United States v. Jesus Lizarraga , 682 F. App'x 529 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1589
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jesus Adam Lizarraga
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa, Waterloo
____________
Submitted: January 13, 2017
Filed: April 6, 2017
[Unpublished]
____________
Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
____________
PER CURIAM.
Jesus Adam Lizarraga pleaded guilty to conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and
to money laundering in violation of 18 U.S.C. § 1956(a)(3)(B). The district court1
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
sentenced him to 264 months’ imprisonment on the conspiracy charge and a
concurrent 240 months on the money-laundering charge. Lizarraga challenges his
sentence. We affirm.
In late 2013, Chad Weyland, Seth Beard, and Sara Weissenfluh were
distributing “ice” methamphetamine (ice) in and around Waterloo, Iowa. Lizarraga,
who lived in California, recruited Weyland and Beard to distribute ice for him in
Iowa. Weyland and/or Beard made at least three trips to Omaha, Nebraska, between
December 2013 and April 2014, each time obtaining between three and five pounds
of ice from Lizarraga. Weyland and Beard later had a falling out, and Lizarraga
instructed Beard not to work with Weyland any longer.
In April 2014, Weissenfluh drove from Iowa to California to obtain five
pounds of ice from Lizarraga. Lizarraga “and his associates in California” hid the ice
in the spare tire of Weissenfluh’s vehicle before she drove back to Iowa. Weissenfluh
and Beard then sold the ice in Iowa, where Lizarraga later arrived to collect the
proceeds from these sales. Weissenfluh drove to California to obtain ice from
Lizarraga again in May 2014. The ice was again concealed in the spare tire of
Weissenfluh’s vehicle, but this time Lizarraga directed Weissenfluh to drive the ice
back to Iowa and then to wait for him to provide further instructions regarding
distribution of the drugs. On the return drive, Weissenfluh was stopped by Mesquite,
Nevada, law enforcement officers for a traffic violation. After a drug dog alerted to
Weissenfluh’s vehicle, officers obtained a warrant, searched the vehicle, and
recovered just under five pounds of 100% pure ice methamphetamine from the spare
tire in the trunk. Weissenfluh thereafter began cooperating with law enforcement
officers. She informed officers in July 2014 that Lizarraga had called and instructed
her to deposit cash into the U.S. Bank account for “Christopher Grande” as payment
for a portion of the ice that, unbeknownst to Lizarraga, had been seized from
Weissenfluh’s vehicle in May 2014. An officer followed Lizarraga’s instructions to
-2-
Weissenfluh and deposited $5,000 in government funds into the “Christopher
Grande” U.S. Bank account.
In February 2015, Lizarraga contacted Weissenfluh and asked to meet with her
in Waterloo. Weissenfluh notified officers, who provided her with a recording
device. During the meeting, Lizarraga offered to “front” one pound of ice, which
Weissenfluh would sell in Iowa on his behalf. Later that day, Lizarraga provided the
ice, for which Weissenfluh agreed to pay $12,000. Weissenfluh paid Lizarraga a total
of $10,500 in government cash in two installments. Lizarraga gave Weissenfluh a
note listing a “Hispanic name” and a Mexican bank account and instructed her to
deposit the remaining $1,500 in that account. Weissenfluh wired $1,500 in
government funds as instructed on March 10.
Lizarraga contacted Weissenfluh again in June 2015 and offered to supply her
with two pounds of ice. Weissenfluh notified officers, who set up surveillance on
Lizarraga’s hotel room after he arrived from California. Lizarraga arranged to meet
Weissenfluh on June 28 to deliver the ice. Lizarraga was stopped by officers en route
to the meeting. After a drug dog alerted to Lizarraga’s vehicle, officers recovered two
packages of ice from a backpack in the vehicle. A later search of Lizarraga’s hotel
room pursuant to a warrant led to the recovery of an additional three packages of ice
for a total of almost five pounds of 99.6% pure ice methamphetamine.
Lizarraga entered into an agreement with the government, pleading guilty to
the drug-conspiracy and money-laundering charges and stipulating to the facts set
forth above. A presentence report (PSR) was then prepared, which set forth the
offense conduct in more detail. The PSR recommended application of a three-level,
aggravating-role adjustment under § 3B1.1(b) of the U.S. Sentencing Guidelines
Manual (Guidelines or U.S.S.G.) based on Lizarraga’s role as a “manager or
supervisor” of criminal activity that involved “five or more participants or was
-3-
otherwise extensive.” Lizarraga objected to the adjustment, but he did not contest any
of the underlying facts upon which it was based.
The parties presented no additional evidence at the sentencing hearing, relying
instead on the stipulated facts set forth in the plea agreement and the uncontested
facts set forth in the PSR. The district court applied the aggravating-role adjustment
over Lizarraga’s objections, finding “by a preponderance of the evidence” that
Lizarraga managed or supervised “criminal activity involving five or more
participants or a criminal conduct that was otherwise extensive.” Lizarraga’s
resulting advisory Guidelines sentencing range was 235 to 293 months’
imprisonment. After “examin[ing] the case as a whole,” and considering the parties’
briefs on the issue, the district court found “no basis for a [downward] variance in this
case.” The court then discussed the § 3553(a) sentencing factors and concluded that
the sentence that was “sufficient, but not greater than necessary, to achieve the goals
of sentencing [was] a mid-range sentence of 264 months” on the drug-conspiracy
charge and a concurrent sentence of 240 months on the money-laundering charge.
Lizarraga argues that the district court erroneously applied the aggravating-role
adjustment, improperly presumed that a Guidelines sentence was reasonable, and
failed to adequately explain the basis for its sentencing decision.
“‘The district court’s factual findings, including its determination of a
defendant’s role in the offense, are reviewed for clear error,’ while its ‘application of
the guidelines to the facts is reviewed de novo.’” United States v. Gaines, 639 F.3d
423, 427-28 (8th Cir. 2011) (quoting United States v. Bolden, 622 F.3d 988, 990 (8th
Cir. 2010) (per curiam)). The court’s factual findings “must be supported by a
preponderance of the evidence,” and we will disturb those findings only if they are
“unsupported by substantial evidence, [are] based on an erroneous view of the
applicable law, or [if] in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made.” United States v. Starks, 815 F.3d 438, 441
(8th Cir. 2016) (quoting United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012)).
-4-
The district court may accept as true for sentencing purposes those specific factual
allegations set forth in the PSR to which the defendant does not object. See United
States v. Pepper, 747 F.3d 520, 523 (8th Cir. 2014).
Based on the factual stipulations set forth in the plea agreement and the
uncontested facts set forth in the PSR, the district court found that an aggravating-role
adjustment under § 3B1.1(b) was appropriate. Lizarraga recruited Weyland and
Beard to distribute ice for him in Iowa and later instructed Beard not to work with
Weyland. Lizarraga “and his associates in California” hid ice in Weissenfluh’s
vehicle, Lizarraga directed Weissenfluh to drive the second shipment of ice to Iowa
and then wait for his further instructions regarding distribution, and Lizarraga
directed Weissenfluh to deposit drug proceeds in particular bank accounts. These
facts were sufficient to prove by a preponderance that Lizarraga was a manager or
supervisor for purposes of the § 3B1.1 aggravating-role adjustment. See Bolden, 622
F.3d at 990 (noting that “the simple fact that a defendant recruits new members into
a conspiracy supports a finding” that he was a manager or supervisor); U.S.S.G.
§ 3B1.1 cmt. n.4 (noting that “the exercise of decision making authority” and “the
degree of control and authority exercised” over other participants in criminal activity
weighs in favor of the adjustment).
The factual stipulations set forth in the plea agreement and the uncontested
facts set forth in the PSR also indicated that the drug conspiracy involved five or
more participants, namely, Lizarraga, Weissenfluh, Beard, Weyland, and
“[Lizarraga’s] associates in California,” who helped hide ice in Weissenfluh’s spare
tire. These facts were sufficient to prove by a preponderance that Lizarraga managed
or supervised criminal activity involving five or more participants, even though the
California associates were not identified by name. See, e.g., United States v. Cortez-
Diaz, 565 F. App’x 741, 750 (10th Cir. 2014) (affirming application of the § 3B1.1
adjustment even though last names of two participants were unknown); United States
v. Thomas, 373 F. App’x 538, 540-41 (6th Cir. 2010) (upholding aggravating-role
-5-
adjustment based on eleven possible participants, including two with unknown last
names); United States v. Mansoori, 304 F.3d 635, 668 (7th Cir. 2002) (noting that “in
some cases, the evidence may leave no doubt that the defendant directed another
culpable participant but may not reveal that person’s name” and citing cases); United
States v. Fells, 920 F.2d 1179, 1182-83 (4th Cir. 1990) (affirming application of
aggravating-role adjustment where district court found that unnamed “lower-level
drug dealers” were participants).
In addition to establishing that there were five or more participants, the
evidence was also sufficient to show that the criminal activity was “otherwise
extensive” for purposes of the § 3B1.1 aggravating-role adjustment. The “nature and
complexity of the operation and its geographical reach” are relevant in determining
whether the activity was extensive. United States v. Rosas, 486 F.3d 374, 377 (8th
Cir. 2007) (quoting United States v. Vasquez-Rubio, 296 F.3d 726, 729 n.3 (8th Cir.
2002)). Lizarraga, as well as participants acting on his behalf, traveled between
California and Iowa to retrieve or deliver large quantities of high-purity ice and
proceeds from drug sales, and Lizarraga directed that proceeds from drug sales be
deposited in or wired to both U.S. and Mexican bank accounts opened in other
peoples’ names. These facts were sufficient to prove by a preponderance that the
criminal activity was “otherwise extensive” for purposes of the § 3B1.1 aggravating-
role adjustment.
Lizarraga also challenges his sentence, arguing that the district court erred by
failing to adequately explain the basis for its sentencing decision, by presuming that
a Guidelines sentence was reasonable, and by failing to properly consider the
18 U.S.C. § 3553(a) sentencing factors.2 We review the district court’s sentencing
2
Lizarraga concedes that because he did not object before the district court, the
plain-error standard of review applies to his claims that the court did not adequately
explain its sentencing decision and that it applied a presumption of reasonableness
to the Guidelines sentence. See United States v. Pate, 518 F.3d 972, 975 (8th Cir.
-6-
determinations under a deferential abuse-of-discretion standard, first ensuring that the
court committed “no significant procedural error,” and then considering the
“substantive reasonableness” of the ultimate sentence. Gall v. United States, 552 U.S.
38, 51 (2007).
After properly calculating the Guidelines range, the court noted that it was
required to “examine the case as a whole” in light of the § 3553(a) factors and
determine “whether or not [it] must vary from the advisory guideline range” to
impose an appropriate sentence. The court expressly considered Lizarraga’s various
arguments in support of a downward variance, it discussed several of the § 3553(a)
factors in detail, and it finally stated that, “[a]fter considering all the statutory factors,
everything [it knew] about the case and all the arguments made orally and in writing,
. . . the sentence that is sufficient, but not greater than necessary, to achieve the goals
of sentencing is a mid-range sentence of 264 months.” Contrary to Lizarraga’s
arguments, the court did not presume that a Guidelines sentence was reasonable,
noting instead that it was not bound by the Guidelines and that they were “one of
several factors” that the court was required to consider. See, e.g., United States v.
Shiradelly, 617 F.3d 979, 983 n.5 (8th Cir. 2010) (per curiam) (“The district court
acknowledged it was free to vary from the guidelines range, and the mere conclusion
that an ultimate sentence is reasonable is not equivalent to presuming the guidelines
range to be reasonable.”).
Nor did the court inadequately explain its sentencing decision. The court stated
that it had considered all of the § 3553(a) factors, Lizarraga’s arguments for a
downward variance, the facts and history set forth in the PSR, and the drug quantity
involved in the conspiracy, and it concluded that a sentence in the middle of the
2008) (“We review for plain error an argument not raised at sentencing.”). Because
these claims fail under any standard of review, we consider all of Lizarraga’s
sentencing arguments under the abuse-of-discretion standard of review.
-7-
advisory Guidelines range was appropriate. District courts are given “wide latitude”
to weigh the § 3553(a) factors, including the latitude to assign some factors more or
less weight than a defendant would prefer. See United States v. Anderson, 618 F.3d
873, 883 (8th Cir. 2010). Moreover, “when a judge decides simply to apply the
Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.” Rita v. United States, 551 U.S. 338, 356 (2007); see also Anderson,
618 F.3d at 882-83 (noting that a district court “need not categorically rehearse each
of the § 3553(a) factors on the record when it imposes a sentence as long as it is clear
that they were considered” (citations omitted)).3 The district court committed no
procedural error, the sentence is not substantively unreasonable.
The judgment is affirmed.
______________________________
3
To the extent Lizarraga argues that the Guidelines are unsupported by
empirical evidence and result in unduly severe sentences for methamphetamine
offenses, these policy arguments are not properly made to this Court. See United
States v. Coleman, 635 F.3d 380, 383 (8th Cir. 2011). Although the district court
could have varied from the Guidelines based on such a policy disagreement, it was
not required to do so. See id.-8-