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United States v. Marquez

United States Court of Appeals, Tenth Circuit

August 12, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ERNEST JOE MARQUEZ, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:12-CR-01167-RB-4)

          Todd 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, for Plaintiff-Appellee.

          Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.

          EBEL, Circuit Judge.

         Defendant-Appellant 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.

         I. BACKGROUND

         A jury 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.

         Specifically, 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.

         In 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.

         That 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.

         Later 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.

         In 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.

         At 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 the ...

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