United States v. Reyes-SotoUnited States v. Reyes-Soto
BRISCOE, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See
Anselmo Reyes-Soto was convicted of possession with intent to distribute 500 grams or more of methamphetamine, in violation of
I.
In April 2004, Drug Enforcement Administration (DEA) agents began an investigation of Pedro Ortiz-Barrios. Through a confidential informant, the DEA learned of Ortiz-Barrios’ involvement with cocaine and “ice” methamphetamine distribution activitiеs in the Los Angeles, California area. Eventually, Ortiz-Barrios agreed to sell ten pounds of methamphetamine to the confidential informant in Colorado. The confidential informant subsequently had two telephone conversations with Reyes-Soto conсerning the price of the methamphetamine. On September 7, 2004, in Denver, Colorado, DEA agents arrested Ortiz-Barrios, Reyes-Soto, and a third individual identified as Filemon Bustos-Medina, after the three men removed a large amount of methamphetamine from their Fоrd Explorer and attempted to sell the drugs to the confidential informant.
On November 17, 2004, a grand jury issued a superseding indictment charging Reyes-Soto with one count of conspiracy to possess with the intent to distribute a substance containing 500 grams or more of methаmphetamine, in violation of
As to the offense alleged in Count One of the Indictment, the government further alleges the following:
1. Specification One: Drug Quantity The defendants engaged in a conspiracy involving at least 1.5 kilograms or more of a mixture or substance containing a detectable amount of methamphetamine.
Vol. I, Doc. 41 (emphasis added).
On December 13, 2004, Reyes-Soto‘s case proceeded to jury trial on both counts. After the government presented its case in chief, the district court granted Reyes-Soto‘s motion for judgment of ac-
The presentencе report (PSR) recommended an offense level of 38 under the guidelines’ Drug Quantity Table. See U.S.S.G. § 2D1.1(c)(1) (providing for a base offense level of 38 for 1.5 kilograms or more of methamphetamine “ice“). Specifically, the PSR relied on a laboratory report from Reyes-Soto‘s trial that found that the substance seized when Reyes-Soto was arrested contained a net quantity of 4,356 grams of methamphetamine “ice.” The PSR also recommended a criminal history category I because Reyes-Soto did not have a prior criminal history. Based on an offense level of 38, and a criminal history category I, Reyes-Soto‘s guideline range was 235 to 293 months.
Reyes-Soto objected to the PSR, contending that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), there must be a jury finding regarding the quantity of methamphetamine “ice” he possessed, and therefore, the total offensе level should be 32 based on a conviction for possession of 500 grams of methamphetamine. See U.S.S.G. § 2D1.1(c)(4) (providing for a base offense level 32 for quantities of methamphetamine at least 500 grams but less than 1.5 kilograms). Additionally, Reyes-Soto argued that his rolе in the offense was minor and that he qualified for a safety valve reduction under U.S.S.G. § 5C1.2. Further, he argued that he was similarly situated to co-defendant Bustos-Medina, who was offered a plea bargain which would result in the government‘s recommendation of a sixty-month sentence.
At the sentencing hearing held on April 21, 2005, the district court rejected Reyes-Soto‘s argument under Blakely and Booker, concluding that under the remedial majority opinion in Booker, a judge may find facts by a preponderance of the evidence at sentencing provided that the guidelines are applied in an advisory manner. Suрp. Vol. I at 15-17. The court then set Reyes-Soto‘s base offense level at 38. The court reasoned that Reyes-Soto had not seriously disputed the laboratory report and evidence at trial that verified the net weight of the methamphetamine to bе 4,445 grams, with a purity level of 98%, for a total of 4,356 grams of methamphetamine “ice.” Id. The district court emphasized that it did not hesitate to reach this conclusion because the base offense level of 38 applied to any amount above 1.5 kilograms of methamphetamine ice, and the quantity at issue exceeded 1.5 kilograms by almost three times. Id. The district court also denied Reyes-Soto‘s arguments for a minor role adjustment and a safety valve adjustment. Id. Finally, the district court rejected Reyes-Soto‘s assеrtion that he was similarly situated to Bustos-Medina. The district court explained that the evidence showed that Reyes-Soto had a larger role in arranging the drug transaction, and the court further noted that it was not certain what sentence Bustos-Medina would reсeive because the court had not yet accepted Bustos-Medina‘s plea agreement.
The district court concluded that Reyes-Soto‘s guideline sentencing range was 235 to 293 months based on an offense level of 38 and a criminal history catеgory I. Id. After reciting the sentencing factors set forth in
Reyes-Soto challenges the reasonableness of his sentence. For sentences imposed after Booker our review is for “reasonableness,” and we look to the factors enumerated in
First, Reyes-Soto contends that his base offense level would have been 32 if the district court had sentenced him pre-Booker. Reyes-Soto suggests that under Blakely the district court would not have made drug quantity findings by a preponderance of the evidence standard. Instead, he submits that the district court would have relied оn the jury‘s verdict that he possessed 500 grams or more of methamphetamine and applied a base offense level 32 for quantities of methamphetamine of at least 500 grams but less than 1.5 kilograms. See U.S.S.G. § 2D1.1(c)(4).
Rather than engage in speculation, we reviеw only the district court‘s actual calculation of Reyes-Soto‘s base offense level.1 The district court‘s drug quantity finding based upon a preponderance of the evidence standard was permissible because it applied the guidelines in an advisоry manner. See United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006) (“As before Booker, the standard of proof under the guidelines for sentencing facts continues to be preponderance of the evidence.“); United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005) (”Booker ... does not render judicial fact-finding by a preponderance of the evidence per se unconstitutional. The remedial portion of Booker demonstrates that such fact-finding is unconstitutional only when it operates to increase a defendant‘s sentence mandatorily“) (emphasis in original); United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005) (“[W]hen a district court makes a determination of sentencing facts by а preponderance test under the now-advisory Guidelines, it is not bound by jury determinations reached through application of the more onerous reasonable doubt standard.“). As a result, we review the district court‘s factual findings regarding drug quantity for clear error. Dalton, 409 F.3d at 1251 (citation omitted). At sentencing, Reyes-Soto did not present any evidence disputing the drug quantity and quality provided by the laboratory report. On appeal, Reyes-Soto fails to argue that the district court committed clear error in finding that he possessed 4,356 grams of “ice” methamphetamine. We therefore conclude that the district court‘s drug quantity findings were not clearly erroneous.
Finally, Reyes-Soto contends that at sentencing the district court adopted a “near-mandatory application” of the sentencing guidelines. Aplt. Br. at 15. We recently rejected this argument in United States v. Davis, 437 F.3d 989 (10th Cir. 2006). The defendant in Davis argued that the district court treated the guidelines as “de facto mandatory.” Id. at 997. We disagreed, observing that the record clearly indicated that the district court thoroughly considered the sentencing factors set forth in
AFFIRMED.