USA v. Roberto Jimenez-Delgado

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14156
Non-Argument Calendar
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D.C. Docket No. 8:12-cr-00075-JSM-AEP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO JIMENEZ-DELGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 10, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Roberto Jimenez-Delgado appeals his sentence of 33 months of
imprisonment, following his pleas of guilty to conspiring to transport illegal aliens,
8 U.S.C. § 1324(a)(1)(A)(v)(1), transporting illegal aliens, id. § 1324(a)(1)(A)(ii),
(B)(1), 18 U.S.C. § 2, reentering the United States illegally, 8 U.S.C. § 1326(a),
and entering the United States at a time or place other than as designated by
immigration officials, id. §§ 1325(a)(1), 1329. Jimenez-Delgado challenges the
enhancement of his sentence for managing five or more people in the conspiracy.
We affirm.
The district court did not clearly err by enhancing Jimenez-Delgado’s
sentence for his managerial role in the conspiracy to transport illegal aliens. A
defendant is subject to a three-level increase in his offense level if he is a “manager
or supervisor (but not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive.” United States Sentencing
Guidelines Manual § 3B1.1(b) (Nov. 2011). Evidence presented at Jimenez-
Delgado’s change of plea and sentencing hearings established that he exercised
control and decision-making authority over at least seven participants in the
Calixto alien smuggling organization; transported aliens after they were smuggled
into the United States; and recruited participants to join the organization. See id.
cmt. n.4. During his change of plea hearing, Jimenez-Delgado admitted to
managing the transportation of illegal aliens from Alabama to Florida; directing his
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wife to verify with him what fee to collect from each alien; attempting to recruit
his neighbor’s husband to drive vehicles for the organization; and using the
neighbor instead to transport the aliens. See United States v. Wilson, 884 F.2d
1355, 1356 (11th Cir. 1989) (“The findings of fact of the sentencing court may be
based on . . . facts admitted by a defendant’s plea of guilty . . . or evidence
presented at the sentencing hearing.”). At the sentencing hearing, Robert Vadasz,
an agent of the United States Border Patrol, identified by name seven participants
whom Jimenez-Delgado supervised in the organization; recounted statements made
by Jimenez-Delgado’s wife and neighbor that he coordinated the destinations and
routes of the drivers and directed what fee to collect from the aliens and where to
deliver the proceeds; and testified that Jimenez-Delgado relocated a third
participant in his “transportation cell” to Arizona to lengthen the route for his
transportation cell and “make extra money per alien.” Jimenez-Delgado argues,
for the first time on appeal, that the district court should not have relied on Agent
Vadasz’s hearsay testimony “about things Mr. Jimenez-Delgado allegedly said to
third-parties” in the presence of his wife and neighbor, but the agent’s testimony
has “sufficient indicia of reliability” to be considered at sentencing, United States
v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). Agent Vadasz interviewed
Jimenez-Delgado’s wife and neighbor and their accounts were consistent with
Jimenez-Delgado’s admissions about his role in the smuggling organization.
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We AFFIRM Jimenez-Delgado’s sentence.
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