United States v. Escobar-Quintanilla

613 F.3d 1169, 2010 U.S. App. LEXIS 15244, 2010 WL 2890270

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 26, 2010
• Docket: 09-2162
• Status: Published

Opinions

PER CURIAM.

Orlando Escobar-Quintanilla pleaded guilty to twelve counts of conspiring to distribute and distributing methamphetamine and using a communication device to facilitate methamphetamine distribution in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and (B), 843(b), and 846. At sentencing, the district court¹ determined that Escobar’s total offense level is 35, resulting in an advisory guidelines sentencing range of 168 to 210 months in prison. Explicitly balancing all the 18 U.S.C. § 3553(a) sentencing factors, the court denied Escobar’s motion for a downward variance but took into account his personal mitigating factors in imposing a sentence at the low end of the range. The court sentenced Escobar to 168 months in prison, finding “that this sentence is sufficient but not greater than necessary [and] meets all of the sentencing objectives in 3553(a).”²

On appeal, Escobar first argues the district court clearly erred in determining a base offense level of 35 rather than 34 based on the quantity of drugs attributable to his offenses. The government correctly argues that this contention is without merit because, at sentencing, the district court explicitly found a drug quantity level of 34, rather than level 36 as urged by the government.

Escobar next argues the district court erred in imposing a four-level rather than a two-level increase for his role in the offense. See U.S.S.G. § 3B1.1. At sentencing, Escobar conceded that a three-level increase is warranted, thereby waiving his contention on appeal that a two-level increase is appropriate. The district court found that he was an organizer or leader of the conspiracy, and therefore warranted a four-level increase under § 3Bl.l(a), because he recruited others to join the ten-participant conspiracy, directed drug deliveries, and dictated where drugs would be stored. The court noted that a four-level as opposed to a three-level increase “is a close call” that was “not critical to the ultimate sentence” imposed. After careful review of the sentencing record, we conclude that the court did not clearly err in imposing a four-level role-in-the-offense increase. In addition, any error was harmless because it did not affect the court’s “ultimate determination of a reasonable sentence.” United States v. Shuler, 598 F.3d 444, 447 (8th Cir.2010) (quotation omitted).

The judgment of the district court is affirmed.

1 . The HONORABLE MARK W. BENNETT, United States District Judge for the Northern District of Iowa.

2 . The district court also stated that it was imposing a reasonable sentence, but this is irrelevant to our appellate review. The Supreme Court instructed the lower courts in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007), that a district court may not presume that an advisory guidelines sentence is reasonable. We applied that principle in reversing the sentence in United States v. Greene, 513 F.3d 904, 907-08 (8th Cir.2008). The Sixth Circuit footnote quoted in a see also citation in Greene should not be applied more broadly than this context.