United States v. Romero

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 20, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-7045
v. (D.Ct. No. CR-07-9-01-RAW)
(E.D. Okla.)
VICTORIANO ROMERO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, and BARRETT and BRORBY, Senior Circuit
Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Victoriano Romero pled guilty to one count of conspiracy to
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B) and § 846. 1 He now appeals his seventy-month sentence, arguing the
district court erred in failing to apply a two-level “safety valve” reduction
pursuant to 18 U.S.C. § 3553(f) and United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) § 5C1.2. We exercise jurisdiction pursuant to 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Romero’s sentence.
I. Factual and Procedural Background
On September 21, 2006, Mr. Romero was a passenger in a car stopped by
an Oklahoma Highway Patrol trooper for speeding and crossing the shoulder line
on an interstate in Oklahoma. When questioned, Mr. Romero stated the vehicle
belonged to him and produced insurance and registration verification. He also
explained the driver, who did not speak English, was his cousin and they were
driving to Springdale, Arkansas, to visit Mr. Romero’s brother. During a status
check on the vehicle, the El Paso Intelligence Center reported the vehicle entered
California from Mexico four days earlier and crossed the Mexican border into
Arizona several times within the prior three months. Based on this information
and other circumstances surrounding the stop, state troopers requested and
1
In pleading guilty, Mr. Romero agreed to waive all appellate rights
except to challenge any upward departure from the United States Sentencing
Guidelines. However, in this case, the government informed Mr. Romero it
would not seek enforcement of the waiver.
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obtained Mr. Romero’s consent to search the vehicle. In the rear interior of the
vehicle they found a fire extinguisher with fresh tool marks around the handle.
Inside, they found several latex wrapped bundles, which a field test indicated
contained heroin. A subsequent laboratory analysis verified the extinguisher
contained 924.99 grams of heroin. Inside the vehicle agents also found a
handwritten note containing a map marking streets in Brooklyn, New York, and
several phone numbers, including a 1-800 phone number later discovered to be
referenced in multiple Drug Enforcement Agency (DEA) investigations.
During a plea hearing, the district court accepted Mr. Romero’s guilty plea
to the charge of possession of 100 grams or more of heroin with intent to
distribute. Thereafter, DEA agents conducted a safety valve debriefing with Mr.
Romero; during the interview Mr. Romero indicated he did not know he was
transporting drugs but believed the fire extinguisher contained currency. More
specifically, he claimed someone known only to him as “Junior,” whom he met at
a dance in California, asked him to deliver the fire extinguisher to Springdale,
Arkansas, after he learned Mr. Romero planned to travel there to see his brother.
According to Mr. Romero, Junior called him several times before the trip and
agreed to pay him $1,000 for transporting the fire extinguisher to that location.
However, when agents asked Mr. Romero to identify Junior’s telephone number
from Mr. Romero’s phone toll information, he stated he could not because Junior
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used a restricted number. Mr. Romero also stated that when he arrived in
Springdale he was to deliver the fire extinguisher to an unidentified male but
claimed he had no other information about the delivery because Junior was to
provide further instructions by phone. When challenged about his assertion the
delivery was for Springdale, Arkansas, instead of a larger city with a more
established market for heroin, Mr. Romero insisted he was delivering the
extinguisher to Springdale and further claimed he had never seen the handwritten
note found in his vehicle with the map marking streets in Brooklyn, New York,
and several phone numbers. When agents dialed the 1-800 phone number, they
discovered a recorded message instructing the person calling to enter a PIN
number. A further check of the phone number established it appeared in over
twenty DEA investigations in the prior two to three years and that all calls were
incoming and not outgoing from that number. The 1-800 phone number was
believed to be an access number for a prepaid calling card.
Following the interview, DEA agent Darren Lane, through a DEA agent
located in Fayetteville, Arkansas, contacted a sergeant with the northwest
Arkansas drug task force, who advised that in the past four years, the jurisdiction
which included Springdale had only occasionally received information regarding
heroin sales, but that attempts to purchase heroin had either not materialized or
the drug actually involved was not heroin. Because a kilogram is considered a
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significant quantity of heroin exceeding typical street-level distribution amounts,
Agent Lane concluded the Springdale, Arkansas market could not support the
distribution and sale of such a large amount of heroin and that the likely
destination was New York City, as supported by the handwritten note found in
Mr. Romero’s vehicle showing a map with Brooklyn streets and the 1-800 phone
number associated with several prior drug investigations.
Shortly thereafter, the government proposed: 1) Mr. Romero withdraw his
guilty plea to the possession of heroin charge; 2) the government move to dismiss
the charge; and 3) Mr. Romero plead guilty to a new conspiracy charge. The
government later explained it made this proposal based on Mr. Romero’s claim he
believed he was transporting money instead of heroin, which was inconsistent
with his testimony at his plea hearing and caused the government concern he
might later contest his guilty plea to possession of heroin. Mr. Romero
subsequently agreed to withdraw his plea, which the district court approved. The
government then charged Mr. Romero with one count of conspiracy to distribute
100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)
and § 846, to which he pled guilty.
Following Mr. Romero’s guilty plea, a probation officer prepared a
presentence report calculating the base offense level at 30, given the drug offense
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involved at least 700 grams but less than one kilogram of heroin. The probation
officer then recommended a two-level reduction under U.S.S.G. § 2D1.1(b)(9)
(now § 2D1.1(b)(11)) “if” Mr. Romero met the safety valve criteria in § 5C1.2.
She also recommended a three-level reduction for acceptance of responsibility
under § 3E1.1(b), for a total offense level of 25. An offense level of 25, together
with Mr. Romero’s criminal history category of I, resulted in a Guidelines range
of fifty-seven to seventy-one months imprisonment. Mr. Romero stated he had no
objections to the presentence report; however, the government filed an objection,
stating Mr. Romero did not qualify for a safety valve reduction of two levels
because he failed to meet the criteria in U.S.S.G. § 5C1.2(a)(5) by failing to
truthfully provide to the government all information and evidence he had
concerning the offense or offenses that were part of the same course of conduct or
of a common scheme or plan. In support, the government submitted a copy of the
DEA report of the interview with Mr. Romero and a letter from the agent
conducting that interview. Mr. Romero responded to the objection, stating the
government was incorrect in its assertion because when Mr. Romero met with
DEA agents he told them everything he knew, and immediately thereafter the
government allowed him to withdraw his initial plea and plead to a different
charge, thereby signifying “at least some modicum of belief in his assertions.”
At the sentencing hearing the government renewed its objection to a safety
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valve reduction, while Mr. Romero, through counsel, argued that the probation
officer’s recommendation of such a reduction also indicated Mr. Romero “raised a
modicum of believability.” Mr. Romero’s counsel also renewed Mr. Romero’s
argument about the truthfulness of his statements during his DEA interview,
including the fact that he has family in Springdale, and then explained that drug
organizations typically do not provide the courier with specific information. In
addition, counsel relayed Mr. Romero talked to his sister and she believed the
map was left in his vehicle by one of her friends; counsel also pointed out the
suspect phone number was merely an access number to a prepaid calling card
which, for unknown reasons, a lot of people in the drug trade called.
In making its determination on the safety valve issue, the district court
stated it had considered the DEA report and Agent Lane’s letter regarding the
interview with Mr. Romero, determined the government had made a reasonable
inference from the available evidence that Mr. Romero had not been truthful, and
found “the most telling evidence” included the Brooklyn map and phone numbers
in Mr. Romero’s vehicle for which he provided no plausible explanation. The
district court then found Mr. Romero did not meet the criteria for a two-level
safety valve reduction under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. As a
result, it calculated the total offense level at 27, resulting in an advisory
sentencing range of seventy to eighty-seven months imprisonment, and sentenced
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Mr. Romero to seventy months imprisonment. The district court further
recounted each of the sentencing factors in 18 U.S.C. § 3553(a), which it stated it
had considered in formulating Mr. Romero’s sentence.
II. Discussion
Mr. Romero now appeals his sentence, contending the district court erred in
failing to apply the safety valve reduction under 18 U.S.C. § 3553(f) and U.S.S.G.
§ 5C1.2 based on its erroneous determination he failed to truthfully disclose all
pertinent information. In support of his contentions, Mr. Romero claims the
district court’s conclusion he did not fully disclose all known information was not
supported by the record and, in support, renews the same arguments raised before
the district court. In sum, Mr. Romero claims none of the evidence provided by
the government proves he knew more information than was offered at his DEA
interview.
When reviewing a district court’s application of the Guidelines in
calculating a sentence, including the application of § 5C1.2, we review legal
questions de novo and any factual findings for clear error, giving due deference to
the district court’s application of the Guidelines to the facts. See United States v.
Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000). “A district court’s
factual finding is clearly erroneous only if it is without factual support in the
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record or if this court, after reviewing all the evidence, is left with a definite and
firm conviction that a mistake has been made.” Id. (quotation marks, citation, and
alterations omitted). Since United States v. Booker, 543 U.S. 220 (2005), we
have clarified that we review a district court’s sentence for abuse of discretion,
asking whether it is reasonable under the 18 U.S.C. § 3553(a) sentencing factors.
See United States v. Garcia-Lara, 499 F.3d 1133, 1135 (10th Cir. 2007), petition
for cert. filed (U.S. Mar. 7, 2008) (No. 07-9799). We employ the abuse of
discretion standard by reviewing a district court’s factual findings for clear error
and deferring to the district court’s “exercise of discretion within the bounds of
reasonableness.” Id. at 1136. We require reasonableness in two respects – “the
length of the sentence, as well as the method by which the sentence was
calculated.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per
curiam).
Applying this standard of review, we turn directly to the legal principles
applicable to Mr. Romero’s safety valve claim. By statute, pursuant to 18 U.S.C.
§ 3553(f), the district court must “impose a sentence pursuant to guidelines ...
without regard to any statutory minimum sentence,” if it finds at sentencing the
defendant meets certain safety valve criteria. 18 U.S.C. § 3553(f); see also
U.S.S.G. § 5C1.2 (relying on the same criteria for the purpose of granting a
below-mandatory minimum sentence). In this case, the only contested criterion is
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whether Mr. Romero truthfully provided to the government all information and
evidence he possessed concerning the conspiracy offense. 2 See 18 U.S.C.
§ 3553(f)(5) and U.S.S.G. § 5C1.2(a)(5). This criterion requires truthful
disclosure, regardless of whether the information is deemed relevant or useful to
the government’s investigation. United States v. Acosta-Olivas, 71 F.3d 375, 377,
379 (10th Cir. 1995). A district court’s determination on whether to apply a
safety valve reduction “is fact specific and dependent on credibility
determinations that cannot be replicated with the same accuracy on appeal.”
United States v. Stephenson, 452 F.3d 1173, 1180 (10th Cir. 2006). The burden is
on Mr. Romero to show by a preponderance of the evidence he met this criterion.
See id. at 1179.
In this case, in support of its opposition to a safety valve reduction, the
government submitted the DEA report concerning Mr. Romero’s interview, as
well as a DEA agent’s letter regarding that interview and his follow-up inquiries
and conclusions regarding the likelihood the intended delivery was for the New
York City area. In turn, at no time did Mr. Romero meet his burden of proof by
providing any exculpatory evidence other than his own self-serving denials at his
interview about possessing additional information and his counsel’s assertions
2
Because neither party contests or raises as an issue the other § 3553(f)
criteria, we will not address them on appeal.
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made on his behalf at the sentencing hearing, which included the assertion Mr.
Romero talked to his sister, who told him the incriminating handwritten note and
Brooklyn map belonged to her friend. Clearly, such an assertion by counsel is not
considered evidence or otherwise sufficient to rebut the evidence in the record.
Moreover, the fact the 1-800 phone number was associated with a calling card
does not sufficiently counter the fact it was associated with multiple DEA
investigations and found in Mr. Romero’s car, which also contained a substantial
amount of heroin and was identified as having entered California from Mexico
four days earlier and crossed the Mexican border into Arizona several times
within the prior three months. Thus, regardless of whether Mr. Romero has
family in Springdale, Arkansas, or he knew whether the fire extinguisher
contained currency or drugs, incriminating evidence in the record supports the
district court’s conclusion Mr. Romero was not forthcoming about all the
information he possessed concerning his offense, including his possession and
knowledge about the map found in his vehicle.
We also find unconvincing Mr. Romero’s argument the government and
probation officer initially believed the truthfulness of his assertions, as evidenced
by the government’s suggestion Mr. Romero withdraw his initial plea due to his
conflicting interview statements and the probation officer’s recommendation he
receive a safety valve reduction if he provided truthful information. Again,
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neither is sufficient evidence or information to rebut the evidence in the record
supporting the district court’s determination. We therefore reject Mr. Romero’s
claim the record did not support the district court’s determination he was
ineligible for a safety valve reduction and further conclude the district court’s
failure to apply such a reduction was not an abuse of discretion, noting we are not
left with a definite and firm conviction that a mistake has been made.
Turning to the general issue of the reasonableness of Mr. Romero’s
sentence in conjunction with the § 3553(a) factors, we note the district court
considered those factors in formulating Mr. Romero’s sentence and imposed a
sentence within the advisory Guidelines range. We have determined a
presumption of reasonableness attaches to a sentence, like here, which is within
the correctly-calculated Guidelines range. See Kristl, 437 F.3d at 1053-55. “This
is a deferential standard that either the defendant or the government may rebut by
demonstrating that the sentence is unreasonable when viewed against the other
factors delineated in § 3553(a).” Id. at 1054. In this case, Mr. Romero has not
met such a burden or otherwise demonstrated his sentence is unreasonable in
conjunction with the 18 U.S.C. § 3553(a) sentencing factors.
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III. Conclusion
For the foregoing reasons, we AFFIRM Mr. Romero’s sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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