United States of America v. John Doe

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN DOE,
Defendant-Appellant.
No. 13-10385
D.C. No.
1:08-cr-00254-LJO-1
ORDER AND
OPINION
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
Filed February 17, 2015
Before: Carlos T. Bea, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta

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UNITED STATES V. DOE 2
SUMMARY*
Criminal Law
The panel withdrew an opinion filed February 17, 2015,
and filed a new opinion affirming a criminal judgment in a
case in which the district court applied a sentence
enhancement pursuant to U.S.S.G. § 3B1.1(c).
The panel held 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 activity.
The panel held that the district court did not err in holding
that there was no discovery violation, and affirmed the
district court’s rejection of the defendant’s Brady claim.
The panel held that the district court did not clearly err in
determining that the defendant was an organizer for purposes
of § 3B1.1(c), that imposition of the § 3B1.1(c) enhancement
made him ineligible for “safety valve” relief pursuant to
18 U.S.C. § 3553(f)(4), and that the district court did not err
in denying the defendant a reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a).
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. DOE 3
COUNSEL
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.
ORDER
The opinion filed February 17, 2015 is hereby withdrawn.
An opinion will be filed in its place.
OPINION
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 not clearly err in
determining that Doe was an “organizer” for purposes of
§ 3B1.1(c) of the Sentencing Guidelines, where his role was
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).

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UNITED STATES V. DOE 4
“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
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

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UNITED STATES V. DOE 5
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 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.

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UNITED STATES V. DOE 6
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.
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.

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UNITED STATES V. DOE 7
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
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,

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UNITED STATES V. DOE 8
license plate numbers, or individuals,
provided or 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 and identified the types of documents likely to contain
that information. Id. at 1150. We also held that the requests

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UNITED STATES V. DOE 9
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 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.

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UNITED STATES V. DOE 10
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 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

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UNITED STATES V. DOE 11
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.
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).

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UNITED STATES V. DOE 12
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 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, provided or identified”
by Doe to the government, broadly requests all records in the
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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UNITED STATES V. DOE 13
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.
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

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UNITED STATES V. DOE 14
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:
(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

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UNITED STATES V. DOE 15
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. 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]

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UNITED STATES V. DOE 16
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 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
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).

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UNITED STATES V. DOE 17
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
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,’
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 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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UNITED STATES V. DOE 18
‘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.
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

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UNITED STATES V. DOE 19
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 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
criminal activity” (internal quotation marks omitted)); United States v.
Brown, 315 F.3d 929, 932 (8th Cir. 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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UNITED STATES V. DOE 20
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
(emphasis added) (quoting United States v. Ingham, 486 F.3d
1068, 1074 (9th Cir. 2007)). 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.
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 717–18 (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

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UNITED STATES V. DOE 21
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 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.

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UNITED STATES V. DOE 22
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 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 decided that

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UNITED STATES V. DOE 23
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 to show he accepted
responsibility for his offense, and it therefore did not err in its
denial of the downward adjustment.
AFFIRMED.
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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