United States of America v. Gimy Jose Rodriguez, a/k/a Carvo

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-3295
UNITED STATES OF AMERICA
v.
GIMY JOSE RODRIGUEZ, a/k/a Carvo
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-17-cr-00077-001)
District Judge: Honorable Robert D. Mariani
_______________
Submitted: December 7, 2021
Before: SHWARTZ, PORTER, and FISHER,
Circuit Judges.
(Filed: July 12, 2022)
______________

-- 1 of 9 --

2
Shelley L. Centini
88 North Franklin Street
Wilkes-Barre, PA 18701
Counsel for Appellant Gimy Jose Rodriguez
Bruce D. Brandler
Michelle L. Olshefski
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee United States of America
______________
OPINION OF THE COURT
______________
PORTER, Circuit Judge.
Gimy Jose Rodriguez pleaded guilty to two drug-related
crimes: (1) conspiracy to distribute and possess with intent to
distribute more than one hundred grams of heroin and
(2) possession with intent to distribute an unspecified amount
of heroin and more than fifty grams of methamphetamine. The
District Court sentenced Rodriguez to 262 months’
imprisonment, based on a 262–327-month advisory range
under the United States Sentencing Guidelines (the
“Guidelines”). That advisory range reflects two sentence
enhancements, one for being the organizer or leader of a
criminal activity involving five or more participants, the other
for maintaining a premises for distributing drugs. The only
issue Rodriguez raises on appeal is whether the District Court

-- 2 of 9 --

3
erred in holding that both enhancements apply. It did not err,
so we will affirm Rodriguez’s sentence.
I
Rodriguez distributed heroin and methamphetamine in
Luzerne County, Pennsylvania. State police investigated,
making thirteen undercover purchases of drugs from
Rodriguez and his associates. Every purchase was arranged
with Rodriguez, but an associate usually delivered the drugs.
One of those associates told an undercover police officer that
Rodriguez was the boss.
Police also monitored Rodriguez’s phone
communications. Investigators intercepted hundreds of
conversations in which Rodriguez discussed the conspiracy
with his associates and monitored their activities. Rodriguez
directed his associates where and when to sell drugs, where to
stay, and how much to charge. In one conversation Rodriguez
told a key co-conspirator, Angela Haggerty, not to extend
credit to customers. Haggerty replied that Rodriguez was the
boss and assured him she would extend no credit.
The investigation culminated in the execution of two
search warrants, one at 17 Wall Street in Wilkes-Barre, the
other at 616 Arthur Street in Hazleton. Police found
methamphetamine at 17 Wall Street and fentanyl-laced heroin
at both locations. Rodriguez lived at 17 Wall Street. Haggerty
owned 616 Arthur Street and lived there with another member
of the conspiracy. In his plea agreement, Rodriguez admitted
that he “most actively distributed drugs” at 616 Arthur Street.
His admission comports with the evidence police gathered
during their investigation. Rodriguez directed Haggerty’s sale

-- 3 of 9 --

4
of drugs from that location, and he oversaw the activities of his
other associates there as well.
II
The District Court had subject-matter jurisdiction under
18 U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We “review the
District Court’s interpretation of the Sentencing Guidelines de
novo, and scrutinize any findings of fact for clear error.” United
States v. Kluger, 722 F.3d 549, 555 (3d Cir. 2013) (quoting
United States v. Aquino, 555 F.3d 124, 127 (3d Cir. 2009)); see
also United States v. Bell, 947 F.3d 49, 54 & n.2 (3d Cir. 2020)
(reviewing de novo “the meaning of [Guidelines] sections
2B3.1(b)(4)(B) and 1B1.1,” and distinguishing this textual
analysis from the separate task of “applying that meaning to
the . . . case”). We “give due deference to the district court’s
application of the guidelines to the facts.” Buford v. United
States, 532 U.S. 59, 63 (2001) (quoting 18 U.S.C. § 3742(e));
see also United States v. Richards, 674 F.3d 215, 219 n.2 (3d
Cir. 2012). Affording the appropriate degree of deference
typically requires review of the District Court’s application of
the Guidelines for abuse of discretion, just as the Supreme
Court did in Buford. 532 U.S. at 64; see also Kluger, 722 F.3d
at 555. If “the legal issue decided by the district court is, in
essence, a factual question,” the District Court can “abuse[] its
discretion in applying the enhancement based on a particular
set of facts only if those facts were clearly erroneous.” United
States v. Thung Van Huynh, 884 F.3d 160, 165 (3d Cir. 2018)
(quoting Richards, 674 F.3d at 220, 223). So when the
Guidelines establish a “predominantly fact-driven test,” we
review the District Court’s application of the Guidelines to the
facts for clear error. Id. (quoting Richards, 674 F.3d at 223).

-- 4 of 9 --

5
“[T]he organizer or leader enhancement . . . sets forth
such a fact-driven test.” Id. The drug-premises enhancement
requires a similarly fact-intensive inquiry into the degree of
control a defendant exercised over the premises and the
connection of the premises to illegal activity. See United States
v. Carter, 834 F.3d 259, 261–63 (3d Cir. 2016). For both
enhancements, we review the District Court’s application of
the Guidelines to the facts for clear error.
III
Rodriguez admits the factual allegations against him.
On appeal he challenges only the District Court’s application
of the organizer-or-leader and drug-premises enhancements.
A
First, Rodriguez appeals the District Court’s application
of a four-level sentence enhancement for being the organizer
or leader of the conspiracy. He admits the conspiracy included
at least five participants, but Rodriguez maintains he was not
its organizer or leader because his control over the conspiracy
was limited and because he shared decision-making authority
with his co-conspirators. These arguments are unavailing.
The Guidelines instruct that a defendant’s offense level
should be increased by four levels if “the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S. Sent’g
Guidelines Manual § 3B1.1(a) (U.S. Sent’g Comm’n 2021)
(“U.S.S.G.”). “[M]ultiple persons may qualify as organizers or
leaders of extensive criminal activity, and a criminal defendant
could be an organizer, a leader, or both.” United States v.
Adair, No. 20-1463, 2022 WL 2350277, at *6 (3d Cir. Jun. 30,

-- 5 of 9 --

6
2022). “[L]abels, such as ‘kingpin’ or ‘boss,’ [do not] provide
deep insight into the applicability of the organizer-leader
enhancement. Rather, a defendant who meets the definition of
an ‘organizer’ or ‘leader’ qualifies for the four-point
enhancement.” Id. at *7. (internal citation omitted). Organizers
“g[ive] functional structure to a coordinated . . . scheme,” and
leaders exert “high-level directive power or influence” over it.
Id. at *7–8. “[S]et[ting] up a network” to obtain and distribute
drugs, “decid[ing] when and where sales would occur,”
“coordinat[ing] drug sales with [subordinates],” and deciding
when and whether to extend credit indicate a leadership and
organizational role. Id. at *8.
The District Court considered these factors when it
determined that Rodriguez was the leader of the conspiracy.
The record shows what the District Court found: Rodriguez
“set the prices,” “issue[d] edicts,” “dictated to whom and for
how much the drugs were to be sold,” and provided drugs to
his co-conspirators for distribution. App. 85. The factors the
District Court considered are probative, and our review of the
record does not leave us with “the definite and firm conviction
that a mistake has been committed,” so, the District Court did
not clearly err by applying the sentence enhancement. United
States v. Denmark, 13 F.4th 315, 317–18 (3d Cir. 2021)
(quoting United States v. Napolitan, 762 F.3d 297, 307 (3d Cir.
2014)).
B
Rodriguez also appeals the District Court’s application
of a two-level sentence enhancement for maintaining the drug
premises at 616 Arthur Street. The Guidelines advise a two-
level enhancement if “the defendant maintained a premises for
the purpose of manufacturing or distributing a controlled

-- 6 of 9 --

7
substance.” U.S.S.G. § 2D1.1(b)(12). Rodriguez contends that
he did not maintain 616 Arthur Street because his associates
owned the premises and used it to distribute drugs. We apply
the drug-premises enhancement according to its text and
consistent with our interpretation of 21 U.S.C. § 856, which
“generally describe[s]” the conduct to which the enhancement
applies.1 Fair Sentencing Act of 2010, Pub. L. No. 111-220,
§ 6, 124 Stat. 2372; see Carter, 834 F.3d 259, 262–63. To
decide if the enhancement applies, we examine whether the
defendant exercised control over the property “or supervised
or directed others to engage in certain activities at the
premises.” Carter, 834 F.3d at 262 (citing discussion of the
meaning of “maintain” in United States v. Morgan, 117 F.3d
849, 857 (5th Cir. 1997)). Other considerations include
“control, curation, acquisition of the site, renting or furnishing
the site, repairing the site, supervising, protecting, supplying
food to those at the site, and continuity.” Id. (quoting United
States v. Jones, 778 F.3d 375, 384 (1st Cir. 2015) (considering
factors relevant to maintenance of drug-involved premises
under 21 U.S.C. § 856)). Although ownership is probative, the
enhancement “does not require either ownership or a
leasehold.” Id. at 263 (quoting Jones, 778 F.3d at 385).
In Carter, we held that the drug-premises enhancement
applied to a defendant who directed that a premises leased by
1 Our sister circuits do the same. See Carter, 834 F.3d 262–63.
Before United States v. Nasir, we also considered the
Sentencing Guidelines commentary. 17 F.4th 459 (3d Cir.
2021) (en banc); see, e.g., Carter, 834 F.3d at 262. It is
unnecessary for us to do so here as there is no genuine
ambiguity in the drug-premises enhancement, and its text and
history, alone, suffice and support our analysis in Carter.

-- 7 of 9 --

8
one of his associates be “used to prepare drugs for distribution”
and “ensured that his employees were at the house working.”
Id. That “evidence showed that [the defendant] controlled the
activities of his employees and the places where essential parts
of the operation were conducted.” Id.
The District Court considered the “high level of
control” Rodriguez exercised over his associates, that
“Rodriguez directed the activities at the premises in question,”
and that those premises were one of the “places where essential
parts of drug operation[s] were conducted.” App. 74. The
District Court noted that Haggerty’s ownership of 616 Arthur
Street was of no moment, just as ownership was not dispositive
in Carter. See Carter, 834 F.3d at 262–63.
The District Court did not err in considering
Rodriguez’s control over the activities at 616 Arthur Street and
did not err in discounting Haggerty’s ownership of the
premises. Neither was its application of the requirements of the
drug-premises enhancement to Rodriguez’s conduct clear
error. Rodriguez exerted significant control over the premises
at 616 Arthur Street and that is sufficient factual basis for the
District Court’s holding.
* * *
The District Court did not clearly err when applying the
four-level sentence enhancement to Rodriguez for being the
organizer or leader of a criminal activity involving five or more
participants under U.S.S.G. § 3B1.1(a). Nor did it clearly err
when applying the two-level sentence enhancement to
Rodriguez for maintaining a premises for the purpose of
distributing a controlled substance under U.S.S.G.

-- 8 of 9 --

9
§ 2D1.1(b)(12). We will affirm the District Court’s judgment
imposing Rodriguez’s sentence.

-- 9 of 9 --