921 F.3d 942
10th Cir.2019Background
- Lozano pled guilty to conspiracy to distribute and possess with intent to distribute cocaine (21 U.S.C. §§ 846, 841), admitting the conspiracy involved between 50–150 kg of cocaine; sentenced to 180 months and 5 years supervised release.
- DEA surveillance and seized notebooks tied recurring multi-kilogram loads to a Thornton, Colorado rental at 9544 Josephine St. (the Josephine house), leased and utilities paid by Lozano though he did not always reside there.
- Co-conspirators Keneth Molina-Villalobos and Jose Lara-Gallegos handled day-to-day Colorado operations, used vehicles registered to Lozano, communicated with him about loads, money, and assignments, and admitted unloading drugs at the Josephine house.
- Two major transactions (the "Mota" and "First Neufeld" loads) used the Josephine house to unload cocaine and package bulk currency; agents found ledgers and records at a co-conspirator’s later residence showing large payments to Lozano.
- At sentencing the district court applied: (1) a two-level U.S.S.G. §2D1.1(b)(12) enhancement for maintaining a premises for drug distribution, and (2) a three-level U.S.S.G. §3B1.1(b) aggravated-role enhancement for managing/supervising co-conspirators; Lozano appealed both enhancements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2D1.1(b)(12) stash-house enhancement applies | Lozano: Josephine house was primarily a residence maintained by Lara-Gallegos; Lozano hosted family and sheltered an undocumented relative, not to facilitate trafficking | Government: Lozano leased/paid for the house, controlled access, provided vehicles, and the house was used repeatedly for large kilogram loads—drug distribution was a primary use | Affirmed: district court did not clearly err — totality of circumstances supports enhancement |
| Whether §3B1.1(b) three-level manager/supervisor role applies | Lozano: He was a middleman who did not manage or supervise co-conspirators; provided means for non-managerial reasons (familial/immigration) | Government: Lozano gave direction, received reports, corrected accounts, provided means and received outsized payouts—exercised decision-making/control over at least two subordinates | Affirmed: district court properly found by preponderance that Lozano supervised/managed co-conspirators |
Key Cases Cited
- United States v. Eaton, 260 F.3d 1232 (10th Cir. 2001) (standard of review for guideline application; deference to district court)
- United States v. Zar, 790 F.3d 1036 (10th Cir. 2015) (clear-error standard for factual findings)
- United States v. Gambino-Zavala, 539 F.3d 1221 (10th Cir. 2008) (government bears preponderance burden for §2D1.1(b)(12))
- United States v. Murphy, 901 F.3d 1185 (10th Cir. 2018) (§2D1.1(b)(12) commentary: primary use inquiry, totality of circumstances, frequency/quantity sliding scale)
- United States v. Gonzales Edeza, 359 F.3d 1246 (10th Cir. 2004) (managing/supervising one co-conspirator suffices for §3B1.1(b))
- United States v. Backas, 901 F.2d 1528 (10th Cir. 1990) (any degree of direction or control can establish supervisor status)
- Anderson v. Bessemer City, 470 U.S. 564 (U.S. 1985) (appellate courts must defer to a district court’s plausible account of the evidence)