United States of America, Plaintiff-appellee, v. Juan Carlos Alvarado, Defendant-appellant, 959 F.2d 242 (9th Cir. 1992)

Before HUG and PREGERSON, Circuit Judges, and PECKHAM,^**  District Judge.

MEMORANDUM^*** 

Appellant Juan Carlos Alvarado ("Alvarado") entered a guilty plea to conspiracy and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 846 and § 841(a) (1) and subsequently entered into a stipulation of facts with the government as to the nature and extent of his involvement in the offense charged.¹  Alvarado now appeals the district court's finding that he was an "organizer, leader, manager or supervisor" in a criminal activity pursuant to 3B1.1(c) of the United States Sentencing Commission Guidelines (Nov.1990) (hereinafter "Guidelines").²  We review this finding for clear error. United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir. 1990).

Section 3B1.1(c) of the Guidelines provides for a two level upward adjustment if the defendant is found to be "an organizer, leader, manager, or supervisor in any criminal activity" which involves less than five participants and is not otherwise extensive. In interpreting this provision, the Ninth Circuit has enunciated five factors relevant to applying Section 3B1.1(c): (1) whether the defendant directed the activities of his accomplices, United States v. Carvajal, 905 F.2d 1292, 1296 (9th Cir. 1990), (2) whether the defendant controlled the flow of the drugs by, for instance, supervising the preparation of the cocaine for transportation, United States v. Sanchez, 908 F.2d 1443, 1448 (9th Cir. 1990), (3) whether the defendant recruited his accomplices, Sanchez, 908 F.2d at 1448, (4) whether the defendant arranged the sale of the cocaine, Carvajal, 905 F.2d at 1296, and (5) whether the defendant controlled the flow of money as shown by possession of financial records, Sanchez, 908 F.2d at 1448, or his being the one to receive the money after exchange, Carvajal, 905 F.2d at 1296.

Underlying each of these factors is a concern regarding relative culpability which seeks to identify and punish more severely those who exercise some degree of control or organizational authority over others. Mares-Molina, 913 F.2d at 773. However, the defendant need not personally supervise each participant nor must the defendant be the only leader or organizer. United States v. Smith, 924 F.2d 889, 896 (9th Cir. 1991).

In making its finding, the district court relied on the stipulation of facts entered into by appellant. Alvarado argues that the stipulation of facts entered into with the plea agreement does not support the district court's finding because it cannot be said under a preponderance standard that defendant exercised control over one of the participants. More specifically, Alvarado argues that both he and co-defendant had a relatively equal degree of responsibility and acted in concert at all times.

Appellant, however, fails to provide this court with a single basis for his claim; he neither identifies a factual mistake by the district court nor suggests that the district court assigned improper weight to any particular stipulation. In contrast, the United States provides several facts culled from the stipulation of facts to support a conclusion that defendant controlled the money, controlled the drugs, had primary contact with the purchaser of the drugs, and instructed Campbell on methods of avoiding detection.³  The Presentence Report adds that defendant recruited Campbell to transport the narcotics and arranged her itinerary and that it was defendant who initially accepted an uncle's offer to transport the cocaine to Alaska. For these reasons, the district court's order is not clearly erroneous.

The district court also made an alternative finding that even if defendant and co-defendant Fortier's roles could be viewed as equally controlling, it would find that both were leaders given that Campbell was clearly a follower. The Guidelines allow for a finding that more than one person was a leader. In this connection, Application to Section 3B1.1 states that " [t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy." From the facts adduced above, it is clear that Campbell was subordinate to Alvarado and it is possible that Campbell was also subordinate to Fortier. Accordingly, the district court did not commit clear error in finding that even if Fortier's role was equal to defendant's both were "leaders" for the purposes of Section 3B1.1(c).

For these reasons, the district court's order is affirmed.

AFFIRMED.