United States v. Esteban Salguero-Ortiz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ESTEBAN SALGUERO-ORTIZ, a/k/a Cadejo,
Defendant - Appellant.
No. 11-4288
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMIN OLIVA-MADRID,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:10-cr-00191-JCC-9; 1:10-cr-00191-JCC-6)
Argued: May 18, 2012 Decided: June 21, 2012
Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Benjamin Smith, SMITH & ZIMMERMAN, PLLC,
Alexandria, Virginia; Gregory Bruce English, THE ENGLISH LAW
FIRM, PLLC, Alexandria, Virginia, for Appellants. Chad Golder,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neil H. MacBride, United States Attorney,
Karen L. Dunn, Assistant United States Attorney, Courtney
Weiner, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jamin Oliva-Madrid (“Oliva”) and Esteban Salguero-Ortiz
(“Salguero”) were convicted and sentenced for conspiracy to
distribute cocaine. On appeal, Salguero contends that the
evidence supporting his conviction was insufficient, and Oliva
and Salguero also challenge their sentences on various grounds.
For the reasons that follow, we affirm.
I.
Oliva and Salguero were two of fifteen people indicted in a
cocaine distribution scheme that involved importing cocaine from
Mexico into Texas and distributing it in Maryland, Northern
Virginia, Philadelphia, and elsewhere. Oliva was involved in
the conspiracy in Virginia, where he owned a granite business
called JD Granite Countertops, Inc. that was used to further the
conspiracy. Salguero played a lesser role in the conspiracy in
the Philadelphia area.
After a jury trial, both Oliva and Salguero were convicted
of conspiracy to distribute five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 846. At sentencing, the
district court found Oliva accountable for at least sixty
kilograms of cocaine, applied a three-level enhancement for his
managerial role in the conspiracy, and imposed a below-
guidelines sentence of 188 months’ imprisonment. The court
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found Salguero accountable for fifteen kilograms of cocaine and
sentenced him to 151 months’ imprisonment, the low end of the
advisory sentencing range.
II.
We begin by addressing Oliva’s claim that the district
court made two errors at sentencing. Oliva first argues that
the district court improperly attributed sixty kilograms of
cocaine to him. He also maintains that the district court erred
in applying an aggravating role enhancement. We address the
drug quantity claim first.
A.
“We review the district court's calculation of the quantity
of drugs attributable to a defendant for sentencing purposes for
clear error.” United States v. Slade, 631 F.3d 185, 188 (4th
Cir. 2011) (internal quotation marks omitted). Oliva is in
agreement with the government that the evidence at trial proved
that Javier Maldonado, a co-conspirator, transported cocaine
from Texas to Virginia on ten different occasions. Oliva
disputes, however, the average quantity of cocaine that was
transported in each trip.
At sentencing, the district court attributed sixty
kilograms of cocaine to Oliva, but Oliva contends that he could
only be accountable for forty to fifty kilograms of cocaine
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based on a statement made by Maldonado that, on average, only
four to five kilograms were transported in each trip. In
another portion of Maldonado’s own testimony, however, he stated
that the average amount of cocaine transported per trip was “5
kilos, 6 kilos.” J.A. 80. Moreover, contrary to Oliva’s
contention that the maximum amount of cocaine transported in any
given trip to Virginia was seven kilograms, there is evidence in
the record that ten kilograms of cocaine were transported in a
single trip to Virginia. Under these circumstances, we cannot
say that the district court committed clear error in attributing
sixty kilograms of cocaine to Oliva. See United States v.
Randall, 171 F.3d 195, 210 (4th Cir. 1999) (“A district court’s
approximation of the amount of drugs is not clearly erroneous if
supported by competent evidence in the record.”); see also
United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992)
(“Neither the Guidelines nor the courts have required precise
calculations of drug quantity.”).
In any event, even if the district court’s drug quantity
calculation was clearly erroneous, the error would be harmless.
See United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th
Cir. 2011) (applying harmless error doctrine to drug quantity
calculation). Under the assumed error harmlessness inquiry, we
consider (1) whether “the district court would have reached the
same result even if it had decided the guidelines issue the
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other way,” and (2) whether “the sentence would be reasonable
even if the guidelines issue had been decided in the defendant's
favor.” United States v. Savillon-Matute, 636 F.3d 119, 123
(4th Cir. 2011) (internal quotation marks omitted). The
district court stated in its sentencing order that “even if
Defendant were correct regarding drug quantity . . ., this Court
would still impose a sentence of 188 months[’] imprisonment.”
J.A. 567D. The court also imposed a below-guidelines sentence
to create parity between Oliva’s sentence and that of a co-
conspirator whom the court believed to be equally as culpable as
Oliva. On appeal, Oliva does not challenge the substantive
reasonableness of his sentence, and we find that it would be
reasonable even accepting Oliva’s drug quantity calculation.
Therefore, any error in the drug calculation would be harmless.
See United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010)
(noting that “error is harmless if the resulting sentence was
not longer than that to which the defendant would otherwise be
subject” (alteration and internal quotation marks omitted)).
B.
Oliva also challenges the district court’s application of
an aggravating role enhancement, which provides, in pertinent
part, that “[i]f the defendant was a manager or supervisor (but
not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive, increase
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by 3 levels.” U.S.S.G. § 3B1.1(b) (2010). We review this claim
for clear error. See United States v. Sheffer, 896 F.2d 842,
846 (4th Cir. 1990).
There is no dispute that this criminal conspiracy was
“otherwise extensive.” Oliva contends, however, that he was not
a “manager or supervisor.” We disagree. Oliva recruited his
girlfriend, Nuria, to sell cocaine in Manassas, Virginia; he
supervised Nuria’s activities for a period of time; and he wrote
several checks amounting to $57,000 to the leader of the
conspiracy, Jorge Gutierrez, in order to pay for cocaine.
Given these facts, we find that the district court did not
clearly err in applying the sentence enhancement. See U.S.S.G.
§ 3B1.1 cmt. n.4 (discussing decision-making authority and
recruitment of accomplices).
In any event, the district court explained at sentencing
that “even if Defendant were correct . . . regarding his role in
the offense as being minor relative to his coconspirators, this
Court would still impose a sentence of 188 months.” J.A. 567D.
And we find that the sentence would be reasonable even without
application of the enhancement. Therefore, any error in
applying the enhancement was harmless. See Savillon-Matute, 636
F.3d at 123-24; Mehta, 594 F.3d at 283.
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III.
We turn now to Salguero’s arguments. Salguero contends
that the evidence was insufficient to support his conviction.
He also argues that the district court made three errors at
sentencing. We begin with Salguero’s sufficiency challenge.
A.
Salguero was convicted of conspiracy to distribute five
kilograms or more of cocaine. On appeal, he concedes that he
was part of the conspiracy but maintains that the evidence was
sufficient only to prove the offense of conspiracy to distribute
500 grams or more of cocaine. See United States v. Stewart, 256
F.3d 231, 256 (4th Cir. 2001) (explaining that drug quantity
must be found by a jury beyond a reasonable doubt).
“We review the sufficiency of the evidence to support a
conviction by determining whether there is substantial evidence
in the record, when viewed in the light most favorable to the
government, to support the conviction.” United States v.
Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation
marks omitted). “[S]ubstantial evidence is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant's guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc).
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The evidence at trial established that Salguero worked with
a co-conspirator named Edin Miguel Esteban-Esteban (a.k.a.
“Guero”) to accept two deliveries of cocaine. In the first
delivery, two other co-conspirators met Salguero and Guero at a
store in Philadelphia and removed three kilograms of cocaine
from their vehicle while Salguero and Guero stood nearby and
observed; and Guero ultimately took possession of the cocaine.
In the second delivery, three other co-conspirators, including
Maldonado, met Salguero and Guero in Philadelphia and delivered
two additional kilograms of cocaine. Maldonado first testified
that he gave the two kilograms of cocaine to Salguero, but he
later claimed that Guero took possession of the cocaine.
Salguero concedes that he was “linked” to the second
delivery of two kilograms of cocaine, but he argues that the
first delivery of three kilograms of cocaine cannot be
attributed to him because “the first shipment went to Guero
alone.” App. Brief at 27. We disagree.
Under Pinkerton v. United States, 328 U.S. 640 (1946), “a
person [is] liable for substantive offenses committed by a co-
conspirator when their commission is reasonably foreseeable and
in furtherance of the conspiracy.” United States v. Ashley, 606
F.3d 135, 142-43 (4th Cir. 2010). This extension of liability
applies to quantities of drugs within a conspiracy. See United
States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (“[A] trial
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court is obliged to instruct a jury to use Pinkerton principles
to determine the quantity of drugs attributable to each
individual defendant involved in a drug conspiracy.” (internal
quotation marks omitted)). There can be no dispute that the
three kilograms of cocaine in the first delivery were
transferred to Salguero and Guero in furtherance of the
conspiracy. Moreover, Salguero was present for the delivery of
the three kilograms, and according to Maldonado’s testimony,
Salguero worked with Guero. These facts alone would enable a
reasonable juror to find Salguero liable for the distribution of
all five kilograms of cocaine. In addition, the government
introduced audio recordings of Salguero arranging for the
shipment of another ten kilograms of cocaine and seeking to
purchase yet another kilogram of cocaine. Thus, there is
substantial evidence in the record to support his conviction.
B.
We turn finally to Salguero’s three challenges to his
sentence.
1.
Salguero first claims that the district court erred in
attributing at least fifteen but less than fifty kilograms of
cocaine to him for sentencing purposes. We review this claim
for clear error. See Slade, 631 F.3d at 188. “[T]he district
court may attribute to the defendant the total amount of drugs
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involved in the conspiracy, provided the drug quantities were
reasonably foreseeable to the defendant and are within the scope
of the conspiratorial agreement.” Randall, 171 F.3d at 210. We
find that the five kilograms of cocaine delivered in
Philadelphia, the ten kilograms of cocaine to be shipped, and
the one additional kilogram of cocaine to be purchased—amounting
to sixteen kilograms of cocaine—were reasonably foreseeable to
Salguero and within the scope of his conspiratorial agreement.
Therefore, the district court did not clearly err in attributing
at least fifteen kilograms of cocaine to Salguero for sentencing
purposes.
2.
Salguero next contends that the district court should have,
sua sponte, raised the issue of whether his deportable status
justified a downward variance from the guidelines. He argues
that because of his deportable status, he will be ineligible for
the benefits of 18 U.S.C. § 3624(c) and will, therefore, be
subjected to harsher conditions than will an otherwise identical
citizen. * While we have implicitly concluded that district
*
18 U.S.C. § 3624(a)(1) provides that “[t]he Bureau of
Prisons shall, to the extent practicable, assure that a prisoner
serving a term of imprisonment spends a reasonable part, not to
exceed six months, of the last 10 per centum of the term to be
served under conditions that will afford the prisoner a
reasonable opportunity to adjust to and prepare for the
prisoner’s re-entry into the community.”
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courts have the discretion to impose below-guidelines sentences
for this reason, see United States v. Hyppolite, 65 F.3d 1151,
1159 (4th Cir. 1995), we have never suggested that district
courts are required to do so. Moreover, the cases relied upon
by Salguero speak in discretionary, rather than obligatory,
terms. See United States v. Farouil, 124 F.3d 838, 847 (7th
Cir. 1997) (concluding that “[t]he district court is thus free
to consider” a defendant’s alien status (emphasis added));
United States v. Smith, 27 F.3d 649, 650 (D.C. Cir. 1994)
(considering “whether a sentencing court may depart” and
“hold[ing] such departures permissible” (emphasis added)).
Accordingly, the district court did not err by failing to raise
this issue sua sponte.
3.
Finally, Salguero argues that the district court committed
procedural error by failing to provide an individualized
sentence. During his sentencing hearing, Salguero emphasized
that he was a good man, was a hard worker who provided for his
family, had no criminal history, and was deportable. Without
explaining how the sentencing factors enumerated at 18 U.S.C. §
3553(a) applied to these personal circumstances, the district
court stated, “I think considering the 18 U.S.C. 3553 factors[,
the guidelines] range is appropriate.” J.A. 531. The court
then imposed a bottom-of-the-guidelines sentence.
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On appeal, the government concedes that the district court
committed procedural error but argues that the error was
harmless. Although we are not bound by the government’s
concession of error, see United States v. Rodriguez, 433 F.3d
411, 414 n.6 (4th Cir. 2006), we agree with the government that
any error was harmless.
Salguero’s arguments were relatively weak and provided no
concrete basis for distinguishing him from the many other first-
time offenders who support their families. The district court
listened to Salguero’s statements and arguments and, shortly
thereafter, asserted that it had arrived at the sentence by
considering the relevant factors. Thus, “we can say with fair
assurance that the district court’s explicit consideration of
[Salguero’s] arguments would not have affected the sentence
imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th
Cir. 2010) (alterations and internal quotation marks omitted);
cf. United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)
(vacating and remanding for resentencing based on “the strength
of Lynn’s arguments for a different sentence,” which were not
explicitly considered). Accordingly, we find that any
procedural sentencing error was harmless.
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IV.
For the foregoing reasons, Salguero’s conviction and
sentence are affirmed and Oliva’s sentence is also affirmed.
AFFIRMED
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