UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel CORTEZ-DIAZ, Defendant-Appellant.
No. 12-3219.
United States Court of Appeals, Tenth Circuit.
May 6, 2014.
741
“Whether a litigant qualifies as a ‘prevailing party’ under a fee-shifting statute such as
The judgment of the district court is accordingly affirmed.
Thomas M. Bradshaw, Van Osdol & Magruder, Kansas City, MO, for Defendant-Appellant.
Juan Manuel Cortez-Diaz, Leavenworth, KS, pro se.
Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
ORDER AND JUDGMENT *
GREGORY A. PHILLIPS, Circuit Judge.
After a nine-month investigation, law enforcement arrested Juan Manuel Cortez-Diaz with about two pounds of pure methamphetamine in his car and, soon after, seized about seven more pounds at his stash house. The evidence at trial showed that Cortez-Diaz ran a multi-state methamphetamine distribution network centered in Kansas City, Kansas, and based on this evidence the jury convicted him of various drug possession and distribution crimes.1 The weight and purity of the methamphetamine, combined with leadership-role and drug-house enhancements, led to an advisory guideline sentence of life imprisonment—which the district court imposed. Cortez-Diaz now challenges the procedural and substantive reasonableness of that sentence. We conclude that the district court committed no error, and we affirm.
BACKGROUND
Special Agent Matt Hall of Homeland Security Investigations2 (HSI) began investigating Cortez-Diaz after a confidential informant (CI) reported that Cortez-Diaz had recently arrived in Kansas City from California to set up a drug-distribution network.
On August 9, 2010, the CI bought methamphetamine from Cortez-Diaz at a local market. After providing the CI with $2,600 in buy-money, Agent Hall watched from a safe distance as Cortez-Diaz opened his trunk and the two men completed the exchange. Following routine controlled-buy procedures, the agents recovered the two ounces of purchased methamphetamine.3
On October 6, 2010, Agent Hall and the CI met with Cortez-Diaz and another associate, Martin Gonzalez. This meeting was set to continue discussing the possibility of Agent Hall‘s transporting drug money for Cortez-Diaz. Agent Hall arrived in a company van to make the story believable. Cortez-Diaz raised the possibility of using the van to take money to Oklahoma and to bring back more methamphetamine. During the meeting, Cortez-Diaz handed Agent Hall a shard of methamphetamine.4 Agent Hall understood that Cortez-Diaz was proving to him that he could obtain high-quality drugs.
On October 22, 2010, Agent Hall and the CI were again set to meet with Cortez-Diaz. Instead, Cortez-Diaz sent two other men, Martin Gonzalez and Alfredo Soto-Contreras, to explain that he couldn‘t make the meeting but to reset it for that afternoon. Later, Cortez-Diaz came with Oscar Sotello and apologized for missing the earlier meeting. He attributed his delay to law enforcement‘s possibly having seized a load of his organization‘s methamphetamine. Cortez-Diaz again expressed interest in using the parcel delivery company to run drug money to other cities but delayed making a final decision. Cortez-Diaz then showed Agent Hall an ounce of “good” methamphetamine and named a price—$1,300 for the ounce, or $18,500 for a pound. Agent Hall held the bagged methamphetamine and could see that it was very pure. Because he had no buy-funds, however, he declined to purchase and made an excuse that he couldn‘t be carrying methamphetamine in the company van.
On December 8, 2010, Agent Hall and the CI met again with Cortez-Diaz about transporting drug money and also to buy methamphetamine. At this meeting, Cortez-Diaz told Agent Hall that he‘d found
In late April 2011, HSI agents learned from a court-authorized wiretap that a man named Juan Razo may have been working as Cortez-Diaz‘s driver, taking drug money from Kansas City to California. In a series of monitored calls from May 13 to May 16, Razo told Cortez-Diaz that he was bringing nine cans or buckets of paint to Kansas City. The agents believed the “cans” or “buckets” referred to kilograms or pounds of methamphetamine. From the call, they knew that about half the total load was destined for an unknown person, “Guerillo.” During the calls, Cortez-Diaz directed Razo—he told him when to leave, some details about a stash house, that he could provide Razo with a place to sleep in Kansas City, and that he could avoid police detection by turning off his cell phone and using cruise control.
On May 16, 2011, once Razo arrived in Kansas City, he met with Cortez-Diaz at a flea market. HSI witnessed this meeting through covert surveillance of Cortez-Diaz. Cortez-Diaz then drove Razo to the stash house on Washington Avenue in Kansas City, Kansas. They stayed there about five minutes before Cortez-Diaz took Razo back to the flea market and returned to his apartment. Later that evening, Cortez-Diaz returned to the flea market, picked up Razo, and the two men returned to the stash house.
While at the house, Cortez-Diaz received a call from “Miguel” and arranged to sell him a pound of methamphetamine. Soon after the call, HSI agents saw Cortez-Diaz walk to the end of the driveway, pick up and empty a shoebox from a trash pile, and return inside. A few minutes later, Cortez-Diaz left the stash house, put the shoebox inside the trunk of a car, and drove away. HSI called local police to have them stop Cortez-Diaz, which they did after seeing him commit a traffic violation. During the stop, Cortez-Diaz consented to a search of the car. Inside the trunk, the officers found nearly two pounds (891.9 grams) of methamphetamine in the shoebox; its purity was 99.7%.
HSI agents obtained a search warrant for the stash house. Inside they found Razo, over five and half pounds (2,583 grams) of methamphetamine (99.1% pure) in one container, another pound (488.3 grams) of methamphetamine (99.5% pure) in a second container, a digital scale, and drug-packaging material. There was no furniture, and it appeared that no one lived at the house.
After his arrest, Razo waived his right to remain silent and spoke with the agents. He said that he‘d made six trips for a named drug organization, transporting methamphetamine and cash. Consistent with the recorded calls, he said that in April 2011 he‘d previously delivered a load of methamphetamine to Kansas City as organized by Cortez-Diaz and Martin Gonzalez. Razo explained that he then returned to Kansas City to collect $80,000 in methamphetamine sales proceeds. He also told the agents that Martin Gonzalez had loaded the $80,000 into his vehicle. For the current trip, he said half of the drugs had gone to Cortez-Diaz and the other half had gone to another person. Razo told the agents that seven pounds of
A grand jury indicted Cortez-Diaz on five counts of methamphetamine trafficking. The jury convicted on all counts. On its special verdict form, the jury specifically found that Cortez-Diaz had possessed both the methamphetamine seized in the stash house and in his car.
Before sentencing, the United States Probation Office for the District of Kansas prepared a Presentence Investigation Report (PSR). The PSR detailed the factual background of the offenses and incorporated Razo‘s post-arrest statements. It included a base offense level of 38 given Cortez-Diaz‘s responsibility for 7.07 kilograms (over fifteen pounds) of methamphetamine—the sum total of all the actual methamphetamine involved in Cortez-Diaz‘s relevant conduct.6 The PSR recommended a two-level enhancement for maintaining a stash house and a four-level enhancement for Cortez-Diaz‘s leadership of a criminal activity with five or more participants.7 See
Cortez-Diaz argued that he shouldn‘t be found responsible for the methamphetamine seized from the stash house. He also objected to the PSR‘s recommended enhancements for maintaining a stash house and for his leadership role. He requested a downward variance based on mitigating factors such as his age, familial situation, and lack of criminal history.8 After hearing argument, the district court imposed the recommended base offense level of 38 and six additional levels for the two disputed enhancements. After considering the
DISCUSSION
“On appeal, the district court‘s sentence is reviewed for reasonableness under an abuse-of-discretion standard.” Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2080, 186 L.Ed.2d 84 (2013). Sentencing review proceeds in two steps. First, we address whether the court com-
Second, we address substantive reasonableness, which we review for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence must fall within the range of permissible choice. United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.2007). We may assume a within-Guidelines sentence is reasonable, but we aren‘t required to do so. Peugh, 133 S.Ct. at 2080.
1. Procedural Challenges
Procedural error “relates to the method by which the sentence is calculated.” Lente, 647 F.3d at 1030 (internal quotation marks omitted). The Supreme Court recognizes at least five types of procedural error: (1) improperly calculating the Guidelines range; (2) adhering to the Guidelines as though they are mandatory; (3) failing to consider the
Cortez-Diaz first claims the district court miscalculated his sentence by including within his relevant conduct too much actual methamphetamine and by applying two enhancements—one for maintaining a stash house and another for his aggravating role in the offense (as a leader). In addition, he argues that the district court procedurally erred by inadequately explaining the basis for the sentence.
Drug Quantity. In a jointly undertaken criminal activity involving controlled substances, a defendant is responsible for all drugs with which he was directly involved or that were reasonably foreseeable within the scope of the joint-criminal activity.
This argument rests upon two mistaken premises—first, that a defendant is only accountable under
In this case, the district court relied on evidence presented at trial as well as in the PSR in concluding that Cortez-Diaz was accountable for the stash-house drugs. We find no error as this conclusion was well supported. After all, the jury found by special verdict that Cortez-Diaz possessed the methamphetamine in the house. Regardless of whether actual possession is dispositive under
Yet the district court didn‘t just rely on the jury‘s special verdict, but instead found that trial evidence linked Cortez-Diaz to the stash house. The court pointed out that Cortez-Diaz discussed the house on the phone with Razo. From the intercepted calls, we know that it is indeed true that Cortez-Diaz gave Razo directions to the house before Razo arrived in Kansas City. We also can glean from the calls that Cortez-Diaz offered to arrange for someone in his organization to meet Razo when he arrived and take him to the stash house.10 Further, the court noted Cortez-Diaz‘s presence at the stash house on two occasions. As HSI observed, Cortez-Diaz twice took Razo to the stash house where the methamphetamine was later found and went inside with him. And, before leaving the house with the shoebox, we know from the calls that Cortez-Diaz arranged a methamphetamine sale from the house. All of these facts support Cortez-Diaz‘s connection to the stash house and, by extension, his direct involvement with the methamphetamine found there. See
Cortez-Diaz doesn‘t address this strong evidence against him, but he does argue that the district court erred in relying on the single unsupported PSR statement that “Cortez and Razo both pulled bags from the trunk of the vehicle” before entering the stash house. R. vol. III, at 10. This was just one point the court made in reaching its ultimate conclusion that Cortez-Diaz was accountable for the stash-house drugs. But even so, a court is entitled to rely on uncontested facts within the PSR. Fed.R.Crim.P. 32(i)(3)(A). Since Cortez-Diaz never contested the accuracy of this specific fact, or any specific fact, the district court was free to accept it as uncontroverted and consider it during sentencing. See United States v. Warren, 737 F.3d 1278, 1285-86 (10th Cir.2013) (“Rule 32(i)(3)(B) applies only if facts in the PSR are disputed by specific objection.“).
In addition, even had Cortez-Diaz neither carried the methamphetamine into the house nor aided and abetted Razo in doing so, his relevant conduct would still include that methamphetamine. The district court also based its finding on the fact that Cortez-Diaz and Razo worked together, a finding that was well supported by the wiretap conversations. Indeed, since Cortez-Diaz and Razo were engaged in “jointly undertaken criminal activity” within the meaning of
Stash house. The Guidelines provide for a two-level enhancement for “main-tain[ing] a premises for the purpose of manufacturing or distributing a controlled substance.”
Cortez-Diaz contends that the government failed to show he maintained a stash house. He claims that his brief presence at the house and his vague phone calls with Razo are insufficient to support the enhancement. By his characterization, he was just a casual visitor to the stash house with no substantial connection to it. See United States v. Flores-Olague, 717 F.3d 526, 532 (7th Cir.2013) (“[A]lthough ownership is not dispositive of whether a defendant maintains a stash house, the statute contemplates a defendant who is more than a casual visitor.” (internal quotation marks omitted)).
Cortez-Diaz was anything but a casual visitor. After all, as the district court recognized, he left the house with a shoebox containing 891.9 grams of methamphetamine. Further, trial evidence supported the district court‘s finding that Cortez-Diaz controlled access to the stash house. As the district court observed, Cortez-Diaz “directed Juan Razo to go to the house, to lock himself in, and wait for [him].” R. vol. II, at 785. Cortez-Diaz then twice took Razo to and from the house. The court also found it significant that the house had no furniture. Indeed, its only noted contents were seven pounds of methamphetamine, drug packaging materials, a digital scale, and Razo‘s luggage. All told, this information is more than enough to establish that Cortez-Diaz maintained the house to store or distribute a controlled substance.
Organizer or leader of criminal activity with five or more participants. A district court may impose a four-level enhancement “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants.”
To decide whether the defendant was a leader or organizer, the Guidelines commentary instructs us to consider various factors: decision-making authority, participation in the offense, recruitment of accomplices, claiming a larger share of the crime proceeds, the amount of participation in planning or organizing the offense, the nature and scope of the illegal
In this case, the district court found that Cortez-Diaz was a leader of a particular methamphetamine ring in Kansas City. Cortez-Diaz disputes that he qualified as a leader and that five or more people participated in the criminal activity. He challenges his leadership role, saying that the trial evidence doesn‘t prove by a preponderance that he controlled Razo, recruited accomplices, or claimed a larger share of the proceeds. Additionally, Cortez-Diaz claims that trial evidence only supports a finding that Razo was a participant in the criminal activity.
Again, Cortez-Diaz mistakenly assumes that trial evidence is needed to support Guidelines enhancements. Yet as stated, the trial court is free to look outside the trial record for reliable evidence. See Ruby, 706 F.3d at 1227. Here for instance, the district court was free to consider Razo‘s post-arrest statements in the PSR, even though Razo didn‘t testify at trial. See United States v. Cook, 550 F.3d 1292, 1296 (10th Cir.2008) (“[H]earsay statements may be considered at sentencing if they bear some minimal indicia of reliability.” (internal quotation marks omitted)).
Regardless, the trial evidence also supported the district court‘s finding that Cortez-Diaz “had access to and control over large amounts of drug proceeds, which would indicate ... a leadership position.” R. vol. II, at 787. Agent Hall testified that Cortez-Diaz discussed and expressed interest in his offer to transport large amounts of Cortez-Diaz‘s drug proceeds on three separate occasions. The taped phone calls also showed that Cortez-Diaz controlled the shipment of proceeds and drugs from California and the subsequent sale of those drugs. After all, Cortez-Diaz told Razo when to begin his trip; he met him at an agreed location and took him to the stash house; and he left the house alone with two of the nine pounds of methamphetamine to sell after taking a call from a buyer. Agent Hall also testified that he believed Cortez-Diaz was a high-level drug dealer based on the nearly pure methamphetamine he supplied, his knowledge of seized drug shipments, and an analysis of his phone records. In fact, Agent Hall testified that Cortez-Diaz was a regional cell head of a methamphetamine distribution network.
Further, the district court found that Cortez-Diaz directed Razo‘s activities. Indeed, the trial evidence shows that Cortez-Diaz told Razo when to sleep, how to drive while carrying the shipment, and how to avoid police tracking by turning off his cellphone. Additionally, the PSR specifically states that “Razo was given directions by Cortez[-Diaz].” R. vol. III, at 11. Also, Cortez-Diaz had control over Martin Gonzalez and Alfredo Soto Contreras, as shown by his sending them to meet with Agent Hall.
The district court‘s finding that there were at least five other participants in the criminal activity is also well supported. At trial, the government‘s evidence implicated Alfredo Soto-Contreras, Martin Gonzalez, “Miguel,” “Guerillo,” and Juan
Failure to adequately explain the sentence. “When a district court imposes a within-Guidelines sentence, the court must provide only a general statement of its reasons, and need not explicitly refer to either the [
Here, the district court expressly considered the
2. Substantive Challenges
To determine a sentence‘s substantive reasonableness we consider its length given the case‘s circumstances and the
First, we may presume that within-Guidelines sentences are reasonable—and we do so here. Peugh, 133 S.Ct. at 2080. Despite Cortez-Diaz‘s arguments in favor of leniency, which the district court addressed, the court ultimately concluded that the specifics of the crime weighed in favor of the Guidelines recommendation. Considering our deferential standard on review and the well-supported facts found by the district court regarding the amount of drugs involved, the use of the stash house, and Cortez-Diaz‘s leadership role, we find no abuse of discretion.15
Second, there is no doubt that a life sentence is a hefty penalty. But that is the Guidelines recommendation based on the policy that the Sentencing Commission saw fit to incorporate. Despite Cortez-Diaz‘s objection, “a sentence is not rendered unreasonable merely because of a district court‘s refusal to deviate from the advisory guideline range based on disagreements with the policies underlying a particular Guideline provision.” Wilken, 498 F.3d at 1172 (internal quotation marks omitted). The district court was well with-in its discretion to rely on the Guidelines recommendation here, notwithstanding Cortez-Diaz‘s challenges to the policies underlying that recommendation.
CONCLUSION
We conclude that the sentence was procedurally and substantively reasonable and therefore affirm.