United States v. Lopez, 957 F.3d 302

David López (appellant) was part of an MS-13 Chelsea clique; promoted from paros/chequeo to de facto street leader after the clique’s First Word (Leoner) was incarcerated.
López participated in an April 2014 assault (shot victim Perdomo) and in a 2015 plot to murder a suspected informant (CW-2); both acts were listed as predicate racketeering acts in a RICO conspiracy indictment under 18 U.S.C. § 1962(d).
López pleaded guilty to the RICO conspiracy count; the PSI recommended a three-level USSG §3B1.1(b) role-in-the-offense enhancement (manager/supervisor) and a resulting Guidelines range.
The probation officer applied Application Note 1 to §2E1.1 by evaluating the predicate acts separately; the government and district court treated López’s role in the enterprise as a whole as the proper basis for the enhancement.
The district court found, based on unchallenged PSI facts, that López was a de facto manager/supervisor of the clique and imposed the statutory maximum 240-month sentence; López appealed.

Issue	Plaintiff's Argument (United States)	Defendant's Argument (López)	Held
Whether a §3B1.1 role enhancement for a RICO §1962(d) conviction is assessed by the defendant’s role in the enterprise as a whole or by his role in discrete predicate acts	Enhancement should be based on role in the enterprise as a whole	Application Note 1 requires treating each underlying offense separately; enhancement should be based on role in the particular predicate acts	Held: enhancement depends on role in the enterprise as a whole (adopting Damico approach and circuit consensus)
Whether the district court’s finding that López was a manager/supervisor had record support	Unchallenged PSI facts support a managerial finding	López contended the court lacked factual support (and argued insufficiency on appeal)	Held: López waived the argument by not raising it in opening brief; reviewed for plain error and found no plain error—unchallenged PSI paragraph supports managerial finding

United States v. Damico, 99 F.3d 1431 (7th Cir. 1996) (holds §2E1.1 predicate-by-predicate approach applies only to base offense level, not Chapter Three adjustments)
United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009) (endorses enterprise-wide role assessment for §3B1.1 in RICO conspiracies)
United States v. Yeager, 210 F.3d 1315 (11th Cir. 2000) (aligns with Damico on Chapter Three adjustments for RICO)
United States v. Coon, 187 F.3d 888 (8th Cir. 1999) (same rule favoring enterprise-based assessment)
United States v. Savoie, 985 F.2d 612 (1st Cir. 1993) (defendant need not be top leader to qualify as manager/supervisor under §3B1.1)
United States v. Carbajal-Váldez, 874 F.3d 778 (1st Cir. 2017) (unchallenged portions of a PSI are ordinarily reliable for sentencing purposes)