United States v. Ivan Nunez-Lizzarraga , 559 F. App'x 515 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0366n.06
No. 13-3904
FILED
UNITED STATES COURT OF APPEALS May 15, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
IVAN NUNEZ-LIZZARRAGA, ) OHIO
)
Defendant-Appellant. )
BEFORE: BOGGS and CLAY, Circuit Judges; COHN, District Judge.
PER CURIAM. Ivan Nunez-Lizzarraga, a federal prisoner, appeals through counsel the
sentence imposed following his guilty plea to a charge of possessing with intent to distribute
more than 100 grams of heroin.
The statutory mandatory minimum sentence for this offense is five years. The
presentence report calculated Nunez-Lizzarraga’s sentencing guideline range at 87 to 108
months. The district court varied downward and sentenced Nunez-Lizzarraga to 75 months. The
district court rejected Nunez-Lizzarraga’s argument that he was entitled to a two-level reduction
in the offense level for his minor role, pursuant to USSG § 3B1.2(b), which would have changed
the guideline range to 70 to 87 months. Nunez-Lizzarraga reasserts this argument on appeal.
A sentence may be procedurally unreasonable where the district court fails to properly
calculate the guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). We review a

The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 13-3904
United States v. Nunez-Lizzarraga
factual determination relevant to the denial of a minor role reduction for clear error. United
States v. Groenendal, 557 F.3d 419, 422-23 (6th Cir. 2009); United States v. Latouf, 132 F.3d
320, 332 (6th Cir. 1997). The defendant must prove by a preponderance of the evidence that he
was a minor participant. United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001).
In this case, Nunez-Lizzarraga maintained that he was only delivering the 822 grams of
heroin found in his motel room at the direction of a man in Arizona, who had not yet contacted
him about where the drugs were to be delivered. However, the government presented evidence
that law enforcement officials observed Nunez-Lizzarraga engaged in suspicious activity that
resembled a drug transaction in the parking lot of a casino. Also, a man who visited Nunez-
Lizzarraga’s motel room, Joaquin Reyes, was followed and eventually stopped while driving
from the motel. Reyes admitted to selling an ounce of heroin at one of the houses where he had
been observed making a brief visit after leaving the motel. The occupants of the house
corroborated that story. Reyes stated that he had been hired by Nunez-Lizzarraga to help drive
from Arizona and sell the heroin, and that Nunez-Lizzarraga had previously been in the drug
distribution business in Columbus, Ohio. While the district court did not give much weight to
Reyes’ statement, it did find that Nunez-Lizzarraga’s observed behavior and the sale of heroin by
Reyes indicated that there was more taking place in this case than Nunez-Lizzarraga’s statement
that he was a mere courier. Therefore, the court found that Nunez-Lizzarraga did not bear his
burden of proving by a preponderance of the evidence that he was only a minor participant.
Because the record shows no clear error in the district court’s determination that Nunez-
Lizzarraga was not eligible for a minor-role adjustment, we AFFIRM the district court’s
judgment.
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