United States v. Gimy Rodriguez

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-3295

UNITED STATES OF AMERICA

v.

GIMY JOSE RODRIGUEZ, a/k/a Carvo

Appellant

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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

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Submitted: December 7, 2021

Before: SHWARTZ, PORTER, and FISHER,

Circuit Judges.

(Filed: July 12, 2022)

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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

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OPINION OF THE COURT

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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

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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

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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).

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“[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,

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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

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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

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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.

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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.

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

imposing Rodriguez’s sentence.

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