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United States v. Ortiz

filed: June 29, 1989.

UNITED STATES OF AMERICA
v.
ANGEL ORTIZ, APPELLANT



Appeal from the United States District of Pennsylvania, D.C. Crim. No. 88-00352-01.

Mansmann, Scirica and Seitz, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge

Angel Ortiz appeals from a judgment of sentence. The district court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

I.

Angel Ortiz was charged in a five-count indictment with various offenses related to a single cocaine distribution that occurred on August 3, 1988. He pled guilty to four counts, and subsequently the prosecutor moved to dismiss the final count. The district judge applied the sentencing guidelines and imposed a sentence of 235 months (19 years, 7 months). Ortiz argues that the district court misapplied the sentencing guidelines.

II.

The "Aggravating Role" guidelines instruct the district court that "[if] the defendant was an organizer or leader of a criminal activity that involved five or more participants . . . increase [the offense level] by four levels." Sentencing Guidelines § 3B1.1(a). They further instruct that "[if] the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants . . . increase [the offense level] by three levels." Sentencing Guidelines § 3B1.1(b). The district court found that Ortiz was an "organizer or leader" and increased his offense level by four levels. Ortiz argues that, given its factual findings, the district court should not have found him to be an organizer or leader under the guidelines, but merely a "manager or supervisor." He does not dispute that there were five or more persons involved in the criminal activity.

A.

We first address the appropriate standard of review, a question not squarely decided before in this Circuit. Compare United States v. Ofchinick, 877 F.2d 251 (3d Cir. 1989). As amended on November 18, 1988, title 18 U.S.C. Section 3742(e) states that "[the] court of appeals . . . shall give due deference to the district court's application of the guidelines to the facts." We are required to determine the meaning of this "due deference" standard.*fn1

The legislative history of the amendment adopting the due deference standard states: "[this] standard is intended to give the court of appeals flexibility in reviewing an application of a guideline standard that involves some subjectivity. The deference due a district court's determination will depend upon the relationship of the facts found to the guidelines standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely." 134 Cong.Rec. H11257 (daily ed. Oct. 21, 1988) (statement of Rep. Conyers) (Section-By-Section Analysis of Sentencing Amendments included in Title VII, Subtitle C of the Anti-Drug Abuse Act of 1988).

As two courts of appeals have recognized, the application of the guidelines can present a mixed question of law and fact. See United States v. Daughtrey, 874 F.2d 213, --- (4th Cir. 1989); United States v. Wright, 873 F.2d 437 (1st Cir. 1989). That is certainly the case with the applications at issue here. The standard of review articulated in the legislative history is close -- if not identical -- to "the standard courts have long employed when reviewing mixed questions of fact and law," Daughtrey, 874 F.2d at /--. In reviewing a district court's determination where a mixed question "is 'essentially factual,' . . . the concerns of judicial administration will favor the district court, and the district court's determinations should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo." United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 288, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982)), cert. denied, 469 U.S. 824 (1984).

Because we conclude that the question of a defendant's aggravating role in this crime is "essentially factual," we will reverse the district court in this case only if its conclusion is clearly erroneous. We need not resolve precisely how closely a district court's determination must be scrutinized as it approaches the purely "legal." It suffices to say that given the statutory language we are to apply, ...


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