United States Court of Appeals

For the Eighth Circuit

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No. 15-1329

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Richard Gonzalez Alcalde

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: March 14, 2016

Filed: April 12, 2016

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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

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MURPHY, Circuit Judge.

Richard Gonzalez Alcalde pled guilty to conspiracy to distribute

methamphetamine and the district court1

 sentenced him to 188 months imprisonment. 

Alcalde appeals his sentence, arguing that 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, Alcalde participated in a conspiracy to

distribute methamphetamine with four other individuals. He was indicted and pled

guilty to conspiracy to distribute methamphetamine 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 recommended 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 coconspirator 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 another'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 methamphetamine generally sold for between

$1,500 and $1,800. 

During the sentencing hearing Alcalde argued 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

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provided her with bank account information so that she and another coconspirator

could deposit the drug proceeds. She stated that 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 testified that Alcalde would

direct her to take photographs of drug packages she received and send the photographs

to him via text message. 

Namanny testified during the sentencing hearing about statements Alcalde made

during his proffer interviews. According to Namanny, Alcalde had admitted to being

involved with shipping at least four packages 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 "considering 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 sufficient evidence to support the finding that 4.5

kilograms of methamphetamine were attributable to him. The court then calculated

the guideline range at 235 to 240 months and sentenced Alcalde to 188 months

imprisonment. Alcalde appeals his sentence, arguing that the court misapplied the

aggravating role adjustment and miscalculated the drug quantity attributable to him.

II. 

We review the district court's factual findings and its determination of a

defendant's role in the offense for clear 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

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three levels if he 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 the guidelines, we construe the terms "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 "exercise of decision making authority, the nature of participation

in the commission of the offense, the recruitment of accomplices, . . . 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 role 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 five participants and Alcalde directed the

actions of two coconspirators by instructing 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 attributed to him, but he argues that the court

erred by attributing the additional 28 grams 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 the 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

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quantity attributed to Alcalde. First, the court could have converted the drug proceeds

that had been found in the coconspirator 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 offense, the court shall approximate the quantity of substance." 

U.S.S.G. § 2D1.1 cmt. n.5. When approximating 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 Cir. 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 long 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 could 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 had found in the coconspirator houses thus

could have accounted for the 28 grams which 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 intercepted by the government. During

his proffer interview, Alcalde admitted to managing the shipment of four packages of

actual methamphetamine. Two of those packages were intercepted by law

enforcement and contained 1,968 grams and 2,363 grams of high purity

methamphetamine. We have explained that "[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

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district court may therefore have estimated that 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 his proffer statements to support its drug

quantity calculation. We review 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. Alcalde triggered this exception because he denied selling a

higher drug quantity despite having previously admitted to selling additional packages

of drugs in his proffer. See id. 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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