cocaine. Villa also consented to a search of his house and

garage. Inside the pickup truck in the garage, agents

discovered a suitcase containing $312,000 in cash and a

duffel bag containing three kilograms of heroin and four

kilograms of cocaine. Villa then told agents that he was

from Mexico and was in Chicago to oversee drugs and

drug proceeds for a Mexican cartel. Villa also stated that

he received $1500 per week for carrying out his oversight responsibilities.

When agents searched Villa’s house, they encountered

Mendoza, Villa’s 19-year-old brother-in-law from Mexico

who had been living in the house for two months. When

questioned by agents shortly after they entered the

house, Mendoza stated he had packed the currency

found in the suitcase at Villa’s direction and that he

had previously wrapped money on Villa’s instruction.

Mendoza also admitted he knew the money was drug

proceeds. Mendoza was questioned by agents a second
Nos. 08-3275 & 08-3418 3

Villa originally challenged the district court’s denial of his 1

motion to suppress in his opening brief. We subsequently

granted his motion to withdraw that argument.

time at the residence and a third time at a police station;

both times he repeated that he had wrapped the money

in the suitcase at Villa’s direction, although he did not

say he knew the currency was drug proceeds.

Villa and Mendoza were indicted for conspiring to

distribute or possess with intent to distribute heroin

and cocaine, as well as possession with intent to

distribute the same. Villa also was charged with one

count of distributing heroin based on the sample he

provided to the confidential informant. The defendants

filed motions to suppress evidence and statements they

had made to agents, which the district court denied. Villa

and Mendoza then entered guilty pleas to the count

of conspiring to distribute or possess with intent to distribute heroin and cocaine.

At sentencing, the district court enhanced Villa’s Guidelines offense level by two levels for being a manager or

supervisor in the offense and denied his request for a

safety-valve adjustment. The court enhanced Mendoza’s

offense level by two levels after finding he had obstructed

justice by making false statements in his affidavit in

support of his suppression motion, and the court did not

reduce his offense level for acceptance of responsibility.

The district court then sentenced Villa and Mendoza to

142 months’ and 130 months’ imprisonment, respectively.

The defendants now appeal, challenging their sentences.1
4 Nos. 08-3275 & 08-3418

The Guidelines do not define the terms “manager” or 2

“supervisor.” Although application note 4 to § 3B1.1 instructs

that the following seven factors are to be used to distinguish

organizers/leaders from managers/supervisors, we have

concluded “that they are still relevant in ascertaining whether

an individual had a supervisory role at all,” United States v.

Howell, 527 F.3d 646, 649 (7th Cir. 2008): (1) the exercise of

decision making authority; (2) the nature of participation

in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the

crime; (5) the degree of participation in planning or organizing

the offense; (6) the nature and scope of the illegal activity; and

(7) the degree of control and authority exercised over others.

II.

A. Villa

On appeal, Villa first argues that the district court

erred by enhancing his offense level for serving as a

manager or supervisor of criminal activity under U.S.S.G.

§ 3B1.1(c). We review a district court’s determination

that a defendant played a managerial or supervisory

role in an offense for clear error. United States v. Pira,

535 F.3d 724, 730 (7th Cir. 2008).

Under § 3B1.1(c), a two-level increase in a defendant’s

offense level is warranted if the criminal activity

involved fewer than five participants and the defendant

was an “organizer, leader, manager, or supervisor.”2

Villa contends that the § 3B1.1(c) enhancement cannot

be applied unless he exercised some element of control

over another participant in the offense. There is some
Nos. 08-3275 & 08-3418 5

Compare, e.g., United States v. Anderson, No. 08-2925, slip op. at 3

22, 2009 WL 2778236, at *9 (7th Cir. Sept. 3, 2009) (stating that

§ 3B1.1 enhancement “cannot be applied unless the defendant

exercised some control over others involved in the commission

of the offense” (quotation marks and citations omitted)), and

United States v. Fones, 51 F.3d 663, 668-70 (7th Cir. 1995) (holding

that § 3B1.1 enhancement was improperly applied where

defendant lacked control of or authority over another participant), with Pira, 535 F.3d at 730 (stating it is not necessary

“ ‘that the defendant exercised control, so long as the criminal

activity involves more than one participant and the defendant

played a coordinating or organizing role.’ ” (quoting United

States v. Carrera, 259 F.3d 818, 827 (7th Cir. 2001))).

Villa argues that fact is not indicative of his control over 4

Mendoza, but merely shows he and Mendoza were co-conspirators who divided responsibilities. That is not the most reasonable characterization of Mendoza’s statement. But assuming

that characterization is plausible, we will not find clear error

when the fact finder has chosen between two permissible

views of the evidence. United States v. Hatten-Lubick, 525 F.3d

575, 580 (7th Cir. 2008).

tension in our case law on this point. But even if control

3

over another participant is the sine qua non for an enhancement under § 3B1.1, there was evidence that Villa

exercised control over Mendoza: Mendoza told agents

he had packed the money in the suitcase at the direction

of Villa and that he had done so on other occasions.4

In addition, Villa admitted he was in Chicago to oversee

drugs and drug proceeds for a Mexican cartel, which

suggests he played a coordinating or organizing part in

the criminal activity. For these reasons, the district court

did not clearly err by finding that Villa occupied a man-
6 Nos. 08-3275 & 08-3418

Section 3C1.1 provides: “If (A) the defendant willfully 5

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction,

and (B) the obstructive conduct related to (i) the defendant’s

offense of conviction and any relevant conduct; or (ii) a

closely related offense, increase the offense level by 2 levels.”

agerial or supervisory role and enhancing his offense

level accordingly under § 3B1.1(c).

Villa also argues that the district court erred by finding

he did not qualify for a two-level “safety valve” adjustment

under U.S.S.G. §§ 2D1.1(b)(11) and 5C1.2. One requirement for safety-valve relief is that the defendant was not

a manager or supervisor of others in the offense, U.S.S.G.

§ 5C1.2(a)(4); therefore, our affirmance of the district

court’s § 3B1.1(c) enhancement of Mendoza’s offense

level for being a manager or supervisor forecloses that

argument. United States v. Sainz-Preciado, 566 F.3d 708,

715 (7th Cir. 2009).

B. Mendoza

Mendoza’s first argument is that the district court erred

by enhancing his offense level under U.S.S.G. § 3C1.1

for obstructing justice. Our review of a district court’s 5

factual findings supporting a § 3C1.1 enhancement is for

clear error. United States v. Powell, 576 F.3d 482, 498

(7th Cir. 2009).

In his motion to suppress the statements he made

to agents, Mendoza asserted that he was subjected to
Nos. 08-3275 & 08-3418 7

custodial interrogation prior to receiving his Miranda

warnings. In his affidavit in support of the suppression

motion, Mendoza claimed that he was handcuffed immediately after agents entered the house, was then taken

to the garage and questioned, and did not receive any

Miranda warnings until he arrived at the police station. At

an evidentiary hearing, however, an agent testified

that Mendoza was not handcuffed immediately upon

the entry of agents into the residence, but was only escorted to the living room and asked some questions

while agents conducted a search of the house. The same

agent also stated that after the initial questioning,

Mendoza was given Miranda warnings by another agent

while inside the residence before being questioned a

second time. The district court credited the government

agent’s account of events at the house, found Mendoza’s

version false, and enhanced Mendoza’s offense level for

obstruction of justice. We will assume, as both parties

concede, that the district court’s enhancement was

based on a finding of perjury.

According to application note 4(b) to § 3C1.1, “committing, suborning, or attempting to suborn perjury” is an

example of conduct to which the enhancement applies.

Perjury occurs “when a witness testifying under oath

gives false testimony about a material matter with the

willful intent to provide false testimony, instead of as a

result of confusion, mistake, or faulty memory.” United

States v. Price, 516 F.3d 597, 607 (7th Cir. 2008) (citing

United States v. Dunnigan, 507 U.S. 87, 94 (1993)).

Mendoza argues that the statements he made in his

affidavit were not false. We give special deference to a
8 Nos. 08-3275 & 08-3418

“Material” information is “information that, if believed, 6

would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1 app. n.6.

district court’s credibility determinations, however,

which seldom constitute clear error. United States v.

White, 240 F.3d 656, 661 (7th Cir. 2001). Because the

district court’s view of the evidence presented during the

suppression hearing and in Mendoza’s affidavit

was plausible, we will not re-weigh the evidence. See

id. at 660-61.

Mendoza also claims that his statements, even if false,

were legal in nature rather than factual and thus could

not have been material. Not so. Mendoza’s statements

were factual: they asserted that the circumstances surrounding his questioning by agents transpired in a

certain way. And those statements were clearly material. Mendoza’s claim that he was handcuffed immedi- 6

ately after agents entered the residence bore on whether

he was in custody when he was first questioned and

thus whether he was entitled to Miranda warnings at

that point in time. His claim that he was not given any

Miranda warnings until after he was taken to the police

station was relevant to determining whether he was

improperly interrogated without such warnings when

questioned the second time at the residence. Had the

district court believed Mendoza’s assertions in his affidavit, Mendoza’s motion to suppress the statements he

gave to agents might have been granted; hence, those

assertions were material. For these reasons, the district
Nos. 08-3275 & 08-3418 9

The government argues that Mendoza either waived or

7

forfeited this argument by not raising it in the district court.

Had Mendoza raised the issue, our review would be for

clear error. United States v. Messino, 382 F.3d 704, 709 (7th Cir.

2004). Because we conclude Mendoza cannot prevail under

the clear error standard of review, we need not decide

whether he waived or forfeited the argument.

court’s application of the § 3C1.1 obstruction of justice

enhancement was not clearly erroneous.

Mendoza also argues that the district court erred in

finding he did not qualify for an acceptance of responsibility offense level reduction. Under U.S.S.G. § 3E1.1(a), 7

a sentencing court may decrease a defendant’s offense

level by two levels if he “clearly demonstrates acceptance

of responsibility for his offense.” But a defendant

whose sentence was properly enhanced for obstruction

of justice is presumed not to have accepted responsibility. United States v. Davis, 442 F.3d 1003, 1009 (7th Cir.

2006). Only when exceptional circumstances are present

will that presumption be overcome. Id. at 1009-10.

As discussed above, the district court’s enhancement

of Mendoza’s offense level for obstructing justice was

appropriate; therefore, he is presumed not to have accepted responsibility. Mendoza does not argue that

exceptional circumstances exist that would justify an

acceptance of responsibility reduction, and there is

nothing in the record that demonstrates exceptional

circumstances. Merely pleading guilty and saving the

government from trial preparation are alone insufficient
10 Nos. 08-3275 & 08-3418

for a defendant to receive an acceptance of responsibility

reduction, “especially in the face of false statements by

the defendant.” United States v. Partee, 301 F.3d 576, 581

(7th Cir. 2002). Accordingly, the district court’s determination that Mendoza was not eligible for a reduction

for acceptance of responsibility was not clearly erroneous.

III.

Based on the foregoing, we conclude that the district

court did not commit clear error by determining that Villa

was a manager or supervisor in the offense and that

he was not eligible for a safety-valve adjustment. For

Mendoza, the district court did not clearly err in finding

he obstructed justice and was not eligible for an

acceptance of responsibility reduction. Accordingly, we

AFFIRM the defendants’ sentences.

 

10-14-09