United States v. Caballero-Garcia ( 2002 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                          FEB 1 2002
    TENTH CIRCUIT                      PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 00-2495
    v.                                             (D.C. No. CR-99-1438-LH)
    (New Mexico)
    ARTURO CABALLERO-GARCIA,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
    Judge.
    Arturo Caballero-Garcia was charged in one count of a two-count
    indictment with conspiring to possess with intent to distribute more than 100
    kilograms of marijuana. He pled guilty without a plea agreement, and was
    *
    After examining appellant’s brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
    34.1(G). The case is therefore submitted without oral argument. This order and
    judgment is not binding precedent, except under the doctrines of law of the case,
    res judicata, or collateral estoppel. The court generally disfavors the citation of
    orders and judgments; nevertheless, an order and judgment may be cited under the
    terms and conditions of 10th Cir. R. 36.3.
    sentenced to 108 months in prison and four years of supervised release. In
    calculating Mr. Caballero’s sentence, the district court added four points to his
    offense level under section 3B1.1(a) of the United States Sentencing Guidelines
    for being a leader of criminal activity, and two points under section 3C1.1 for
    obstruction of justice. Mr. Caballero’s counsel filed a notice of appeal and a brief
    pursuant to Anders v. California, 
    386 U.S. 738
    (1967), and has moved for leave to
    withdraw as counsel. We grant leave to withdraw and dismiss the appeal.
    Anders holds that if counsel finds a case to be wholly frivolous after
    conscientious examination, he may so advise the court and request permission to
    withdraw. Counsel must also submit to both the court and his client a brief
    referring to anything in the record arguably supportive of the appeal. The client
    may then raise any point he chooses, and the court thereafter undertakes a
    complete examination of all proceedings and decides whether the appeal is in fact
    frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
    the appeal. See 
    id. at 744.
    In his Anders brief, counsel addresses the district court’s enhancement of
    Mr. Caballero’s sentence based on his leadership role and his obstruction of
    justice, and the court’s determination that Mr. Caballero did not meet the safety
    valve criteria set out in 18 U.S.C. § 3553(f). Mr. Caballero argues pro se that the
    court erred in enhancing his sentence based on his role in the offense, his
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    sentence was disproportionate when compared to that of a codefendant, the court
    erred in finding he had obstructed justice, and the court erred in calculating the
    amount of marijuana attributable to him.
    We turn first to the sentencing court’s determination that Mr. Caballero was
    a leader under section 3B1.1(a), which we review for clear error. See United
    States v. Cruz Camacho, 
    137 F.3d 1220
    , 1223-24 (10th Cir. 1998). The
    government must prove the facts establishing the defendant’s leadership role by a
    preponderance of the evidence. See 
    id. at 1224.
    The record indicates that Mr. Caballero was part of a conspiracy to import
    marijuana from Mexico into New Mexico and Arizona through couriers, and to
    distribute it at various locations in the United States. The presentence report
    recites evidence that Mr. Caballero was the drug supplier for the organization,
    that he offered the couriers money to transport the drugs across the border, and
    that he gave them instructions on pick-up and delivery. After an evidentiary
    hearing, the sentencing court ruled that Mr. Caballero was a leader of criminal
    activity under section 3B1.1(a), determining from the testimony of the couriers
    that Mr. Caballero exercised decision-making authority by setting the pay for the
    couriers and giving them delivery instructions, provided financing for the
    operation, recruited drivers, including an undercover agent, and received a larger
    share of the fruits of the crime than did other coconspirators. See U.S.S.G.
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    § 3B1.1(a), comment. (n.4). The record clearly supports these findings. Although
    Mr. Caballero contends pro se that the testimony of witnesses against him was not
    credible, “[t]he credibility of a witness at sentencing is for the sentencing court,
    who is the trier of fact, to analyze.” United States v. Deninno, 
    29 F.3d 572
    , 578
    (10th Cir. 1994). 1
    The sentencing court also imposed a two-level enhancement for obstruction
    of justice under section 3C1.1, finding that Mr. Caballero testified falsely under
    oath at his sentencing hearing with respect to his role in the offense. The
    commentary to section 3C1.1 provides that the enhancement is warranted when
    the defendant “provide[s] materially false information to a judge or magistrate.”
    USSG § 3C1.1, comment. (n.4(f)). We review the sentencing court’s factual
    determinations concerning obstruction of justice for clear error, giving due
    deference to the court’s application of the guidelines to the facts and its ability to
    judge the credibility of the witnesses upon which it relied. See United States v.
    Hankins, 
    127 F.3d 932
    , 934 (10th Cir. 1997). The record amply supports the
    1
    Our affirmance of the sentencing court’s determination that Mr. Caballero
    was a leader or organizer is dispositive of his claim that he was entitled to
    sentencing under the safety valve provision set out in 18 U.S.C. § 3553(f). That
    provision by its terms is not available to a defendant who was a leader or
    organizer as determined under the guidelines. See 
    id. § 3553(f)(4).
    We also
    reject Mr. Caballero’s pro se argument that his sentence was disproportionate to
    that of a co-conspirator. In view of the court’s determination that Mr. Caballero
    was a leader of the conspiracy, he was not similarly situated to his co-conspirator,
    whom the undisputed evidence shows was a courier.
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    sentencing court’s determination that Mr. Caballero lied about his conduct with
    respect to matters that were material to his role in the offense.
    Mr. Caballero argues pro se that the enhancement was improper because he
    was merely exercising his constitutional right to deny guilt. Other than a denial
    of guilt under oath that constitutes perjury, a refusal to admit guilt does not
    justify an enhancement for obstructing justice. See U.S.S.G. § 3C1.1, comment.
    (n.2); see also United States v. Urbanek, 
    930 F.2d 1512
    , 1515 (10th Cir. 1991).
    Mr. Caballero’s characterization of his testimony, however, is simply incorrect.
    Mr. Caballero admitted his guilt by pleading guilty. The issue at sentencing was
    whether his conduct during the offense warranted a sentencing enhancement
    based on his leadership role, a matter upon which he provided false information
    under oath to the sentencing court. The rule in Urbanek thus does not apply.
    Finally, we address Mr. Caballero’s pro se arguments addressing the district
    court’s calculation of the amount of marijuana attributable to him. We review
    this calculation for clear error. See Cruz 
    Camacho, 137 F.3d at 1225
    . “The
    government must prove the quantities of drugs for sentencing purposes by a
    preponderance of the evidence and the evidence relied upon must possess a
    minimum indicia of reliability.” 
    Id. Mr. Caballero
    contends that the government’s witnesses lacked credibility,
    asserting that two of the witnesses are now fugitives and that the testimony of
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    others was tainted by deals made with the government. The credibility of
    witnesses whose testimony is relied upon at sentencing is for the sentencing judge
    to evaluate. See 
    Hankins, 127 F.3d at 934
    ; see also 
    Deninno, 29 F.3d at 578
    .
    Here the court’s determination that the witnesses’ testimony possessed minimum
    indicia of reliability was not clear error.
    Mr. Caballero also appears to argue that because the drug quantity was used
    to enhance his sentence, the quantity was an element of the offense that must be
    proven beyond a reasonable doubt, citing, inter alia, Burton v. United States, 
    237 F.3d 490
    (5th Cir. 2000) (per curiam). In so doing, Mr. Caballero attempts to
    bring his case within the holding of Apprendi v. New Jersey, 
    530 U.S. 466
    (2000),
    in which the Supreme Court held that, other than a prior conviction, a fact that
    increases the penalty for a crime beyond the prescribed statutory maximum must
    be alleged in the indictment and proved beyond a reasonable doubt. See 
    id. at 490.
    In this case, Mr. Caballero pled guilty to conspiring to possess with intent to
    distribute more than 100 kilograms of marijuana. The penalty for that crime
    provides for a term of imprisonment “which may not be less than 5 years and not
    more than 40 years.” 21 U.S.C. § 841(b)(1)(B)(vii). Mr. Caballero was sentenced
    to 108 months, which is nine years and within the mandatory minimum and
    maximum terms for the crime to which he pled. Accordingly, the rule of
    Apprendi was not violated.
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    After careful review of the entire proceedings, we conclude that the record
    establishes no ground for appeal. We discern no error in the district court’s
    application of the guidelines. Accordingly, we GRANT counsel’s request to
    withdraw and we DISMISS the appeal.
    ENTERED FOR THE COURT
    Stephanie K. Seymour
    Circuit Judge
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