UNITED STATES of America, Appellee, v. Nelson SOLANO, Defendant, Carmen Cardoso, Defendant-Appellant, 402 F. App'x 569

Defendant-appellant Carmen Cardoso appeals from an Amended Judgment entered September 17, 2009 (Patterson, J.) sentencing her principally to 150 months’ imprisonment. Cardoso was found guilty following a jury trial for (1) conspiring to import cocaine and heroin, and (2) conspiring to distribute, and to possess with intent to distribute, cocaine and heroin. We assume the parties’ familiarity with the facts and procedural history of this case. On appeal, Cardoso argues that the district court erred when it did not estop the government from arguing that she was a supervisor or manager under

section 3B 1.1 of the Sentencing Guidelines. She contends that the government should have been estopped because it had taken the inconsistent position at her co-defendant Miguel Diaz’s sentencing that Diaz was not a supervisor or manager and was therefore eligible for the statutory safety valve under 18 U.S.C. § 3553(f). To the extent that such a claim is viable, Cardoso’s argument is meritless. To make out a judicial estoppel claim, a party must demonstrate, among other things, that the later position of the party it seeks to estop is “clearly inconsistent with its earlier position.” Zedner v.

United States, 547 U.S. 489, 504, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) (quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Here, there were two different defendants whose conduct differed significantly. Moreover, in the one scheme in which the two were co-conspirators, Car-doso directed Diaz. The government’s positions were not “clearly inconsistent.” See id. Therefore, the district court did not err in failing to estop the government from arguing that Cardoso’s sentence should be enhanced under U.S.S.G. § 3B1.1 due to her supervisory role.

We have reviewed Cardoso’s remaining arguments and conclude that they lack merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.