UNITED STATES of America, Plaintiff-Appellee, v. Eddie CASTILLA-LUGO, Defendant-Appellant.
No. 11-1665.
United States Court of Appeals, Sixth Circuit.
Argued: July 26, 2012. Decided and Filed: Nov. 1, 2012.
454-466
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The district court‘s judgment is reversed, and the case remanded for proceedings consistent with this opinion.
OPINION
MICHAEL H. WATSON, District Judge.
Mr. Castilla-Lugo appeals a sixty-three month sentence imposed for conspiracy to produce and traffic fraudulent identification documents and for possession of document-making implements. He argues that the district court improperly applied the three-level managerial/supervisory role enhancement pursuant to
I. FACTS
Mr. Castilla-Lugo lived in Mexico City with his wife and two children until 2001. Unable to support his family financially, in 2001 he moved to New York to look for employment. He lived in Queens until he was deported in November 2004.
Upon returning to Mexico City, Mr. Castilla-Lugo was again unable to support his family. In 2009, he returned to the United States and worked in an auto body shop in Wichita, Kansas until he was deported a second time later that year.
Undeterred, Mr. Castilla-Lugo entered the United States a third time. He again worked in Kansas until he was laid off, at which point he contacted Mr. Reyes-Gonzalez and made his way to Grand Rapids, Michigan, where Mr. Reyes-Gonzalez lived.
Mr. Reyes-Gonzalez made and sold false identification documents to illegal immigrants and had been doing so with Mr. Lopez-Sosa for more than a year and a half prior to Mr. Castilla-Lugo‘s arrival. Shortly after his arrival, Mr. Castilla-Lugo joined the operation and also began making and selling false documents. Mr. Reyes-Gonzalez rented an apartment in Grand Rapids; Mr. Castilla-Lugo lived in one of the bedrooms, and the documents were created in another. Mr. Castilla-Lugo then helped Mr. Reyes-Gonzalez move the business to another apartment, again with Mr. Castilla-Lugo living in one room and the documents being created in another. The “facility” (the room where the documents were created) was kept locked, and when Mr. Reyes-Gonzalez was home, no one had access to the room without Mr. Reyes-Gonzalez‘s permission.
At some point, three additional men arrived from Kansas and joined the conspiracy. These men, Mr. Armendariz-Becerra, Mr. Merlos-Gonzalez, and Mr. Alvarado-Ponce, knew Mr. Castilla-Lugo in Kansas. Mr. Reyes-Gonzalez let them live in the apartment/production facility, gave them false documents for themselves, and provided them business cards and cell phones. Mr. Reyes-Gonzalez kept track of the number of each associate‘s sales in a notebook. He produced the fraudulent documents and sold them for $50 each to the other defendants, who in turn fixed their own price when selling to customers.
In 2009, Immigration and Customs Enforcement (“ICE“) 1 began investigating a document production ring involving Mr. Reyes-Gonzalez. Through the use of surveillance and controlled buys, ICE obtained information about the organization. ICE agents also observed Mr. Reyes-Gonzalez and Mr. Lopez-Sosa selling documents. As Mr. Castilla-Lugo was not involved in the production ring at that time, ICE agents did not witness him making or selling documents during the course of their surveillance.2
II. PROCEDURAL HISTORY
The Government filed a Superseding Indictment against Mr. Castilla-Lugo and others on July 29, 2010, charging Mr. Castilla-Lugo with: one count of conspiring to produce and traffic in fraudulent identification documents, in violation of
Mr. Castilla-Lugo pleaded guilty to the illegal reentry charge. Two of the co-conspirators, Mr. Reyes-Gonzalez and Mr. Lopez-Sosa, pleaded guilty to Count One. Mr. Castilla-Lugo and the other two co-conspirators were tried before a jury and convicted on Counts One and Two. Both Mr. Reyes-Gonzalez and Mr. Lopez-Sosa testified at the trial for the Government.
At sentencing, Mr. Castilla-Lugo objected to certain enhancements recommended in the Pre-Sentence Investigation Report, but the district court overruled those objections and applied a three-level enhancement for playing a managerial or supervisory role and a nine-level enhancement because the offense involved 100 or more documents. The district court also denied Mr. Castilla-Lugo‘s request for a downward variance and sentenced Mr. Castilla-Lugo to sixty-three months in prison, the top end of the sentencing guideline range. He now appeals.
III. STANDARD OF REVIEW
“Sentences imposed post-Booker are reviewed for procedural and substantive reasonableness.” United States v. Haj-Hamed, 549 F.3d 1020, 1023 (6th Cir. 2008) (quoting United States v. Conatser, 514 F.3d 508, 519 (6th Cir.2008) (citing United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005))). “Regardless of whether the sentence imposed is inside or outside the Guidelines range, [this] court must review the sentence under an abuse-of-discretion standard.” United States v. Vicol, 514 F.3d 559, 561 (6th Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We must first ensure the district court did not commit a “significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
A. Procedural Reasonableness
1. Managerial Role Enhancement
Mr. Castilla-Lugo first argues the district court improperly applied a three-level managerial role enhancement under
The standard of review of a sentencing enhancement pursuant to
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Although the district court may have included factual and legal errors in its analysis, it did not commit reversible error in its ultimate decision to apply the three-level managerial enhancement to Mr. Castilla-Lugo. The district court made factual findings that Mr. Castilla-Lugo recruited three other individuals—Mr. Armendariz-Becerra, Mr. Merlos-Gonzalez, and Mr. Alvarado-Ponce—from Kansas to participate in the conspiracy. Additionally, it found Mr. Castilla-Lugo sent those men into the street to solicit customers, created false documents, moved the operation to a new apartment, was the primary resident of the apartment, and had access to the document-making implements. Most of these factual findings do not legally support a
As noted above, the enhancement requires management or supervision of a participant, not the assets of the criminal enterprise. Gort-DiDonato, 109 F.3d at 321. Thus, while creation of documents, moving the operation between apartments, living in the apartment, and having access or control over the implementations could warrant an upward departure, they do not warrant an enhancement. Id.
Moreover, the district court clearly erred in finding that Mr. Castilla-Lugo sent Mr. Armendariz-Becerra and Mr. Merlos-Gonzalez into the street to solicit customers. Facts relied upon in sentencing must be found by a preponderance of the evidence. See Gates, 461 F.3d at 708. A review of the record shows there is no evidence to support this finding.6 Thus, the district court committed clear error.
Nonetheless, other evidence supports the district court‘s finding that Mr. Castilla-Lugo recruited the three individuals from Kansas and brought them to the facility, which is legally sufficient to support the
It is evident that recruiting co-conspirators and planning and organizing their entrance into the conspiracy suffices to warrant the enhancement, even though the Government did not prove each of the other factors, such as receiving a larger share of the profits or exercising decisionmaking authority. See Gates, 461 F.3d at 709. In fact, Mr. Castilla-Lugo‘s actions are similar to other cases for which
Thus, the district court did not err under either standard of review when applying the three-level enhancement for a managerial or supervisory role.
Mr. Castilla-Lugo also appeals the district court‘s application of the nine-level enhancement under
As discussed above, we review the district court‘s factual findings for clear error and its application of the Guidelines provision to those facts de novo. Vasquez, 560 F.3d at 473 (citing Moncivais, 492 F.3d at 660). Although this court has not yet reviewed a district court‘s determination of the number of documents involved under
First, Mr. Castilla-Lugo argues that under
Application note 2 states, “[w]here it is established that multiple documents are part of a set of documents intended for use by a single person, treat the set as one document.”
Mr. Castilla-Lugo argues that evidence was insufficient because one client could have bought multiple state identification cards and foreign identification cards, which together should count as only one document under the Sentencing Guidelines. He offers no case law to support such a reading of application note 2, and decisions in other Circuits suggest such a reading is incorrect. For example, United States v. Badmus involved a defendant possessing multiple false identity documents. 325 F.3d 133, 136 (2nd Cir.2003). Some of the documents bore identical photographs with different names and biographical information. Id. The documents were to be submitted into various country‘s visa lottery programs, despite the fact that multiple entries were against the law. Id. Both the trial court and the Second Circuit rejected the defendant‘s argument that since the multiple applications were meant for use by three or four individuals, the applications constituted only three or four documents. Id. at 138, 140.
Likewise, in United States v. Castellanos, the Seventh Circuit considered whether twenty four sheets of blank counterfeit resident alien cards (each with eight impressions of the card) and two sheets of counterfeit Social Security cards (each with twelve impressions of the card) constituted a total of 216 documents, as advanced by the Government, or twenty-six documents, as advanced by the defendant. 165 F.3d 1129, 1130, 1132 (7th Cir.1999). The Seventh Circuit noted that while a person may use both one resident alien card and one Social Security card, “[o]ne person could not use, for identification purposes, 12 Social Security cards or 8 resident alien cards found on one sheet.” Id. at 1133. Even assuming one person could use both a resident alien card and a Social
The Ninth Circuit has also held that a sale of more than 1000 counterfeit Social Security cards and more than 1000 fraudulent Alien Registration Receipt cards constituted more than 1000 sets, despite being sold to a single person. United States v. Perez-Gutierrez, 234 F.3d 1279, No. 99-10208, 2000 WL 1171129, at *1 (9th Cir. Aug. 17, 2000).
The reasoning of the Second, Seventh, and Ninth Circuits is sound. Any documents that could be used at the same time for a single purpose should be considered one document. While one person could use a combination of multiple counterfeit cards together for a single purpose (for example one Social Security card, one green card, and one driver‘s license), a person would not likely use for a single purpose multiple state identification or foreign identification cards. While it may be true, as Mr. Castilla-Lugo contends, that an individual would want both a state driver‘s license and a foreign identification card, or a series of state identification cards, to show a timeline of residency, it is speculative. Moreover, there were 250 foreign documents alone. Thus, even if a person had one state and one foreign document in a “set,” there would still be over 100 documents. The district court did not err in finding that the Government proved by a preponderance of the evidence that at least 100 documents existed.
The next issue is whether all 100 documents can be attributed to Mr. Castilla-Lugo given that he was only involved in the conspiracy for six weeks before he was arrested. Mr. Castilla-Lugo argues that the enhancement only applies if 100 or more documents were produced in the offense, and he should not be held responsible for documents produced before he joined the conspiracy. He argues that to hold him responsible for documents created before he joined the conspiracy, the district court had to comply with United States v. Campbell, 279 F.3d 392, 399-400 (6th Cir.2002), and make particularized findings that the creation of 100 or more documents was within the scope of his agreement to participate in the conspiracy and was foreseeable. The Government argues that Mr. Castilla-Lugo was not held accountable merely because his co-conspirators had previously produced 100 or more documents before he joined the conspiracy but rather because 100 or more documents were “involved” in Mr. Castilla-Lugo‘s commission of the offense.
The Campbell requirements would be appropriate in an instance where the Government sought to impute, for example, the documents sold by Mr. Castilla-Lugo‘s co-defendants to him because those sales were reasonably foreseeable and part of the conspiracy to which Mr. Castilla-Lugo agreed to participate, but they are not applicable where Mr. Castilla-Lugo‘s own offense involved the use of such documents.
In conclusion, the district court did not err in finding that at least 100 documents were involved in the offense within the meaning of the guidelines and properly applied the enhancement.
B. Substantive Reasonableness
Last, Mr. Castilla-Lugo argues his within-guidelines sentence is substantively unreasonable. He argues first that it is not proportionate to the severity of the offense or his specific characteristics in that it overstates his role in the conspiracy. He then argues that a lesser sentence would have an equal deterrent effect.
“A sentence is substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the sentence on impermissible factors, failed to consider pertinent
Mr. Castilla-Lugo‘s role, while perhaps not as extensive as Mr. Reyes-Gonzalez‘s, was not as limited as he argues. The evidence showed he recruited three members into the conspiracy, which doubled the conspiracy‘s size. He not only sold fraudulent documents himself but also utilized the vast array of digital templates and produced fraudulent documents. Further, he helped move the entire operation from one apartment to another. He did all this in the approximately six-week span that he was involved in the conspiracy.
Additionally, although Mr. Reyes-Gonzalez was apparently the leader of the operation, “a district court is not required to sentence at the low end of the guidelines range simply because a co-defendant may be more culpable.” United States v. Casey, 480 Fed.Appx. 811, 814, No. 11-6147, 2012 WL 1676686, at *2 (6th Cir. May 15, 2012). Unlike Mr. Castilla-Lugo, Mr. Reyes-Gonzalez accepted responsibility for his actions and pleaded guilty, as did Mr. Lopez-Sosa. Moreover, they both provided assistance in the Government‘s investigation by testifying against Mr. Castilla-Lugo, Mr. Merlos-Gonzalez, and Mr. Armendariz-Becerra. After considering their acceptance of responsibility and assistance, it is not surprising that they received lesser sentences than Mr. Castilla-Lugo despite having arguably greater culpability for the crime. See United States v. Stewart, 628 F.3d 246, 260 (6th Cir.2010) (finding no abuse of discretion where district court sentenced defendant more harshly than co-defendants who pleaded guilty and cooperated with authorities). Similarly, the defendants who were tried with Mr. Castilla-Lugo were incontrovertibly involved for a much shorter period of time, were not involved in the document-production aspect of the operation, and did not recruit other members. Therefore, even though his co-defendants were sentenced more leniently, Mr. Castilla-Lugo‘s sentence did not overstate his role in the offense.
As to offender-specific characteristics, the district court noted that Mr. Castilla-Lugo had twice entered the United States illegally after being deported. Further, the district court found he was at a high risk of re-offending and that there was a great need to protect the public from further crimes. The district judge also viewed Mr. Castilla-Lugo‘s act of moving the operation from one apartment to another as an attempt to evade the law. Therefore, the district court fashioned a sentence proportionate to both the seriousness of the offense and the offender‘s characteristics.
Finally, while Mr. Castilla-Lugo argues that a sentence below the guidelines range would deter this type of conduct among both himself and others similarly situated, “[a] defendant‘s ‘mere allegation that the sentence imposed is greater than necessary to achieve the goals of punishment outlined in
V. CONCLUSION
For the above reasons, the sentence is AFFIRMED.
Clifton E. JACKSON; Christopher M. Scharnitzke, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. SEGWICK CLAIMS MANAGEMENT SERVICES, INC.; Coca-Cola Enterprises, Inc., foreign corporations; Dr. Paul Drouillard, jointly and severally, Defendants-Appellees.
No. 10-1453.
United States Court of Appeals, Sixth Circuit.
Argued: July 19, 2011. Decided and Filed: Nov. 2, 2012. Rehearing En Banc Granted, Opinion Vacated Jan. 18, 2013.