from the United States District Court for the District of New
Mexico (D.C. No. 2:12-CR-01167-RB-4)
A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New
Mexico, for Defendant-Appellant.
Richard C. Williams, Assistant United States Attorney (Damon
P. Martinez, United States Attorney, with him on the brief),
Office of the United States Attorney, Las Cruces, New Mexico,
BRISCOE, EBEL, and BACHARACH, Circuit Judges.
Ernest Marquez challenges the two-level sentence enhancement
imposed under United States Sentencing Guideline §
3B1.1(c) for his role as an organizer, leader, manager, or
supervisor in criminal activity. We affirm.
convicted Marquez of three drug charges, including, as
relevant to this appeal, possession with intent to distribute
fifty grams or more of methamphetamine ("meth") in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The
testimony and evidence at trial showed that Marquez obtained
the meth in question by arranging for two women-Veronica
Hernandez and Belinda Galvan-to drive from Las Cruces, New
Mexico, to the vicinity of Tucson, Arizona, exchange money he
had provided them for a brick of meth, and deliver the meth
to him back in Las Cruces.
Hernandez testified that Marquez asked her to go to Arizona
with Galvan and "pick something up" for him. Supp.
R. vol. VI at 106. Hernandez agreed that she "should
have known" that Marquez was referring to drugs.
Id. After all, Marquez had previously asked her to
take a trip to Arizona with Galvan, during which trip the two
women knowingly obtained cocaine in Arizona and transported
it to Michigan.
addition, Hernandez and Scott Wetherholt-a drug dealer who
often bought meth from Marquez-testified about a series of
phone calls and text messages made by Marquez regarding the
trip. Marquez discussed with Wetherholt his plans to buy one
pound of meth from Arizona for $3000. The morning of
Hernandez's trip, Marquez sent a series of text messages
to Wetherholt attempting to raise funds for the purchase.
Around noon that day, Marquez called the supplier in Arizona
from whom he had arranged to purchase the meth. That same
supplier had provided Hernandez and Galvan the cocaine to
transport on their previous trip. Marquez told the supplier
that he was "going to get the girls ready" for
their trip. Hernandez testified that by "the girls"
Marquez meant her and Galvan. Id. at 75.
afternoon, Marquez and Hernandez discussed her upcoming trip
to Tucson. Shortly thereafter, Hernandez called Marquez to
tell him that she was leaving to pick up Galvan in her car.
That evening, Marquez told Hernandez that he was
"getting the rest of the money together" so that
she and Galvan could leave for Tucson. Id. at 71.
that night, Galvan called Marquez to tell him that on the way
to Arizona she and Hernandez had been stopped at a Border
Patrol checkpoint. Marquez asked if Hernandez's car had
been searched. Although it had been searched, the Border
Patrol agents had allowed the women to keep the $2300 they
were transporting. Marquez told the women that they should
take a different route on their return trip to Las Cruces,
presumably to avoid further Border Patrol checkpoints.
Arizona, Hernandez and Galvan met with the supplier, who gave
them a container holding a one-pound brick of meth. Hernandez
and Galvan drove the meth back to Las Cruces, dropped it off
at Hernandez's apartment, and then drove to meet Marquez
at his home. On their way, they stopped at a fast-food
restaurant because Marquez had told them to buy him something
to eat. At the meeting, Marquez and the two women discussed
what had happened during the trip. After the meeting, Galvan
returned to Hernandez's apartment and retrieved the brick
of meth to deliver to Marquez at his home.
sentencing, the government requested a two-level enhancement
pursuant to Sentencing Guideline § 3B1.1(c) for
Marquez's role as an organizer, leader, manager, or
supervisor of the two women couriers who purchased and
delivered the meth. After hearing argument on the matter, the
district court ruled
I've-as I've indicated, I've read all the
materials and [defense counsel], on the legal issue, I think
that there is significant evidence for me to find that Mr.
Marquez was, in fact, a leader/organizer, at the two-level-at