United States of America v. Nicholas Valenzuela

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3468
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UNITED STATES OF AMERICA
v.
NICHOLAS VALENZUELA
Appellant,
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Criminal No. 01-076-002)
District Judge: The Honorable Gregory M. Sleet
___________
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2003
BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,* Senior District Judge.
(Filed: September 5, 2003)
* Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.

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___________
OPINION OF THE COURT
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IRENAS, Senior District Judge.
Presently before the Court is Nicholas Valenzuela’s appeal from a final judgment of
the District Court. First, Valenzuela claims that the District Court erred by considering the
statements of cooperating co-defendants as evidence of Valenzuela’s managerial role in the
offense. Second, Valenzuela claims that the District Court erred when it decided at the
sentencing hearing to make an adjustment for managing a crime involving more than five
persons. Under U.S.S.G. § 3B1.1(b), the District Court adjusted the Defendant’s offense
level by three points.
I.
On September 13, 2001, Valenzuela, Fernando Haro, and Michael Torres were
arrested after U.S. Customs agents intercepted a trailer containing a large shipment of
marijuana hidden in clay pots at the border in Laredo, Texas, and then proceeded with a
controlled delivery of the shipment to a warehouse in Wilmington, Delaware. Shortly after
the delivery to the warehouse, Valenzuela arrived with two other individuals, including co-
defendant Haro.
The pre-sentence report placed Valenzuela at a Total Offense Level of 31 and a
Criminal History Category of 1, for which the guideline range for imprisonment is 108 to

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1 The report is referring to U.S.S.G. § 3B1.1(c).
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135 months. The range was adjusted to between 120 to 135 months based on a statutory
mandatory minimum of 120 months. The total offense level of 31 included a two level
upward adjustment for Role in the Offense. The report explained the two point adjustment
in the following excerpt:
Guideline Section 3B1.11 instructs us to increase the offense level if the
defendant was the organizer, leader, manager, or supervisor of the offense.
Defendant Valenzuela’s role in the conspiracy was that of an organizer or
manager. He is the only defendant who traveled to Mexico to facilitate the
importation of marijuana, while defendant Torres assumed an organizing or
managerial role by making the arrangements for a storage location in
Delaware. Defendant Valenzuela’s managerial role in the offense is
demonstrated by his recruitment of co-defendant Haro to assist with
unloading the two shipments, and is also demonstrated in the fact that he did
not personally participate in unloading the truck. (Pre-sentencing report, 9)
Valenzuela objected to the two point increase and the characterization of his role as a
manager or supervisor in an addendum to the pre-sentence report. In the same addendum,
the government also indicated that it intended to oppose the Defendant’s objection. The
government asserted that during Valenzuela’s second proffer, he admitted that he was the
leader of the conspiracy, that he initiated the scheme to import marijuana from Mexico
based on his contacts there, and that he recruited co-defendant Haro to join the conspiracy.
On March 25, 2002, Valenzuela pleaded guilty to one count of conspiracy to
possess marijuana with the intent to distribute and one count of importation of marijuana.
At his sentencing hearing, Valenzuela confirmed during cross-examination that he once
went to Mexico to arrange for the importation of marijuana, that he was in control of the

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2 The District Court was not departing from the Sentencing Guidelines, but was instead only
adjusting the Defendant’s offense level under U.S.S.G. § 3B1.1(b).
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marijuana shipments after they entered the United States, and that he had possibly recruited
Haro into the drug scheme. After Valenzuela’s testimony, the government sought to
increase the Appellant’s base level by three points, arguing that, under U.S.S.G. § 3B1.1(b),
he was a manager or supervisor and the criminal activity involved five or more participants.
The District Court adjusted the offense level as requested by the government, noting
that even if Valenzuela did not recruit Haro and Torres and even if his co-defendants were
his business partners as he alleged, the evidence supported his managerial/supervisory role
in the scheme.2 The District Court also agreed with the government that “the defendant’s
proffer itself confirms the individual proffers of Torres and Haro which probably could not
stand on their own. Therefore, the Court concludes Mr. Valenzuela was a manager or
organizer.” (App. 183-85). Valenzuela’s final offense level was 32 and his criminal history
category was I, yielding a sentencing range of 121-151 months. He was sentenced to 128
months’ incarceration, five years supervised release, and a $200 special assessment.
II.
A sentencing court considering an adjustment of the offense level bases its
determination on the preponderance of the evidence with which it is presented. United
States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989). However, in the extreme context
where the sentencing hearing functions “as the tail that wags the dog of the substantive

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offense,” the fact finding underlying that departure must be established at least by clear and
convincing evidence. U.S. v. Kikumura, 918 F.2d 1084, 1101 (3d Cir. 1990) (clear and
convincing standard is appropriate when dealing with evidence that would increase
defendant’s sentence from approximately 30 months to 30 years, the equivalent of a 22
level increase in offense level). Information used as a basis for sentencing under the
Guidelines must also have a “sufficient indicia of reliability to support its probable
accuracy.” U.S. v. Miele, 989 F.2d 659, 664 (3d Cir. 1993) (estimate of drug quantity by
addict-informant with impaired memory did not have indicia of reliability necessary to
attribute that drug quantity to defendant when determining base offense level); see U.S.S.G.
§ 6A1.3.
Rulings on the admission of evidence are generally reviewable for abuse of
discretion. U.S. v. Serafini, 233 F.3d 758, 768 (3d Cir. 2000); U.S. v. Gatto, 995 F.2d
449, 453 (3d Cir. 1993); U.S. v. Leo, 941 F.2d 181, 188 (3d Cir. 1991). The court of
appeals shall give due regard to the opportunity of the district court to judge the credibility
of the witnesses, shall accept the findings of fact of the district court unless they are
clearly erroneous, and shall give due deference to the district court's application of the
guidelines to the facts. U.S. v. McDowell 888 F.2d 285, 291-92 (3d Cir. 1989); see 18
U.S.C.A. §§ 3742(e). The court of appeals should affirm the trial court’s determination
unless it finds that the trial court acted arbitrarily or irrationally. Government of Virgin
Islands v. Albert, 241 F.3d 344, 347 (3d Cir. 2001); e.g. United States v. Universal
Rehabilitation Servs., 205 F.3d 657, 669 (3d Cir. 2000).

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Appellant Valenzuela relies on Kikumura to argue that a higher evidentiary standard
should have been applied by the District Court to his co-defendants’ proffer statements
since they were relied upon in making a significant departure from the sentencing
guidelines. Valenzuela further argues that Haro’s and Torres’ proffer statements failed to
meet the sufficient indicia of reliability standard under U.S.S.G. § 6A1.3(a), and
therefore should not have been relied upon by the District Court in deciding his sentence.
The facts in this case are not comparable to those in Kikumura, where the clear and
convincing evidentiary standard was warranted because the trial court added 30 years, or
almost a 22 level increase, based on the statement of an unidentified confidential
informant. In the instant case the co-defendants’ proffers were only part of the evidence
relied upon by the trial court. Furthermore, the trial court only made a three level
adjustment, rather than a complete and total departure from the initial base offense level.
The sentencing enhancements applied in this case were not so severe as to warrant a
heightened evidentiary standard and the District Court was correct in evaluating the co-
defendants’ proffers and other evidence under the preponderance of the evidence standard.
Valenzuela provides no support for the argument that testimony by co-defendants,
given without any evidence of personal gain or under an agreement with the government, is
per se prejudicial and lacking sufficient reliability. Valenzuela relies on Miele to argue
that Haro’s and Torres’ proffer statements lack a sufficient indicia of reliability. However,
Haro’s and Torres’ proffer statements are not analogous to the glaringly unreliable
testimony in Miele, where the recommendation for a greater sentence was based almost

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completely on an out of court statement, later contradicted under oath, by an addict-
informant with an impaired memory. Miele, 989 F.2d at 660. In the instant case the
District Court did not rely exclusively on Haro’s and Torres’ proffer statements in
determining that Valenzuela played a managerial role in the crime. As the District Court
noted, the co-defendants’ proffer statements were corroborated by Valenzuela’s own
testimony, and there was additional evidence of Valenzuela’s managerial role.
We do not find the abuse of discretion or clear error necessary to reverse the
District Court’s decision to include the proffer statements of Haro and Torres in its
assessment of Valenzuela’s role in the crime. Not only did Haro’s and Torres’ statements
corroborate each other, but Valenzuela’s own testimony corroborated the co-defendants’
statements that were relevant to his sentencing increase. In determining whether
Valenzuela assumed a managerial or supervisory role, the trial court focused on the
significance of Valenzuela’s own testimony as well as other evidence, and acknowledged
that the proffer statements of co-defendants Haro and Torres alone could not have
supported an upward departure in Valenzuela’s sentence. We conclude that the trial court
did not abuse its discretion or exhibit clear error in finding that the preponderance of the
evidence supported a three point upward adjustment to Valenzuela’s offense level for
supervising or managing a criminal activity involving five or more participants.
III.
Before a district court can upwardly depart from the applicable Guidelines range for

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reasons not identified as grounds for such departure in the pre-sentence report, Fed. R.
Crim. P. 32(h) requires that the court give the parties reasonable notice that it is
contemplating such a ruling, specifically identifying the ground for the departure. Burns v.
U.S., 501 U.S. 129, 129 (1991); see U.S.S.G. § 6A1.2, Note 1. However, the District
Court in this case did not depart from the Guidelines, but instead made an adjustment, based
partly on the pre-sentence report. Counsel for the defendant and the government must be
provided with an "opportunity to comment" at the sentencing hearing on the information and
conclusions in the pre-sentence report and "other matters relating to the appropriate
sentence.” U.S. v. Nappi, 243 F.3d 758, 763 (3d Cir. 2001) (quoting Fed. R. Crim. P.
32(c)(1)).
The Appellant cannot say that he was unaware that § 3B1.1 would be an issue at
sentencing. In the pre-sentence report that specific section of the Guidelines was
identified as a basis for adjustment. While the specific issue of the Defendant receiving an
adjustment for supervising or managing a criminal activity involving five or more people
was not in the report, the use of § 3B1.1 was identified and the Defendant had more than
enough advance notice that § 3B1.1 would be an issue at sentencing.
Even if the Appellant is correct and there was not adequate notice, a violation of the
Rule 32 notice requirement is subject to harmless error analysis. Nappi, 243 F.3d at 770
(violation of a defendant’s right to advance notice of the information upon which he or she
is to be sentenced does not create structural error). The relevant inquiry is not whether the
court would have found the defendant eligible for the enhancement had it not considered

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the disputed evidence, but whether defendant would have been found eligible for that
enhancement had the district court given counsel prior warning that it would be considering
the evidence and afforded defense counsel sufficient time to mount a meaningful challenge
to that evidence. U.S. v. Reynoso, 254 F.3d 467, 475 (3d Cir. 2001) (trial court’s violation
of the Rule 32 notice requirement did not affect defendant's substantial rights, so as to
merit plain error relief).
Neither the government nor Valenzuela received notice before the sentencing
hearing concerning the adjustment for managing a criminal offense involving five or more
people because the District Court was not contemplating such an enhancement before the
hearing. The adjustment was requested by the government only after Valenzuela’s
testimony during the hearing confirmed that the criminal offense involved at least five
people. The sentencing issue was simple and straightforward and did not involve additional
material that could have been relied upon by Valenzuela, making it reasonable for the
District Court to grant the enhancement with minimal notice.
Valenzuela does not argue that with more time he would have been able to refute
evidence that the crime involved five or more people. More importantly, Valenzuela was
given the requisite opportunity to comment on the enhancement at the hearing, and he was
given advance notice that § 3B1.1 would be an issue. Therefore, we do not find that the
District Court erred under the Rule 32 notice requirement, and, even if it did, such error in
the instant case was harmless.

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IV.
For the reasons set forth above, the order of the District Court will be affirmed.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Josesph E. Irenas
Senior District Judge

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