# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 15-1329

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
Richard Gonzalez Alcalde

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines

____________ Submitted: March 14, 2016 Filed: April 12, 2016

____________ Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

____________ MURPHY, Circuit Judge. Richard Gonzalez Alcalde pled guilty to conspiracy to distribute methamphetamine and the district court 1 sentenced him to 188 months imprisonment. Alcalde appeals his sentence, arguing th at the court erroneously applied an

1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.aggravating role adjustment under U.S.S .G. § 3B1.1 and miscalculated the drug quantity attributable to him. We affirm.

I.

Between February and April 2014, Alcaldeparticipated in a conspiracy to distribute methamphetamine with four othe r individuals. He was indicted and pled guilty to conspiracy to distribute methamphe tamine in violation of 21 U.S.C. § 841(a), (b)(1)(A) and 21 U.S.C. § 846. In the plea agreement, the parties stipulated that Alcalde's offense involved at least 1.5 kilograms of actual methamphetamine.

The presentence investigation report r ecommended that Alcalde receive a three level enhancement because of the managerial role he played in the conspiracy. See U.S.S.G. § 3B1.1(b). The probation office also determined that at least 4.5 kilograms of methamphetamine were attributable to Alcalde. This calculation was based on the quantity of drugs the government seized and could trace to Alcalde as well as the drug quantity equivalent of the cash found in coc onspirator houses. The coconspirators had admitted in government interviews that they had collected drug proceeds as part of the underlying conspiracy to distribute methamphetamine. The police had seized $2,380 from one coconspirator's house and $3,592 from a nother's. In the report, the monetary seizures were converted to 37.49 grams and 56.57 grams, respectively, based on information from Drug Enforcement Administration special agent Lonny Namanny that one ounce or about 28 grams of meth amphetamine generally sold for between $1,500 and $1,800.

During the sentencing hearing Alcalde ar gued that a role enhancement should not be applied and that the drug quantity attributed to him in the presentence investigation report was erroneous. One of Alcalde's coconspirators, Gema Consuelo Gonzalez Alcalde, testified that Alcalde had directed her to obtain Des Moines mailing addresses to receive shipments of actual methamphetamine. He had also

-2-provided her with bank account information so that she and another coconspirator could deposit the drug proceeds. She stated th at at least three packages were sent to Iowa from California, and she recalled one instance when Alcalde had instructed her to make a $3,000 deposit into a bank account. Gema also te stified that Alcalde would direct her to take photographs of drug p ackages she received and send the photographs to him via text message.

Namanny testified during the sentencing h earing about statements Alcalde made during his proffer interviews. According to Namanny, Alcalde had admitted to being involved with shipping at least four packag es of drugs from California to Des Moines. Alcalde provided this information to Namanny subject to a cooperation agreement under which the government had agreed not to use any self incriminating statements against him, unless he "admit[ted] conduct in a proffer interview or debriefing and then denie[d] the same or present[ed] evidence to the contrary at any hearing subsequent to the signing of th[e] agreement."

The district court found that "consideri ng the entire record" the facts supported applying the sentencing role enhancement under U.S.S.G. § 3B1.1(b) to Alcalde. It also determined that there was sufficien t evidence to support the finding that 4.5 kilograms of methamphetamine were attribut able to him. The court then calculated the guideline range at 235 to 240 months and sentenced Alcalde to 188 months imprisonment. Alcalde appeals his senten ce, arguing that the court misapplied the aggravating role adjustment and miscalculated the drug quantity attributable to him.

II.

We review the district court's factua l findings and its determination of a defendant's role in the offense for cl ear error. United States v. Callaway , 762 F.3d 754, 759 (8th Cir. 2014); United States v. Gutierrez , 757 F.3d 785, 789 (8th Cir. 2014). Under U.S.S.G. § 3B1.1(b), a defendant 's offense level may be increased by

-3-three levels if he was a "manager or supervis or (but not an organizer or leader) and the criminal activity involved five or more pa rticipants or was otherwise extensive." Under the guidelines, we construe the te rms "manager" and "supervisor" broadly. United States v. Cole , 657 F.3d 685, 687 (8th Cir. 2011).

To determine whether this enhancement applies, the sentencing court considers factors such as the "exercis e of decision making authority, the nature of participation in the commission of the offens e, the recruitment of accomp lices, . . . the nature and scope of the illegal activity, and the degree of control and authority exercised over others." U.S.S.G. § 3B1.1 cmt. n.4. A ro le enhancement under § 3B1.1(b) may apply even if the defendant managed only one participant in a single transaction. United States v. Adejumo , 772 F.3d 513, 537–38 (8th Cir. 2014). Here, the record demonstrates that the conspiracy involved fi ve participants and Alcalde directed the actions of two coconspirators by instru cting them to deposit drug proceeds and by instructing one of them to send photos of drug packages. The district court therefore did not err by applying a role enhancement under § 3B1.1(b).

Alcalde also argues that the district court clearly erred by attributing to him 4.5 kilograms of actual methamphetamine. He does not dispute that 4.472 kilograms of actual methamphetamine were properly attribut ed to him, but he argues that the court erred by attributing the additional 28 gr ams of methamphetamine. Drug quantity determinations are factual findings which we review for clear error. United States v. Colton , 742 F.3d 345, 348 (8th Cir. 2014). A district court's determination will stand "unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of th e entire record, we are left with a firm and definite conviction that a mistake has been made." Id. (internal quotation marks omitted).

Here, although the court did not specify how it completed its calculation, the record supports at least two different methods of calculating the 4.5 kilograms drug

-4-quantity attributed to Alcalde. First, the court could have converted the drug proceeds that had been found in the coconspirato r houses into drug quantities. Under the sentencing guidelines, "[w]here there is no drug seizure or the amount seized does not reflect the scale of the offens e, the court shall approximate the quantity of substance." U.S.S.G. § 2D1.1 cmt. n.5. When approxi mating the total drug quantity, a court may convert drug proceeds into the equivalent drug quantity. See United States v. Carper , 942 F.2d 1298, 1303 (8th Ci r. 1991), cert. denied , 502 U.S. 993 (1991). And for sentencing purposes a court may attribute those proceeds to a defendant who "was not directly involved" in the transaction as l ong as "those dealings were part of the same [underlying] course of conduct or scheme" with which the defendant was involved. Colton , 742 F.3d at 349 (internal quotation marks omitted).

The drug amount seized in this case did not reflect the full scale of the conspiracy because Alcalde admitted to sending more packages than the government had intercepted. The court therefore coul d have properly attributed to Alcalde up to 94.06 grams for the $5,972 of drug proceeds found in the coconspirator houses because Alcalde was part of the underlying conspiracy to sell methamphetamine. See id. The cash that government officials ha d found in the coconspirator houses thus could have accounted for the 28 grams wh ich Alcalde contends were erroneously attributed to him.

The record also supports the court's drug quantity finding because it could have attributed to Alcalde the approximate amount of methamphetamine which was in packages he admitted he sent but had not been intercep ted by the government. During his proffer interview, Alcalde admitted to managing the shipment of four packages of actual methamphetamine. Two of thos e packages were intercepted by law enforcement and contained 1,968 gr ams and 2,363 grams of high purity methamphetamine. We have explained th at "[a] sentencing court may estimate a quantity of unrecovered drugs based on known quantities from other similar transactions." United States v. Granados , 202 F.3d 1025, 1029 (8th Cir. 2000). The

-5-district court may therefore have estimatedthat the other packages Alcalde shipped also contained about 2,000 grams of actual methamphetamine. The estimated quantity of drugs in these other packages thus could have accounted for the additional 28 grams that the district court attributed to Alcalde.

Finally, Alcalde contends that the the government breached his cooperation agreement by offering testimony regarding hi s proffer statements to support its drug quantity calculation. We revi ew this issue de novo. See United States v. Ozmon , 713 F.3d 474, 476 (8th Cir. 2013). The cooperation agreement generally prohibited the government from using Alcalde's self incriminating statements, but permitted the government to use those statements if he denied a fact which he had previously admitted in his proffer. Al calde triggered this exception because he denied selling a higher drug quantity despite having previous ly admitted to selling additional packages of drugs in his proffer. Seeid. The government thus permissibly used Alcalde's proffer statements.

We conclude that the district court properly applied a role enhancement and correctly calculated the drug quantity attributable to Alcalde. His sentence is therefore affirmed.

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