USA v. Uriel Fajardo-Albarran

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11873
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
URIEL FAJARDO-ALBARRAN,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:22-cr-00074-JA-PRL-1
____________________
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2 Opinion of the Court 23-11873
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
Uriel Fajardo-Albarran appeals his 276-month sentence for
one count of conspiracy to possess with intent to distribute 50
grams or more of methamphetamine and three counts of
distribution and possession with intent to distribute 50 grams or
more of methamphetamine. On appeal, he argues that the
district court erred by applying an aggravating-role enhancement
under U.S.S.G. § 3B1.1(a) because, he says, there were not five or
more identified participants in the conspiracy. After careful
review of the parties’ arguments, we affirm.
We review a district court’s finding regarding a defendant’s
role in the offense under § 3B1.1 for clear error. United States v.
Moran, 778 F.3d 942, 979 (11th Cir. 2015). A factual finding is
clearly erroneous when, in light of the entire record, we are “left
with the definite and firm conviction that a mistake has been
committed.” United States v. Gupta, 572 F.3d 878, 887 (11th Cir.
2009) (quotation marks omitted). “The district court’s choice
between two permissible views of the evidence as to the
defendant’s role in the offense will rarely constitute clear error so
long as the basis of the trial court’s decision is supported by the
record and does not involve a misapplication of a rule of law.”
United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016)
(quotation marks omitted). While we review the facts for clear
error, the district court’s determination that an individual is a
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23-11873 Opinion of the Court 3
“participant” under § 3B1.1 is a question of law that we review de
novo. United States v. Williams, 527 F.3d 1235, 1249 (11th Cir.
2008).
Under the sentencing guidelines, a four-level enhancement
applies if 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. § 3B1.1(a). Regarding the “otherwise
extensive” prong, the court must consider “all persons involved
during the course of the entire offense.” Id. § 3B1.1 cmt. 3.
Under this prong, the defendant must have been an organizer of
just one or more other participant. Id. § 3B1.1 cmt. 2; United
States v. Walker, 490 F.3d 1282, 1301 (11th Cir. 2007).
“A ‘participant’ under § 3B1.1 is a ‘person who is criminally
responsible for the commission of the offense but need not have
been convicted.’” United States v. Zitron, 810 F.3d 1253, 1261 (11th
Cir. 2016) (quoting U.S.S.G. § 3B1.1 cmt. 1). In assessing whether
an individual is “criminally responsible,” we may consider any of
the acts directed by the defendant that were “part of the same
course of conduct or common scheme or plan as the offense of
conviction.” Id. at 1261–62 (quotation marks omitted). Thus, it
is enough if an individual knowingly participates in the criminal
conduct. Id. at 1262. The defendant may be considered one of
the participants in counting the number of participants involved in
the offense. See United States v. Duperval, 777 F.3d 1324, 1337 (11th
Cir. 2015). A person who “is not criminally responsible for the
commission of the offense,” such as an undercover law
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4 Opinion of the Court 23-11873
enforcement officer, is not a participant within the meaning of the
Guidelines. U.S.S.G. § 3B1.1 cmt. 1. For a court to impose the
enhancement, the government must establish by a preponderance
of the evidence that the defendant exerted some control, influence,
or decision-making authority over another participant in the
criminal activity. United States v. Martinez, 584 F.3d 1022, 1026–27
(11th Cir. 2009); U.S.S.G. § 3B1.1 cmt. 2.
The commentary to § 3B1.1 provides several factors for a
sentencing court to consider in distinguishing a leadership role
from a management role: “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.” U.S.S.G. § 3B1.1 cmt. 4. There is no requirement
that all the factors be present for the enhancement to apply, and
there may be more than one person who qualifies as a leader. Id.;
Martinez, 584 F.3d at 1026.
In making the ultimate determination of the defendant’s
role in the offense, the sentencing judge has no duty to make
specific subsidiary factual findings. United States v. De Varon,
175 F.3d 930, 939 (11th Cir. 1999) (en banc). “So long as the
district court’s decision is supported by the record and the court
clearly resolves any disputed factual issues, a simple statement of
the district court’s factual conclusion is sufficient.” Id. (emphasis
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23-11873 Opinion of the Court 5
omitted). In determining the defendant’s role, first, “the district
court must measure the defendant’s role against the relevant
conduct for which [he] was held accountable at sentencing.” Id. at
945. Second, the district court must measure the defendant’s role
against the other discernable participants in the relevant
conduct. Id. at 944–45. And we have noted that the
non-exhaustive list of factors outlined in the amended commentary
acts to clarify what a court should consider when making role
determinations while still embracing the approach from De Varon.
United States v. Cabezas-Montano, 949 F.3d 567, 606 (11th Cir. 2020)
(quotation marks omitted).
Here, Fajardo-Albarran cannot show that the district court
erred in imposing a four-level role enhancement pursuant to
U.S.S.G. § 3B1.1(a), because the government showed by a
preponderance of the evidence that he was an organizer or leader
of drug-trafficking activity that involved five or more participants
or was otherwise extensive. The district court properly applied
Fajardo-Albarran’s conduct to the seven factors that we consider
when determining if a defendant is an organizer or leader and
found that nearly all the criteria weighed in favor of the role
enhancement. See U.S.S.G. § 3B1.1, cmt. 4; see also Martinez, 584
F.3d at 1026–28. At his trial, the government provided evidence
that Fajardo-Albarran exercised decision-making authority over at
least one of his co-conspirators, his brother Zuriel; was involved
with distribution of the drugs; obtained the drugs personally and
through Zuriel; fronted drugs to those he supplied; traveled to
Atlanta and Mexico as part of the conspiracy; sent Zuriel to Texas
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6 Opinion of the Court 23-11873
to obtain drugs; and recruited at least two participants. This
evidence demonstrates Fajardo-Albarran’s planning and
organization, decisionmaking authority and control of others, and
high degree of participation and leadership nature in the drug-
trafficking activity. Even if the evidence did not support a finding
that Fajardo-Albarran claimed a right to the larger share of the
profits of the drug sales, the enhancement does not require that
each factor be present.
The district court also properly determined that the
conspiracy involved five or more participants, as trial testimony and
evidence presented established at least seven named and several
unnamed individuals were participants in the conspiracy, which
exceeds the required five participants. For example, the record
reveals that Fajardo-Albarran had an ongoing relationship with
witness Heather Hutchinson wherein he would front several
ounces of methamphetamine to her each week, and Fajardo-
Albarran concedes that she was a participant. Trial testimony and
exhibits support that a government confidential source, Robert
Waldron, participated in controlled buys with Fajardo-Albarran,
and that on several occasions Waldron was fronted drugs by
Fajardo-Albarran outside the scope of his government
cooperation. While Fajardo-Albarran argues that Waldron could
not be a participant because he acted as a government agent,
Waldron exceeded the scope of his work as a confidential source
by participating in at least five transactions with Fajardo-Albarran
without law enforcement’s knowledge. Additionally, text and
Facebook messages entered into evidence showed that Fajardo-
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23-11873 Opinion of the Court 7
Albarran provided drugs on credit to two other individuals and that
Fajardo-Albarran recruited another two individuals to sell drugs for
him. Testimony and trial exhibits revealed that another
participant, Kike Fajardo, and Fajardo-Albarran discussed sources
of supply in Atlanta, coordinated the sales of methamphetamine,
and brokered deals. Moreover, Fajardo-Albarran concedes that
his brother Zuriel was a participant.
In conclusion, the district court not err by applying a
four-level aggravating role enhancement because the evidence
showed that Fajardo-Albarran was an organizer or leader of drug-
trafficking activity that involved five or more participants or was
otherwise extensive. Further, the court was not required to make
a specific factual finding with respect to the identity of each
participant in the scheme. De Varon, 175 F.3d at 939.
Accordingly, we affirm.
AFFIRMED.
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