UNITED STATES of America, Plaintiff-Appellee, v. Ernest Joe MARQUEZ, Defendant-Appellant.
No. 14-2193
United States Court of Appeals, Tenth Circuit.
Filed August 12, 2016
833 F.3d 1217
To be sure, my colleagues invoke the statute‘s purposes—employee “health” and “safety“—and suggest the result they reach is consistent with them. After all, they note, the employee here who chose to defy his employer‘s instructions and drive his truck as he thought best didn‘t do so to write a novel or with some other esoteric end in mind, but because he bore safety concerns. Just the sort of employee safety concerns, my colleagues indicate, Congress intended to protect. Maj. Op. at 1211.
Even supposing all this is true, though, when the statute is plain it simply isn‘t our business to appeal to legislative intentions. Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 89 L.Ed. 921 (1945) (“The plain words and meaning of a statute cannot be overcome by legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction.“). And it is a well-documented mistake, too, to assume that a statute pursues its putative (or even announced) purposes to their absolute and seemingly logical ends. See, e.g., Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1158 (10th Cir. 2010) (en banc); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 460-62, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Especially to ends as ephemeral and generic as “health and safety.” After all, what under the sun, at least at some level of generality, doesn‘t relate to “health and safety“? The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. Maybe Congress found it easier to agree that an employee has a right to sit still in response to his employer‘s order to operate an unsafe vehicle rather than try to agree on a code detailing when and how an employee can operate a vehicle in a way he thinks safe and appropriate but his employer does not. Maybe Congress would not have been able to agree to the latter sort of code at all. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn‘t think about the problem at all. Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn‘t.
I respectfully dissent.
Richard C. Williams, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with him on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee.
Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Ernest Marquez challenges the two-level sentence enhancement imposed under
I. BACKGROUND
A jury convicted Marquez of three drug charges, including, as relevant to this appeal, possession with intent to distribute fifty grams or more of methamphetamine (“meth“) in violation of
Specifically, Hernandez testified that Marquez asked her to go to Arizona with Galvan and “pick something up” for him. Supp. R. vol. VI at 106. Hernandez agreed that she “should have known” that Marquez was referring to drugs. Id. After all, Marquez had previously asked her to take a trip to Arizona with Galvan, during which trip the two women knowingly obtained cocaine in Arizona and transported it to Michigan.
In addition, Hernandez and Scott Wetherholt—a drug dealer who often bought meth from Marquez—testified about a series of phone calls and text messages made by Marquez regarding the trip. Marquez discussed with Wetherholt his plans to buy one pound of meth from Arizona for $3000. The morning of Hernandez‘s trip, Marquez sent a series of text messages to Wetherholt attempting to raise funds for the purchase. Around noon that day, Marquez called the supplier in Arizona from whom he had arranged to purchase the meth. That same supplier had provided Hernan
That afternoon, Marquez and Hernandez discussed her upcoming trip to Tucson. Shortly thereafter, Hernandez called Marquez to tell him that she was leaving to pick up Galvan in her car. That evening, Marquez told Hernandez that he was “getting the rest of the money together” so that she and Galvan could leave for Tucson. Id. at 71.
Later that night, Galvan called Marquez to tell him that on the way to Arizona she and Hernandez had been stopped at a Border Patrol checkpoint. Marquez asked if Hernandez‘s car had been searched. Although it had been searched, the Border Patrol agents had allowed the women to keep the $2300 they were transporting. Marquez told the women that they should take a different route on their return trip to Las Cruces, presumably to avoid further Border Patrol checkpoints.
In Arizona, Hernandez and Galvan met with the supplier, who gave them a container holding a one-pound brick of meth. Hernandez and Galvan drove the meth back to Las Cruces, dropped it off at Hernandez‘s apartment, and then drove to meet Marquez at his home. On their way, they stopped at a fast-food restaurant because Marquez had told them to buy him something to eat. At the meeting, Marquez and the two women discussed what had happened during the trip. After the meeting, Galvan returned to Hernandez‘s apartment and retrieved the brick of meth to deliver to Marquez at his home.
At sentencing, the government requested a two-level enhancement pursuant to
I‘ve—as I‘ve indicated, I‘ve read all the materials and [defense counsel], on the legal issue, I think that there is significant evidence for me to find that Mr. Marquez was, in fact, a leader/organizer, at the two-level—at the two-level level. So I think that probation has gotten that right.
Supp. R. vol. VIII at 15-16. Marquez‘s counsel did not object to the procedural adequacy of that explanation at the time. The district court then proceeded to impose a below-Guidelines sentence of 130 months. Before adjourning the hearing, the district court inquired whether either counsel had “[a]nything else this morning?” to discuss. Id. at 25. Marquez‘s counsel again failed to raise a procedural objection to the district court‘s explanation concerning the
II. DISCUSSION
On appeal, Marquez challenges the procedural reasonableness of his
A. Procedural challenge
Because Marquez‘s counsel did not raise a procedural objection at the sentencing hearing, his procedural challenge is reviewed for plain error.1 See United States v. Uscanga-Mora, 562
As to the first two prongs, it is well-settled that a district court “‘must make specific findings and advance a factual basis to support an enhancement under
In this case, the district court put forth no factual basis or reasoning for enhancing Marquez‘s sentence pursuant to
As to the third prong, “[t]o show that an error affected his substantial rights, Mr. [Marquez] must establish a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Uscanga-Mora, 562 F.3d at 1295 (internal quotation marks omitted). In the context of sentencing enhancements, if “[t]he defendant ... received a sentence merited by the evidence ... we cannot say ... that, but for the claimed error, the defendant‘s sentence would have been any different.” Id. (affirming a
A defendant such as Marquez qualifies for a two-level enhancement un
The evidence and testimony at trial showed that Marquez orchestrated the sale and transfer of one pound of meth from Arizona to New Mexico: He arranged the sale with his supplier in Arizona; he collected the money for the sale; he recruited Hernandez to drive her car to Arizona to pick up the meth; he assured his supplier that he was “going to get the girls ready” for the trip, and Hernandez explained that, by “the girls” he meant her and Galvan; he maintained phone contact with Hernandez and Galvan during their trip, including advising them how to avoid further Border Patrol searches; he debriefed Hernandez and Galvan at his home immediately after they returned from their trip; and he later had Galvan deliver the meth to him at his home. Supp. R. vol. VI at 75.
Although the district court did not make factual findings at the sentencing hearing, it did appropriately focus on the facts pertaining to the two woman couriers as the basis for the
Accordingly, we conclude that Marquez‘s
Marquez‘s arguments to the contrary are unavailing. Marquez contends he did not exercise control over Hernandez and Galvan because Hernandez testified that he was not “in charge of” her, and that she and Galvan did not follow his instructions to take a different route on the return trip. But even assuming, arguendo, that such testimony would preclude a finding that Marquez exercised some control over the two women couriers, it would not preclude a
Marquez also contends that the meth purchase cannot form the basis for a
Because Marquez “received a sentence merited by the evidence,” we cannot say—as we would have to in order to reverse his sentence for plain error—that his substantial rights were violated. Uscanga-Mora, 562 F.3d at 1295. Therefore, our inquiry into Marquez‘s procedural challenge ends here, and we need not reach the fourth prong of plain error review.
B. Sufficiency of the evidence challenge
We next turn to Marquez‘s sufficiency of the evidence challenge. The question of whether a defendant is a leader or organizer is a mixed question of law and fact that is subject to the clearly erroneous standard of review. United States v. Pena-Hermosillo, 522 F.3d 1108, 1112 (10th Cir. 2008). “If the district court‘s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Uscanga-Mora, 562 F.3d at 1296 (quotation omitted).
For the reasons we have already detailed above, see supra § II.A, we cannot say that the district court‘s determination that Marquez was an “organizer, leader, manager, or supervisor” was based on insufficient evidence. See United States v. Beltran, 571 F.3d 1013, 1020 (10th Cir. 2009) (“[I]n reviewing the court‘s decision to apply an enhancement, we view the evidence and inferences therefrom in the light most favorable to the district court‘s determination.“) (quotation omitted). Because the evidence supports the district court‘s determination, Marquez‘s challenge must fail. See Uscanga-Mora, 562 F.3d at 1296-97.
III. CONCLUSION
For the foregoing reasons, we affirm the district court‘s imposition of the two-level