Hector Martinez appeals his 78-month sentence following his conviction for conspiring to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana in violation of 18 U.S.C. §§ 846 and 841(b)(1)(B). On the slender record presented, the district court clearly erred in finding that Martinez was an organizer or leader under U.S.S.G. § 3Bl.l(a). Accordingly, we vacate the sentence and remand for further proceedings consistent with this opinion.
I.
In 2003, a multi-agency task force began investigating the involvement of Martinez and others in an organization shipping marijuana between Texas and central Florida. Between Fall 2003 and Spring 2004, agents seized packages of marijuana mailed by Martinez and his co-conspirators. In 2007, Martinez was charged in a one-count indictment handed up by a grand jury sitting in the United States District Court for the Middle District of Florida with conspiracy to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana.
During the course of and in furtherance of this conspiracy, the Defendant orchestrated the weekly shipment of mail parcels containing multi-pound quantities of marijuana from Texas to various locations in the middle district of Florida. To facilitate this conspiracy as [well as] to avoid detection, the Defendаnt and his co-conspirators used fictitious return addresses on these parcels, had them shipped to residences belonging to other co-conspirators, utilized others to mail and/or receive the packages and employed Western Union wire transfers to send their drug proceeds to each other.
(Hr’g Trans. Plea Proceedings 64, Mar. 11, 2008).
In relevant part, Martinez’s Presentence Investigation Report (“PSI”) stated in Paragraph 9 that he
orchestrated weekly shipments of mail parcels containing multi-pound quantities of marijuana from Texas to various locations in the Middle District of Florida. Martinez and several co-conspirators used fictitious return addresses on these parcels and had them shipped to different residences belonging to other co-conspirators. Martinez also utilized other individuals — including many of his own family members — to mail or receive the packages containing the marijuana. The individuals whom Martinez enlisted to assist him in furtherance of the offense include, but are not limited to, his brother, Tomas Martinez, his sisters Amalia Martinez and Antonia Aguilar, his ex-girlfriend, Sally Cadona, and his daughter, Rosalinda Martinez.
(Martinez PSI ¶ 9). The PSI also said that Martinez participated in the wire transfer of $343,729 in drug proceeds during the duration of the conspiracy. (Martinez PSI ¶ 11). Paragraph 20 of the PSI set forth that Martinez was eligible for a role enhancement as an organizer or leader under U.S.S.G. § 3Bl.l(а) because he “recruited and directed numerous participants within the conspiracy, which involved more than five participants.” (Martinez PSI ¶ 20).
On May 23, 2008, Martinez submitted timely written objections to the PSI. He objected to each element of the PSI that stated or implied he was eligible for the Section 3131.1(a) enhancement for a leadership role. Particularly, Martinez objected, to the facts as set out in Paragraph 9 of the PSI:
We disagree that thеre is evidence showing that Martinez “orchestrated” the weekly shipment of marijuana, and disagree that family members became “co-conspirators” merely because they were implicated in having participated in wire transfers. We particularly object that Martinez’s daughter, Rosalinda Martinez, assisted him further in the offense; the fact that family members wired money to Martinez, or received money from him, is not necessarily proof of conspiracy, assistance in, or knowledge of the offense, particularly where government records show that Rosalinda wired money with a grand total of approximately $400.00, on only 3 occasions over the period Martinez was watched. Position of Defendant Hector Martinez with Respect to Sentencing Factors As Laid Out in May 9, 2008 Presentence Report By Carlos Colon, United States Probation Office, ¶ 2.
Martinez also objected to the PSI’s characterization of the conspiracy as the “Hector Martinez organization” or as “Martinez’s network,” and to the PSI’s designation of his co-conspirators as “members” of his organization. (Position of Defendant Hec
At his June 26, 2008 sentencing hearing, Martinez renewed his objection to the government’s characterization of his involvement as an organizer or a leader. Martinez argued that “the mere fact that [Martinez] was either sending these shipments ... and receiving the money in return ... does not in itself place him in a position where he was a supervisory manаgement leader of this organization.” (Hr’g Trans. Sentencing 75, June 26, 2008). Notably, the government introduced no evidence at the sentencing hearing except for referencing the PSI itself.
The district court judge summarily denied the objection to the facts in Paragraph 9, and the application of the Section 3Bl.l(a) enhancement, stating that “if you read Paragraph 9 of the presentence report, he’s admitted these facts, and Paragraph 9 shows him to be the leader. He’s the one that enlisted others to help him in furtherance of the offense.” (Id. at 79). The district court then adopted the PSI’s factual findings, calling them “undisputed factual statements.” (Id.) He applied the Guidelines as set forth in the PSI, which yielded a sentencing range of 70 to 87 months, and sentenced Martinez to 78 months’ imprisonment. In imposing the sentence, the district court observed that it had considered the 18 U.S.C. § 3553 sentencing factors and found that Martinez’s sentencе was “sufficient but not greater than necessary to comply with the statutory purposes of sentencing.” (Hr’g Trans. Sentencing 83, June 26, 2008). The district court also imposed a five year term of supervised release and entered a money forfeiture judgment in the amount of $110,000.
This timely appeal followed.
II.
We review a district court’s determination that a defendant is subject to a Section 3B1.1 role enhancement as an organizer or leader for clear error.
United States v. Ramirez,
Although the Sentencing Guidelines are no longer mandatory,
United States v. Booker,
Martinez challengеs the district court’s imposition of a leadership role enhancement to his offense level calculation under the Sentencing Guidelines. Pursuant to Section 3Bl.l(a), a district court must increase a defendant’s offense level by four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(a). The commentary of that section explains that where, as hеre, the criminal organization is relatively small, “the distinction be
Comment four of U.S.S.G. § 3B1.1, in turn, sets forth seven explanatory factors that illuminate whether a defendant is an “organizer” or a “leader” and we consider thеse factors in determining whether to apply the adjustment for aggravating role in the offense:
(1) exercise of decision making authority, (2) the nature of participation in the commission of the offense, (3) the recruitment of accomplices, (4) the claimed right to a larger share of the fruits of the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and scope of the illegal activity, and (7) the degree of control and authority exercised over others.
United States v. Gupta,
On this bare record, the district court clearly erred in imposing a role enhancement pursuant to Section 3Bl.l(a) on Martinez’s sentence, because the government failed to prove the disputed facts in the PSI by a preponderance of the evidence, and, without those facts, presented insufficient evidence for the district court to find that Martinez was an organizer or
The district court determined that the information contained in Paragraph 9 of Martinez’s PSI — which said that Martinez “orchestrated” weekly shipments of marijuana from Texas to Florida, utilized others to mail or receive those shipments, and enlisted others to join in the scheme— established that he was a leader. However, Martinez clearly and unambiguously objected to the PSI’s characterization that he “orchestrated” the weekly shipments of marijuana, that he used his family members to further the оffense, that it was his organization or network, or that he played any kind of leadership, managerial or supervisory role.
It is by now abundantly clear that once a defendant objects to a fact contained in the PSI, the government bears the burden of proving that disputed fact by a preponderance of the evidence.
United States v. Rodriguez,
Once the Government has presented proper evidence, the district court must either: (1) make an explicit factual finding as to the allegation; or (2) determine that no such finding is necessary because the matter controverted will not be taken into account in sentencing the defendant.
The government presented no evidence at the sentencing hearing to establish any of the essential factual statements in the PSI disputed by Martinez. However, because Martinez admitted during his guilty plea that he did “orchestrate” drug shipments, his objection to that fact is without merit and the government need not have introduced any evidence to demonstrate it. A fact admitted to during a guilty plea cannot later be contested when it appears in the defendant’s PSI.
See United States v. Bennett,
Accordingly, the only undisputed facts upon which the district court could have properly based its role enhancement deter-
Those facts are not enough. They do not establish, standing alone or in concert, any of the seven factors set forth in Comment Four to Section 3B1.1: 1) decision making authority, 2) nature of particiрation, 3) recruitment, 4) larger share in profits, 5) degree of participation in planning and organizing, 6) nature and scope of the offense, and 7) the degree of control and authority exercised. U.S.S.G. § 3B1.1 cmt. n.4.
As for the first factor, there is no undisputed evidence that Martinez exercised decision-making authority over anyone in this conspiracy. The term “orchestrate” is not synonymous with control, supervise, or manage. Indeed, Webster’s Third New International Dictionary 1587 (2002) defines “orchestrate” as “to arrange, develop, organize, or combine so as to achieve a desired or maximum effect.” Thus, to “orchestrate” may mean no more than to organize or coordinate a particular transaction, as opposed to creating the transaction, managing the transaction, or otherwise exercising authority over the transaction. While a person who orchestrates а transaction may also be one who authorizes and supervises the transaction, the orchestrator just as easily could be a subordinate charged with dealing with the relatively minor details of completing that transaction.
See United States v. Quigley,
The same analysis applies to the second factor: nature of the participation. Martinez’s admissions in the plea colloquy do not illuminate his “relative responsibility,” U.S.S.G. § 3B1.1 cmt. (bckg’d), vis á vis his unindicted co-conspirators. The facts to which Martinez acceded merеly reveal that he acted in concert with his co-conspirators in shipping, transferring money, and concealing their conspiracy.
The third, fourth and fifth factors are similarly unavailing. There is no undisputed evidence in the PSI that Martinez recruited any of his co-conspirators. There is no evidence that Martinez claimed a larger share of the fruits of the crime; indeed, in the Offender Characteristics section, the PSI says that Martinez is destitute and lives in a small mobile home “in an impoverished rural area.” (PSI ¶ 47). If he claimed a greater share of the profits, it was not apparent from the unchallenged sections of the PSI or from the plea colloquy. Nor is it clear whether Martinez coordinated drug shipments and received drug proceeds via wire transfers indepen
Finally, as for the sixth and seventh factors, the record contains no undisputed evidence demonstrating that Martinez exercised any control or authority over others; Martinez repeatedly objected to any referеnces to the conspiracy being his “network” or “organization,” or that any of his co-conspirators were “members” of “his organization.” It is not clear that this is one of the “larger enterprises that tend to have clearly delineated divisions of responsibility” that U.S.S.G. § 3B1.1 contemplated. U.S.S.G. § 3B1.1 cmt. bckg’d. And the government introduced nothing at the sentencing hearing in support of the PSI’s claim that Martinez exercised control and authority over others. The only undisputed evidence presented in this record is that Martinez, along with his co-conspirators, “utilized other individuals” to mail and receive drug shipments. This fact, phrased by the prosecutor at the plea allocution as joint action, presents no indi-cia of control or authority exercised over the co-conspirators charged with mailing and receiving drug shipments.
The majority of the admissions made by Martinez at his plea hearing equally involved his co-cоnspirators: “To facilitate this conspiracy to avoid detection, the Defendant
and his co-conspirators
used fictitious return addresses on these parcels, had them shipped to residences belonging to other co-conspirators, utilized others to mail ... and employed Western Union wire transfers to send their drug proceeds to each other.” (Hr’g Trans. Plea Proceedings 64, Mar. 11, 2008) (emphasis added). There is no suggestion (other than the single use of the verb “orchestratе”) that Martinez had any position of leadership or authority over his co-conspirators or that it was his idea to undertake any of the criminal activities; the plea allocution yields no clear inference that he had subordinates.
See Alred,
On this bare record, the district court could not reject the objection to the sentence adjustment for an aggravating role under U.S.S.G. § 3Bl.l(a) without requiring the government to present sufficient evidence to establish by a preponderancе of the evidence that Martinez was an organizer or leader of the charged criminal conduct. Because the district court clearly erred in finding that Martinez was a leader or organizer of the conspiracy based on the plainly disputed facts found in Paragraph 9 of the PSI, we are required to vacate the sentence and remand for further proceedings consistent with this opinion.
See United States v. Hall,
At re-sentencing, the government may present evidence in support of the claimed leadership enhancement to which Martinez
VACATED AND REMANDED.
Notes
. The commentary and appliсation notes of the Sentencing Guidelines are authoritative, unless they are plainly erroneous, inconsistent with the regulation they interpret, or contrary to the Constitution or federal law.
Stinson v. United States,
. Because we conclude that the record did not provide enough evidence for the district court to determine that Martinez was a leader, we need not and do not address his additional argument that the district court plainly erred in finding that the criminal activity involved five or more participants or was otherwise extensive as is also required by Section 3B 1.1(a).
See Alred,