United States v. Warren
United States v. Warren
Opinion of the Court
MEMORANDUM
Defendant Demetrius Dmiral Warren challenges the district court’s imposition of an 121-month sentence for conspiracy to commit firearms trafficking and related
Warren first argues that the imposition of consecutive sentences for the crime of making a false statement during a firearms transaction and the crime of aggravated identity theft pursuant to 18 U.S.C. Section 922(a)(2) and 18 U.S.C. Section 1028A(a)(l) violated the Double Jeopardy Clause of the Fifth Amendment because the sentences punished the same conduct. We review alleged violations of the Double Jeopardy Clause de novo. See United States v. Byrne, 203 F.3d 671, 673 (9th Cir. 2000). “Where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct ..., a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); see also United States v. Davenport, 519 F.3d 940, 946 (9th Cir. 2008). In this case, it is clear from the face of Section 1028A that Congress intended and has specifically authorized cumulative punishment under Sections 922(a)(6) and 1028A(a)(l) for the offense conduct at issue. Therefore, Warren’s sentence does not violate the Double Jeopardy Clause.
Warren second argues that a four-level leader/organizer enhancement was erroneously applied to his sentence. We review determinations of fact under the Sentencing Guidelines for clear error. United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008). Application of the leader/organizer enhancement must be supported by a preponderance of the evidence. United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000). Defendant does not clearly challenge and we find the evidence plainly supports that Warren played a leader/organizer role in the trafficking conspiracy. The record shows Warren devised the trafficking scheme, personally directed the illegal purchase of firearms using straw purchasers recruited by him, and engaged in the firearms’ transportation to and sale in California with Mam-ice Jowers and Alexis Evans. See U.S.S.G. § 3B1.1, cmt. 4; Rivera, 527 F.3d at 908-09 (finding defendant’s directing of a participant to retrieve drugs for him and of another participant to serve as straw owner of a vehicle for him support a finding that he exercised authority over participants).
Warren asserts that the enhancement should nonetheless not be applied because there is no evidence demonstrating that there were five participants involved in Warren’s offense conduct as is required for a four-level leader/organizer enhancement. U.S.S.G. § 3Bl.l(a). A participant is defined in the application notes to U.S.S.G. § 3B1.1 as “a person who is criminally responsible for the commission of the offense, but need not have been convicted.” U.S.S.G. § 3B1.1, cmt. 1. In applying U.S.S.G. § 3B1.1, the district court may look not only at the defendant’s role in the offense charged, but at all relevant conduct as defined in U.S.S.G. § 1B1.3. See United States v. Cyphers, 130 F.3d 1361, 1363 (9th Cir. 1997). Though the district court did not make a specific finding as to who the five participants in Warren’s offense conduct were, this is not fatal to application of the enhancement where evidence supports such a finding. See United States v. Munoz, 233 F.3d 1117, 1136 (9th Cir. 2000). Reviewing the record, we conclude that the district court did not clearly err in
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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