United States v. John Doe

FILED

FOR PUBLICATION FEB 17 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10385

Plaintiff - Appellee, D.C. No. 1:08-cr-00254-LJO-1

Eastern District of California,

v. Fresno

JOHN DOE,

ORDER

Defendant - Appellant.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted September 10, 2014

San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

The opinion filed February 17, 2015 is hereby withdrawn. An opinion will

be filed in its place.

Counsel Page

Carolyn Wiggin (argued), Assistant Federal Defender; Heather E. Williams,

Federal Defender, Sacramento, California, for Defendant-Appellant.

Kathleen Servatius (argued), Assistant United States Attorney; Benjamin B.

Wagner, United States Attorney; Camil A. Skipper, Appellate Chief, Fresno,

California, for Plaintiff-Appellee.

FILED

FOR PUBLICATION FEB 17 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10385

Plaintiff - Appellee, D.C. No. 1:08-cr-00254-LJO-1

v.

OPINION

JOHN DOE,

Defendant - Appellant.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted September 10, 2014

San Francisco, California

Before: BEA, IKUTA, and HURWITZ, Circuit Judges.

Opinion by Judge IKUTA, Circuit Judge:

Defendant John Doe1 challenges several rulings of the district court, made

following our remand of his previous appeal. We hold that the district court did

1

We grant the defendant’s unopposed motion for use of a pseudonym in

this opinion because this is an “unusual case” where the defendant may face “a risk

of serious bodily harm if his role on behalf of the Government were disclosed to

other inmates.” United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980).

not clearly err in determining that Doe was an “organizer” for purposes of

§ 3B1.1(c) of the Sentencing Guidelines, where his role was “coordinating the

activities of the other participants to the extent necessary to complete the

transaction.” See United States v. Varela, 993 F.2d 686, 692 (9th Cir. 1993). We

also hold that the imposition of the § 3B1.1(c) enhancement made Doe ineligible

for the “safety valve” reduction, 18 U.S.C. § 3553(f)(4), and affirm the district

court’s other rulings.

I

We recounted the factual and procedural history of this case in our prior

opinion, United States v. Doe, 705 F.3d 1134 (9th Cir. 2013), and so provide only

the information necessary for our decision here. We include the additional facts

the district court found when it resolved the parties’ sentencing-related factual

disputes as required by Doe. See id. at 1156.

In early 2008, before engaging in the criminal activities for which he was

convicted, Doe contacted the Federal Bureau of Investigation (FBI), and asked if

he could provide information about illegal drug activities in exchange for

immigration assistance for his family. Id. at 1140. At a meeting with an agent,

Doe provided the names and phone numbers of individuals involved in drug

trafficking. Id. “The agent explained that Doe was ‘putting the cart before the

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horse,’ and while such requests were sometimes granted, this occurred only after

long and successful records of cooperation with the FBI that resulted in

prosecutions and convictions.” Id. Doe repeated his request for immigration

assistance at a second meeting with an FBI agent, but the agent told Doe that he

had not yet provided the kinds of specific information that could eventually make

him eligible for such assistance. “At no point did the agent authorize Doe to

engage in illegal activity either on his own behalf or on the FBI’s behalf.” Id.

Shortly after these contacts, Doe participated in one unsuccessful and two

completed drug transactions. Two confidential informants (Joe Reyna, nicknamed

“Gordo,” and Juan Duran, nicknamed “Pelón”) and one undercover police

detective (Detective Valdes of the Fresno Police Department) posed as the three

buyers in each transaction.

Gordo obtained Doe’s contact information from the subject of a different

police investigation. When Gordo first called Doe, Doe confirmed that he would

be able to make the arrangements to secure cocaine for Gordo and his co-buyers.

He told Gordo to meet him in Los Angeles to become better acquainted and further

discuss the transaction. A few days later, Gordo and Pelón drove to Los Angeles

and attended a meeting with Doe. During the meeting, the buyers told Doe their

specifications regarding the quantity and type of drugs they wanted to purchase (20

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kilograms of cocaine), and Doe gave them the pricing information ($19,000 per

kilogram). Doe confirmed that he had the contacts necessary for obtaining that

quantity of cocaine. Doe then took Gordo and Pelón to another location to sample

the type of cocaine that would be available for purchase. The two purported

buyers then took the sample back to Detective Valdes.

Shortly thereafter, Doe informed Gordo that a trustworthy supplier now had

cocaine available in Los Angeles. Gordo, Pelón, and Detective Valdes arrived in

Los Angeles and met with Doe. Notwithstanding Doe’s assurances, and repeated

calls to hurry the suppliers, the cocaine did not arrive. The buyers left empty

handed.

Doe contacted Gordo a few days later with the information that although

cocaine was not immediately available, Doe could supply methamphetamine if

Gordo and his co-buyers were interested. Gordo agreed to purchase 12 pounds of

methamphetamine. Doe gave him the price, $17,900 per pound, as well as the

contact information for Jesus Fletes, who was the contact person taking delivery of

the methamphetamine. Gordo and Pelón met with Fletes to arrange logistical

details. After this meeting, Gordo called Doe to express his doubts about Fletes,

but Doe assured him that Fletes could deliver the methamphetamine.

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Gordo and Pelón then went to Fletes’s establishment to consummate the

transaction, which took place under law enforcement surveillance. Although Doe

did not accompany them, he communicated with Gordo frequently during the

transaction. After Fletes showed Gordo and Pelón the methamphetamine, law

enforcement personnel arrested Fletes. Doe called Fletes shortly after Fletes’s

arrest to confirm the deal had succeeded, and Fletes, now cooperating with the

police, assured him it had. A few days later, Fletes called Doe and the two

discussed how they would divide the profits.

Following this transaction, Doe told Gordo that the 20 kilograms of cocaine

he had requested was available, and Doe could sell it to Gordo and his cohorts in

two 10 kilogram transactions. Doe asked Gordo and his co-buyers to come to Los

Angeles for the sale. Two other individuals involved in drug trafficking, Hector

Rodriguez and Jorge Bautista, were responsible for bringing the cocaine to the

location where the deal would be completed. On the day of the sale, Doe kept in

constant contact with Rodriguez and Bautista. He also spoke to Detective Valdes,

who was still undercover as a buyer. Valdez suggested that Doe place the drugs in

a car, which Doe could then exchange for a second car in which Valdes would

place the money. Later in the day, Doe met with Detective Valdes, Gordo, and

Pelón to verify that they had placed sufficient funds to purchase the cocaine in their

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vehicle. Doe and Pelón then drove to meet Rodriguez and Bautista, while Gordo

remained with Detective Valdes. Once Pelón confirmed that the cocaine was at the

appointed location, law enforcement officials arrested Doe, Bautista, and

Rodriguez. Doe immediately told Detective Valdes he was an informant working

with the FBI. Doe, 705 F.3d at 1141. But when Detective Valdes asked him if he

was working with the FBI on this specific case, Doe said “no.” Id.

Doe was indicted on August 7, 2008 for aiding and abetting each of the

following offenses: conspiracy to distribute methamphetamine, conspiracy to

distribute cocaine, possession of methamphetamine with intent to distribute, and

possession of cocaine with intent to distribute. At trial, Doe relied on a “public

authority defense,” namely, that he had engaged in the criminal acts with the

approval of the FBI for the purpose of providing the FBI with information

regarding criminal activities. Id. After a four-day trial and jury deliberations, the

jury returned guilty verdicts on all counts. Id. at 1141–42.

In his first appeal, Doe raised two claims relevant here. See Doe, 705 F.3d

at 1149–57. First, he argued that the district court had erred in denying two of his

discovery requests. Id. at 1150. Doe requested:

5. Any and all records or reports which document any and all

telephone numbers, license plate numbers, or individuals, provided or

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identified by [Doe] to FBI [agents,] as being associated, involved, or

related to criminal activity; [“Request Five”]

6. Any and all records, reports or calendars which document the date of any

meeting or communication, or planned meeting or communication between

[Doe] and FBI [agents]; [“Request Six”]

Id. at 1141 (alterations in original). Before trial, the district court rejected Doe’s

requests on the ground that they were so overbroad that it was not possible to

determine how the information sought was material to preparing a defense. Id at

1150 (citing Fed. R. Crim. P. 16(a)(1)(E)(i)). Doe explained that he sought this

information to support his public authority defense, which was based on evidence

that he met with FBI agents twice prior to his arrest, and provided them with at

least one name and telephone number that he claimed related to a drug trafficker.

Id. at 1140, 1150–51.

Doe also claimed that the government violated its obligation to disclose

material exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), by

failing to provide the information identified in the discovery requests. Doe, 705

F.3d at 1152.

Doe held that the district court abused its discretion in denying the requests,

which we deemed to be narrow and pointed. Id. at 1150–51. We stated that the

requests were “well tailored” in that they explained the specific information sought

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and identified the types of documents likely to contain that information. Id. at

1150. We also held that the requests related to a specific time frame: the periods

during which the FBI met with or spoke to Doe. Id. We therefore vacated Doe’s

conviction and remanded to the district court to address the discovery and Brady

issues. Id. at 1151–52. We directed the district court to grant Doe’s motion for a

new trial if the government’s responsive documents contained information that

might have altered the verdict. Id. at 1152–53. If the new information would not

have had such an effect, the district court was to reinstate the conviction. Id.

Second, Doe claimed that the district court made a number of procedural

errors at sentencing. Among other things, the court failed to address Doe’s

argument that he was not an “organizer” for purposes of § 3B1.1(c), id. at 1143,

which requires the imposition of a two-point sentence enhancement for a defendant

who “was an organizer, leader, manager, or supervisor” in a specified criminal

activity, U.S.S.G. § 3B1.1(c). We agreed, and rejected the government’s argument

that the district court had implicitly rejected Doe’s objection. Doe, 705 F.3d at

1155. First, we held that an “implicit ruling was insufficient to comply with this

court’s interpretation of Rule 32” of the Federal Rules of Criminal Procedure, id. at

1154–55; rather, a court must explicitly resolve objections and factual disputes

relating to sentencing enhancements, id at 1155. Moreover, we stated that the

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inadequacy of an implicit ruling in this case “is even more pronounced due to the

weak support for any implicit findings the court may have made,” and ruled that

“[i]f this enhancement is to be imposed, the judge must make more explicit

findings” on remand to resolve the factual disputes. Id. at 1156; see also id. at

1155 n.12. After finding in Doe’s favor on his other claims of procedural error, we

vacated the sentence and remanded for further proceedings. Id. at 1156–57.

On remand, the government responded to the discovery requests by

submitting additional declarations of two FBI agents who met with Doe. One

agent’s declaration stated he had met Doe only once, and attached a calendar entry

and an email referring to an April 15 meeting with Doe. The other agent’s

declaration stated that he “conducted a global search of the electronic records

database” of the FBI, that the FBI database “contains all reports that would be

responsive” to the requests, and that the search performed “encompassed the

requested information.” Based on this search, the second agent stated that the

government had already given Doe all responsive documents, including his notes

of and report on his meetings with Doe. The district court rejected Doe’s argument

that the government should have searched additional databases to see if they

contained any references, during any time period, to the same phone numbers,

license plate numbers, or names Doe had given the government. It concluded that

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all information responsive to the discovery requests had been produced. Because

nothing in the response to the discovery requests would have affected the jury’s

verdict, the district court reinstated the conviction.

At Doe’s re-sentencing, the district court imposed a two-level enhancement

under § 3B1.1(c) for being an organizer. The district court responded to Doe’s

mandate that it resolve the objections and factual disputes affecting the organizer

enhancement; it heard the parties’ arguments and then verified and incorporated as

part of its factual findings a portion of the fact section of the government’s

sentencing memorandum. In addition, the district court made a number of findings

supporting its determination that Doe was the “nexus” who “connected all the

participants together.” The district court noted that Doe not only introduced the

parties, but also “actively participated at many levels, doing many other things.”

Doe “participated in specific and repetitive arrangements for distribution of

methamphetamine and cocaine in some course at some level” and “directly or

indirectly, negotiated the price of the methamphetamine.” Based on these findings,

the district court concluded that Doe qualified as an “organizer” and overruled his

objection to the imposition of the organizer enhancement. The district court also

ruled that Doe did not merit a safety valve reduction and denied a reduction for

acceptance of responsibility.

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II

In this second appeal, Doe claims the district court erred in concluding that

one of the two discovery requests, Request Five, was satisfied by the documents

the government produced. He also claims that the district court made two

erroneous decisions under the Sentencing Guidelines by imposing the § 3B1.1(c)

enhancement for being an organizer and by denying him a sentence reduction for

acceptance of responsibility under § 3E1.1. Finally, he claims that the district

court erred by denying him a reduction under the safety valve provision, pursuant

to 18 U.S.C. § 3553(f)(4).

We review discovery orders for an abuse of discretion. Doe, 705 F.3d at

1149–50. We first determine “whether the district court identified the correct legal

standard” and then “determine whether the district court’s findings of fact, and its

application of those findings of fact to the correct legal standard, were illogical,

implausible, or without support in inferences that may be drawn from facts in the

record.” United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

We review alleged Brady violations de novo. United States v. Stever, 603 F.3d

747, 752 (9th Cir. 2010).

We review the district court’s interpretation of the Sentencing Guidelines de

novo, United States v. Swank, 676 F.3d 919, 921 (9th Cir. 2012), and review its

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factual findings in sentencing for clear error, United States v. Bonilla-Guizar, 729

F.3d 1179, 1186 (9th Cir. 2013) (citing United States v. Kimbrew, 406 F.3d 1149,

1151 (9th Cir. 2005)). The district court’s determination that a defendant is an

“organizer” for purposes of the § 3B1.1(c) enhancement is a question of fact

reviewed for clear error. United States v. Lopez-Sandoval, 146 F.3d 712, 716 (9th

Cir. 1998). “A district court’s decision about whether a defendant has accepted

responsibility is a factual determination reviewed for clear error.” United States v.

Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010) (quoting United States v. Cantrell, 433

F.3d 1269, 1284 (9th Cir.2006)).2 We consider each of Doe’s claims in turn.

A

We first consider Doe’s claim that the district court abused its discretion in

holding that the government’s disclosures satisfied Request Five. Doe argues that

the language of Request Five, asking for “[a]ny and all records or reports which

document any and all telephone numbers, license plates numbers, or individuals,

2

The government notes our intracircuit split on whether we review a district

court’s application of the Sentencing Guidelines to the facts de novo or for an

abuse of discretion. See Swank, 676 F.3d at 921. We need not reach this issue,

however. Doe raises only two Sentencing Guidelines issues: the district court’s

determination that he is an “organizer” for purposes of the § 3B1.1(c)

enhancement, and its holding that he did not accept responsibility for purposes of

§ 3E1.1. Our cases consistently apply the clear error standard of review to each of

these objections.

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provided or identified” by Doe to the government, broadly requests all records in

the government’s possession that mention those telephone numbers, license plate

numbers, or names of individuals, regardless whether the records are related to

Doe’s interaction with the FBI. Doe argues that if he could prove he provided

information that relates to actual criminals, it would demonstrate that he genuinely

intended to help the FBI.

The district court’s holding is consistent with the most natural reading of

Request Five. Request Five asks for reports regarding Doe’s conveyance of

specified information to the government, not reports unrelated to Doe’s alleged

assistance that happen to contain the same information. This natural interpretation

of the discovery request is also consistent with our analysis in Doe, where we

stated that the requests were narrowly tailored and limited to documents created

within the time frame during which Doe met with the FBI agents. Doe, 705 F.3d at

1150. Under Doe’s interpretation, by contrast, the government would have to

search for records spanning an indefinite period of time. Because the district

court’s narrower reading of the requests is not “illogical, implausible, or without

support in inferences that may be drawn from facts in the record,” see Hinkson,

585 F.3d at 1251, the district court did not err in holding there was no discovery

violation.

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Doe also argues that because the government did not respond fully to

Request Five, it failed to fulfill its Brady obligations. Doe has not shown that he

has been prejudiced by the government’s failure to disclose documents responsive

to his broader reading. See Doe, 705 F.3d at 1152–53. Even if the government

produced documents showing that the telephone numbers, license plates, or names

provided by Doe belonged to real criminals, such evidence would not materially

bolster Doe’s defense that he committed criminal acts as an FBI informant or

undermine confidence in the verdict. We therefore also affirm the district court’s

rejection of Doe’s Brady claim.

B

We next consider Doe’s challenge to the two-level enhancement under

§ 3B1.1(c).

Chapter 3, Part B of the Sentencing Guidelines “provides adjustments to the

offense level based upon the role the defendant played in committing the offense.”

U.S.S.G. § 3B, introductory cmt. Section 3B1.1 provides for enhancements of a

defendant’s offense level if the defendant played an aggravating role in the

criminal activity. It states, in full:

§3B1.1. Aggravating Role

Based on the defendant’s role in the offense, increase the offense level as

follows:

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(a) If the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive, increase by 4

levels.

(b) If the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was

otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in

any criminal activity other than described in (a) or (b), increase by 2 levels.

The plain text of §§ 3B1.1(a) and (b) requires only that the participants be

“involved” in the criminal activity the defendant organizes, leads, manages, or

supervises. On its face, § 3B1.1(c) does not require even the involvement of a

participant. Nevertheless, under our precedent, see Varela, 993 F.2d at 692, and

the relevant application note, the defendant must have “been the organizer, leader,

manager, or supervisor of one or more other participants,” § 3B1.1, cmt. n.2

(emphasis added). The term “participant” is defined to mean someone “who is

criminally responsible for the commission of the offense,” which does not include

undercover officers or informants. § 3B1.1, cmt. n.1.

In light of this requirement, we have held that in order for a defendant to

qualify as an “organizer” for purposes of § 3B1.1(c), there must be “evidence that

the defendant [1] exercised some control over others involved in the commission

of the offense or [2] was responsible for organizing others for the purpose of

carrying out the crime.” United States v. Whitney, 673 F.3d 965, 975 (9th Cir.

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2012) (internal quotation marks omitted). Doe’s role is best described by the

second prong of this disjunctive test, and we therefore focus on this aspect of the

organizer enhancement under § 3B1.1(c).

The Sentencing Guidelines do not define the key term “organizer,” so we

turn to the dictionary definition. See United States v. Flores, 729 F.3d 910, 914

(9th Cir. 2013) (stating that undefined Sentencing Guidelines terms are given their

plain meaning, for which we may consult dictionary definitions). The dictionary

defines “organizer” as “[a] person who organizes,” and defines “organize” as to

“make arrangements or preparations for (an event or activity); coordinate” or to

“coordinate the activities of (a person or group of people) efficiently: organize and

lead a group of people.” New Oxford American Dictionary 1236 (3rd ed. 2010)

(italics omitted). This dictionary definition is consistent with language in the

application notes to § 3B1.1, which suggests that a court should consider

organizing, planning, and preparation activities, in addition to the degree of

authority and control over others. See § 3B1.1, cmt. n.4.

Consistent with the plain language of the Sentencing Guidelines, we have

held that a defendant who has the “organizational authority,” Lopez-Sandoval, 146

F.3d at 717, necessary to coordinate the activities of others to achieve a desired

result is an “organizer” for purposes of the enhancement under § 3B1.1(c), see

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Varela, 993 F.2d at 692.3 In Varela, we affirmed the district court’s ruling that a

defendant who “coordinated the procurement and the distribution of drugs from

numerous suppliers” qualified for the § 3B1.1(c) enhancement. 993 F.2d at 691.

Likewise in United States v. Avila, we upheld a district court’s finding that the

defendant was an organizer where he “coordinated the procurement and the

distribution of both cocaine and heroin” and “had numerous sources for his drugs.”

905 F.2d 295, 299 (9th Cir. 1990). In sum, the organizer enhancement is

appropriately applied to defendants who coordinate drug transactions because

“[t]he enhancement reflects the greater level of culpability of the participant who

arranges the transaction.” Varela, 993 F.2d at 691–92; see also United States v.

Montano, 250 F.3d 709, 716 (9th Cir. 2001).4

3

Section 3B1.1(c) applies to an “organizer” of a criminal organization that

has less than five participants, whereas § 3B1.1(a) applies to an “organizer” of a

criminal activity “that involved five or more participants.” The Sentencing

Guidelines application notes indicate that the terms “organizer, leader, manager, or

supervisor” have different meanings in “relatively small criminal enterprises” than

they do in “larger enterprises that tend to have clearly delineated divisions of

responsibility.” U.S.S.G. § 3B1.1, background cmt. Because we are interpreting

the term “organizer” for purposes of a smaller organization described in

§ 3B1.1(c), we do not address the extent to which our decision may apply to the

term “organizer” in § 3B1.1(a).

4

Doe attempts to distinguish Avila and Varela on the ground that they were

decided before a 1993 amendment to the Sentencing Guidelines application notes,

which added the current language requiring evidence that the defendant was “the

(continued...)

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An organizer need not also be a supervisor or a superior in a hierarchy of

criminal associates. See U.S.S.G. § 3B1.1(c); see also Varela, 993 F.3d at 691. As

we explained in Varela, the text of the Sentencing Guidelines requires this

conclusion. 993 F.2d at 691. “[A] statute should be construed so that effect is

given to all its provisions, so that no part will be inoperative or superfluous . . . .”

Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks

omitted). Because “[s]ection 3B1.1 allows enhancements for ‘organizers’ as well

as for ‘supervisors,’ ‘leaders,’ or ‘managers,’” Varela, 993 F.3d at 691, requiring

an organizer to also be a supervisor would make the term “organizer” superfluous.

Thus, the organizer enhancement properly applies to a defendant who “organizes

others in the commission of the criminal activity even though he does not retain a

supervisory role over the other participants.” Id.

4

(...continued)

organizer, leader, manager, or supervisor of one or more other participants.” His

argument is based on an erroneous view of our case law prior to that amendment.

The 1993 amendment to the application note resolved a circuit split as to whether

the § 3B1.1(c) enhancement could apply if a defendant merely organized

“property, assets, or activities of a criminal organization,” § 3B1.1 cmt. n.2, but did

not organize participants. U.S.S.G. app. C, amendment 500. In clarifying that a

defendant must organize participants, not just property or activities, to be eligible

for the § 3B1.1(c) enhancement, the amendment made the Sentencing Guidelines

section consistent with our pre-existing decisions. See Varela, 993 F.2d at 692; see

also U.S.S.G., Appendix C, amendment 500. Therefore, our pre-1993 case law,

including Avila and Varela, is consistent with the amendment.

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Applying this interpretation in Varela, we confirmed that “[t]he fact that [the

defendant] and his suppliers were not in a permanent hierarchical relationship does

not preclude our conclusion” that the district court did not clearly err in imposing

the organizer enhancement. Id. at 691. Similarly, in Montano we held that the

defendant, who sold Mexican pharmaceuticals his suppliers smuggled into the

United States, was eligible for an organizer enhancement even though he had no

supervisory relationship with his suppliers, who were “independent contractors,

smugglers-for-hire, with [the defendant] being only one of their many customers.”

250 F.3d at 711, 715. Applying the enhancement was appropriate because the

defendant coordinated the smuggling operation to achieve its objective, telling his

suppliers “when to make a crossing, what pharmaceuticals to purchase, and where

to deliver them.” Id. at 716. Accordingly, we conclude that the term “organizer”

in § 3B1.1(c) applies to defendants who have the ability and influence necessary to

coordinate the activities of others to achieve the desired result, whether or not they

have a superior rank in a criminal hierarchy.5

5

This conclusion is consistent with the well-reasoned conclusions of the

First, Seventh, Eighth, and Tenth Circuits. See United States v.

Carrero-Hernandez, 643 F.3d 344, 350 (1st Cir. 2011) (observing that a defendant

“may be classified as an organizer, though perhaps not as a leader, if he

coordinates others so as to facilitate the commission of criminal activity” (internal

quotation marks omitted)); United States v. Brown, 315 F.3d 929, 932 (8th Cir.

(continued...)

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Doe argues that Bonilla-Guizar and Whitney stand for the principle that the

§ 3B1.1(c) enhancement requires supervision and some degree of control over

others. We disagree. Bonilla-Guizar does not address the issue. In Bonilla-

Guizar, we remanded for clarification of whether the defendant supervised a

“participant.” 729 F.3d at 1186–87. The district court held that the defendant, a

drug “stash house sitter,” had supervised “whatever went on in that house,” but it

was unclear whether the defendant directed the actions of other criminal

participants, or only the actions of the hostages kept there. Id. Likewise, Whitney

does not support Doe’s argument. In Whitney, a defendant participated in a

scheme for filing fraudulent tax returns by supplying a co-defendant with tax forms

and information on filing false returns, and “filing his own false returns as well as

false returns using other inmates’ identities.” 673 F.3d at 969. We concluded that

5

(...continued)

2003) (“[W]e do not require proof of control so long as the criminal activity

involves more than one participant and the defendant played a coordinating or

organizing role.” (internal quotation marks omitted)); United States v.

Valdez-Arieta, 127 F.3d 1267, 1271 (10th Cir. 1997) (holding that “devising a

criminal scheme, providing the wherewithal to accomplish the criminal objective,

and coordinating and overseeing the implementation of the conspiracy even though

the defendant may not have any hierarchical control over the other participants” is

sufficient to apply the § 3B1.1(c) enhancement); United States v. Bush, 79 F.3d 64,

67 (7th Cir. 1996) (stating that although control is a “significant factor, the overall

focus of § 3B1.1 is relative responsibility within a criminal organization,” so the

enhancement applies even absent control if the defendant “played a coordinating or

organizing role”).

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this evidence showed only that the defendant had “facilitated the crime,” id. at

975–76, which was “insufficient to support a determination that [the defendant]

was an organizer or leader warranting a two-level upward adjustment,” id. at 976.

In explaining why a facilitating role was an insufficient basis for imposing the

enhancement, we focused on the defendant’s failure to exercise “the necessary

level of control,” id. at 975, or have the requisite “supervisory role” in the offense,

id. at 976. Contrary to Doe’s argument, however, we did not hold that an

“organizer” must also be a supervisor to qualify for the § 3B1.1(c) enhancement or

suggest that a defendant who took a leading role in coordinating a transaction

would lack the requisite degree of control. Rather, we correctly explained that “[a]

court may impose this enhancement if there is ‘evidence that the defendant

exercised some control over others involved in the commission of the offense or

was responsible for organizing others for the purpose of carrying out the crime.’”

Id. at 975 (quoting United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007))

(emphasis added). Accordingly, Whitney is best read as reiterating our long-

standing rule that evidence showing that a defendant merely facilitated a criminal

activity is insufficient to show that the defendant had the aggravating role required

under § 3B1.1(c), whether as an organizer, leader, manager, or supervisor. See id.

at 975; see also Lopez-Sandoval, 146 F.3d at 716–17.

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As indicated in Whitney and Lopez-Sandoval, we do not apply the

enhancement merely because a defendant’s “important role” makes him “integral

to the success of the criminal enterprise” and gives him a “high degree of

culpability.” Whitney, 673 F.3d at 975; see also Lopez-Sandoval, 146 F.3d at

717–718 (holding that the defendant’s role as a translator for his co-conspirators,

though important, was an insufficient basis for applying the § 3B1.1(c)

enhancement). We have also rejected a district court’s use of a “but/for test” in

this context, and reversed a decision that a defendant qualified for the organizer

enhancement because the criminal enterprise could not succeed without him. See

United States v. Harper, 33 F.3d 1143, 1151 (9th Cir. 1994). Rather, to qualify for

the § 3B1.1(c) organizer enhancement, the defendant must have the necessary

influence and ability to coordinate the behavior of others so as to achieve the

desired criminal result. See Varela, 993 F.2d at 691; Avila, 905 F.2d at 299; see

also U.S.S.G. § 3B1.1, cmt. n.2.

We conclude that, in light of the facts and our precedent, the district court

did not clearly err in determining that Doe was an “organizer” for purposes of

§ 3B1.1(c). As required by Doe, the district court resolved the objections and

factual disputes raised by the parties. Its findings were not clearly erroneous and

they support the court’s conclusion that Doe’s efforts to coordinate “the

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procurement and the distribution of drugs from numerous suppliers,” and his role

in “coordinating the activities of the other participants to the extent necessary to

complete the transaction,” is sufficient to uphold the organizer enhancement.

Varela, 993 F.2d at 691–92. Doe’s coordination of the activities of the criminal

participants, namely Fletes, Bautista, and Rodriguez, as well as non-criminal

participants, including Gordo, Pelón, and Detective Valdez, was the driving force

behind the success of two drug transactions and near completion of a third. Doe

put the deal together by negotiating the type, quantity, and price of drugs for each

transaction, and then ensured the drugs, money, and participants arrived when and

where needed. Imposing the organizer enhancement when a defendant has this

level of involvement “reflects the greater culpability of the participant who

arranges the transaction.” Varela, 993 F.2d at 691–92; see also Montano, 250 F.3d

at 716.

As an organizer, Doe is ineligible for safety valve relief, pursuant to 18

U.S.C. § 3553(f)(4). We therefore also affirm the district court’s denial of relief

under the safety valve.

C

Finally, we turn to Doe’s claim that the district court erred in denying him a

two-level offense reduction for acceptance of responsibility. A defendant may

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receive at two-level offense reduction if he “clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a). The “adjustment is not

intended to apply to a defendant who puts the government to its burden of proof at

trial by denying the essential factual elements of guilt, is convicted, and only then

admits guilt and expresses remorse,” U.S.S.G. § 3E1.1 cmt. n.2, though going to

trial does not necessarily preclude the adjustment if the defendant asserts an

incomplete, rather than complete, defense at trial, see United States v. Burrows, 36

F.3d 875, 883 (9th Cir. 1994). The district court’s decision on this point is entitled

to “great deference” because “[t]he sentencing judge is in a unique position to

evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.5.

The decision is “not to be disturbed ‘unless it is without foundation.’” United

States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993) (quoting United States v. Aichele,

941 F.2d 761, 767) (9th Cir. 1991)).

At sentencing, the district court found that Doe’s testimony that he engaged

in criminal conduct for the purpose of gaining information to give to the FBI was

not believable, and that Doe was not truthful to the government or to the jury when

he testified. Although Doe challenges this finding on the ground that he could

subjectively believe that he was helping the FBI, even though the jury and judge

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decided that this belief was not reasonable, the district court’s findings are well

supported by the record and not clearly erroneous.

We have previously held that a defendant’s persistence in maintaining that

he lacked criminal intent because he engaged in criminal actions at the behest of

the government is “incompatible with acceptance of responsibility.” Burrows, 36

F.3d at 883. In Burrows, the defendant “freely admitted committing the actus reus

of the crime,” but “maintained even after trial that he had a complete defense based

on his purported lack of mens rea.” Id. We held that the defendant’s continued

insistence that he was working for the government showed that he “placed

responsibility on others and accepted none himself.” Id. Here, like in Burrows,

Doe’s defense was inconsistent with accepting responsibility.6 See id. Doe’s

argument that he is eligible for the downward adjustment because he admitted to

criminal acts and expressed remorse fails, given his continued insistence that he

lacked criminal intent. The district court did not err in determining that Doe failed

6

Doe claims that he did not deny his criminal intent at trial. He reasons that:

(1) Doe held that a public authority defense does not negate mens rea; (2) Doe

raised a public authority defense at trial; (3) therefore, Doe did not deny his

criminal intent. This argument fails because the court’s finding that Doe did in fact

deny his criminal intent at trial is well supported by the record. Indeed, Doe

requested a jury instruction stating that if the jury accepted his public authority

defense, “the defendant may not be convicted of violating the criminal statute,

because the requisite intent is lacking.” Doe, 705 F.3d at 1141.

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to show he accepted responsibility for his offense, and it therefore did not err in its

denial of the downward adjustment.

AFFIRMED.

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Counsel Page

Carolyn Wiggin (argued), Assistant Federal Defender; Heather E. Williams,

Federal Defender, Sacramento, California, for Defendant-Appellant John Doe.

Kathleen Servatius (argued), Assistant United States Attorney; Benjamin B.

Wagner, United States Attorney; Camil A. Skipper, Appellate Chief, Fresno,

California, for Plaintiff-Appellee United States of America.

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