United States v. Santiago Mares-Molina

913 F.2d 770 UNITED STATES of America, Plaintiff-Appellee, v. Santiago MARES-MOLINA, Defendant-Appellant. No. 89-50706. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 9, 1990. Decided Sept. 10, 1990. Peter A. Vance, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Mary A. Schneider and Shane P. Harrigan, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before REINHARDT, LEAVY and RYMER, Circuit Judges. LEAVY, Circuit Judge: 1 Santiago Mares-Molina ("Mares") appeals from his sentence imposed under the sentencing guidelines following a plea of guilty to conspiracy to import cocaine in violation of 21 U.S.C. Secs. 952 , 960, and 963. Mares argues that the district court's finding that he was "an organizer, leader, manager, or supervisor in [the] criminal activity" pursuant to guideline section 3B1.1(c) is not supported by the record. We agree, and thus vacate the two-point upward adjustment in offense level and reduce Mares' sentence to twelve months, the maximum allowable under the guidelines. FACTS AND PROCEEDINGS 2 On April 20,…

dissenting:

I respectfully dissent, because one may “manage” a thing, such as a business or money or a warehouse, as well as a person.

“We construe the terms in the Sentencing Guidelines using their plain meaning.” United States v. Anderson, 895 F.2d 641, 646 (9th Cir.1990) (quoting United States v. Restrepo, 884 F.2d 1294, 1296 (9th Cir.1989). U.S.S.G. § 3Bl.l(c) provides that, based on the defendant’s role in the offense, the offense level should be increased by two levels “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than [an activity that involved five or more participants].” See Anderson, 895 F.2d at 644 ; see also United States v. Carvajal, 905 F.2d 1292, 1294-95 (9th Cir.1990).

The Guidelines do not define “manager,” but Webster says that a manager is “one who has the conduct or direction of anything; as, the manager of a railroad; the manager of a lottery.” Webster’s New Universal Unabridged Dictionary (2d Ed.). The Oxford American Dictionary similarly defines manager as “a person who is in charge of the affairs of a business etc.” Random House is to the same effect: to manage is “to have charge of or responsibility…

Santiago Mares-Molina (“Mares”) appeals from his sentence imposed under the sentencing guidelines following a plea of guilty to conspiracy to import cocaine in violation of 21 U.S.C. §§ 952 , 960, and 963. Mares argues that the district court’s finding that he was “an organizer, leader, manager, or supervisor in [the] criminal activity” pursuant to guideline section 3Bl.l(c) is not supported by the record. We agree, and thus vacate the two-point upward adjustment in offense level and reduce Mares’ sentence to twelve months, the maximum allowable under the guidelines.

FACTS AND PROCEEDINGS

On April 20, 1989, United States Operation Alliance Agents received information from the Mexican Federal Judicial Police that they had arrested Rigoberto Perez-Morales for the murder of a suspected narcotics trafficker in Mexico and had seized $24,000 and approximately seven kilograms of cocaine. During their investigation, the agents learned that Perez and others, including a man named Ruben Zazueta-Ruiz, were smuggling cocaine into the United States in the tires of large diesel tractor/trailers. They learned that once over the border, the tractor/trailers were taken to Mares Trucking Co.…