F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 3, 2006 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-2087 (D . N.M .) ELOY VELA SQUEZ, (D.Ct. No. CR-05-799 JC)
Defendant-Appellant. ____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, 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. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Appellant Eloy Velasquez pled guilty to two counts of selling five grams or
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
He now appeals his 151-month sentence, contending the district court erred in
failing to address his arguments and explain its reasons for sentencing him to 151
months imprisonment and, otherwise, by imposing an unreasonable sentence
under 18 U.S.C. § 3553(a). W e exercise jurisdiction pursuant to 18 U.S.C. § 3742
and 28 U.S.C. § 1291, and affirm M r. Velasquez’s conviction and sentence.
I. Factual Background
On February 3, 2005, M r. Velasquez arranged to met his estranged wife and
her “nephew” at the Farmer’s M arket grocery store in Bloomfield, New M exico,
for the purpose of selling them methamphetamine; in making the arrangements for
the meeting, M r. Velasquez indicated they would move to another location after
he met them at the Farmer’s M arket. Unknown to M r. Velasquez, his wife
actually brought an undercover Drug Enforcement Administration (DEA) officer
posing as her nephew.
According to the statement of M r. Velasquez’s cousin, Joseph Elmer Lujan,
M r. Velasquez instructed him to go to the Farmer’s M arket in advance of the
meeting and look for a black Suburban, which M r. Velasquez knew the DEA
Region II office used. M r. Velasquez paid M r. Lujan one-half gram of
methamphetamine for his counter-surveillance. M r. Lujan’s statement was
-2- corroborated by agents who observed M r. Lujan travel from M r. Velasquez’s
apartment to the Farmer’s M arket fifteen minutes prior to when M r. Velasquez
left the apartment for the meeting, and they later saw M r. Lujan driving around
the area of the Farmer’s M arket conducting counter-surveillance.
W hen M r. Velasquez met his wife and the agent at the Farmer’s M arket, he
instructed them to follow his vehicle, after which he led them to a field outside of
town. M r. Velasquez then sold the agent two ounces of methamphetamine for
$2,400 and told the agent he could get him anything he wanted in the future,
including cocaine, marijuana, and more methamphetamine, bragging, “W e just
moved ten pounds to Denver last week.” He also told the agent he would charge
him $600 per pound for future marijuana purchases. W hen the agent asked for
another ounce of methamphetamine, M r. Velasquez initially said he could provide
it later that day but subsequently contacted his wife and told her he could not
retrieve it that day, requesting they conduct the transaction at a later time.
On February 17, 2005, M r. Velasquez’s wife contacted him requesting he
sell her “nephew ” another three ounces of methamphetamine. That afternoon, M r.
Velasquez met the agent in a parking lot and the agent paid $3,600 for eighty-four
grams of methamphetamine. M r. Velasquez then spoke to the agent about
distributing ounce quantities of cocaine for M r. Velasquez in Colorado. M r.
-3- Velasquez also told the agent he had moved “kilo” quantities of cocaine and
would sell the agent cocaine at $800 to $900 per ounce. They also discussed the
agent driving across the border and transporting loads of narcotics; M r. Velasquez
advised he would provide a vehicle and pay the agent between $3,000 and $5,000
per load. At the conclusion of their discussion, M r. Velasquez told the agent to
contact him directly for future transactions.
After M r. Velasquez’s arrest and indictment, he pled guilty to two counts of
selling five grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). Following his guilty plea, a probation officer prepared
a presentence report, calculating M r. Velasquez’s base offense level at thirty-two
under United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
§ 2D 1.1(c)(4), and applying a tw o-level upward role adjustment under U.S.S.G .
§ 3B1.1(c) as an organizer, leader, manager, or supervisor. The probation officer
based the two-level role adjustment on the fact M r. Velasquez arranged the time
and place of the transactions; negotiated the price for the drugs; advised he could
sell the agent cocaine, marijuana, and methamphetamine in the future; provided
prices for future purchases; and instructed and hired M r. Lujan for one-half gram
of methamphetamine to conduct counter-surveillance for him at the Farmer’s
M arket. The probation officer concluded M r. Velasquez met the requirements of
§ 3B1.1(c) because he was the supplier and dealer; exercised management
-4- responsibility over the drugs; directly benefitted from the profit made; and
instructed one participant, M r. Lujan, to provide counter-surveillance. After
applying a three-level downward adjustment for acceptance of responsibility, for
a total offense level of thirty-one, and factoring in M r. Velasquez’s criminal
history at Category IV, the probation officer calculated his sentencing range at
151 to 188 months imprisonment.
II. Procedural Background
M r. Velasquez filed formal written objections to the presentence report,
arguing, in part, against the two-level role adjustment. He claimed the fact he
was a drug dealer did not qualify him for an enhancement because every drug
transaction requires negotiation of the price, arrangement of the time and place of
the transaction, and management responsibility over the drugs. Instead, he
argued, any management must be over people, and M r. Lujan was not: 1) an
employee or operative of his; 2) under his control or supervision; or 3) part of any
organization, but merely a friend who was not present during the drug
transactions and whose appearance in the first offense was “very fleeting in
nature.” H e also contended the half gram of methamphetamine provided M r.
Lujan was not a “quid pro quo,” as M r. Lujan merely took advantage of his
generosity. He also explained no need existed for M r. Lujan to provide “counter-
surveillance” because M r. Velasquez had informed his wife the actual transaction
-5- would take place in another location.
In addition to his objection to the role adjustment under § 3B1.1(c), M r.
Velasquez requested a “downward departure and variance” under United States v.
Booker 1 and 18 U.S.C. § 3553(a) on grounds his actions w ere motivated by his
wife or by a form of “sentencing entrapment,” 2 causing him to: 1) sell larger
quantities of methamphetamine than usual at his wife’s request; 2) charge less
than the going rates for the drugs sold to her “nephew”; and 3) brag or do
“puffing” about his other drug deals because he was “simply a guppy pretending
to be a whale in order to impress his wife and her ‘nephew’ ... in hopes of
reconciliation.” M r. Velasquez further claimed he acted only as the “go-between”
with his supplier and wife.
At the beginning of the sentencing trial, the district court judge stated,
“I’ve read everything you’ve filed. Is there anything else you want to say?” M r.
Velasquez’s counsel argued against the two-level role adjustment, concentrating
on the fact M r. Velasquez only bragged about and participated in large drug deals
1 543 U.S. 220 (2005). 2 W hile M r. Velasquez explains he raised the issue of “sentencing entrapment” before the district court, nowhere in his brief on appeal does he ask us to consider the issue or does he cite legal or other authority in support of such a contention. For this reason, we decline to consider the issue, other than to note it lacks merit sufficient for resentencing.
-6- because he wanted to impress his w ife, and he did not need to hire M r. Lujan to
do counter-surveillance at the Farmer’s M arket because they moved to a second,
secluded area for the actual transaction. In support of these arguments, M r.
Velasquez testified at the sentencing hearing, resulting in the following colloquy
on the counter-surveillance issue:
Government: M r. Velasquez, you met your wife at the Farmer’s M arket because you wanted to make sure that she wasn’t being followed by law enforcement agents before you went to do the deal somewhere else; isn’t that right?
M r. Velasquez: No. That’s the only place that – Bloomfield is a small town. That’s the only – it’s that intersection in town. It’s the only big building, really.
Government: So why didn’t you just –
Court: Come on. I’ve been to Bloomfield. Don’t give me that malarkey.
M r. Velasquez: It’s the only grocery store there, sir.
Court: W ell, there are lots of other places you can meet other than the grocery store.
Later, when M r. Velasquez’s attorney continued to argue M r. Velasquez did not
supervise M r. Lujan because he conducted counter-surveillance at the Farmer’s
M arket and not the field where the drug transaction took place, the court
countered:
Aren’t you missing the point? M r. Lujan stated that M r. Velasquez told him to go to the area of the Farmer’s M arket and instructed him to look around the area. M r. Lujan stated: [“]He told me to look for
-7- a black Suburban because he knew the DEA Region II office utilized a black Suburban.[”] M r. Lujan then made this statement, “I’m just the eyes.” M r. Lujan, in his statement [said] M r. Velasquez gave him approximately half a gram of methamphetamine to go to the Farmer’s M arket and look for the black Suburban.
Again, when defense counsel suggested M r. Lujan was not being completely
truthful about conducting surveillance at the Farmer's M arket, and that
surveillance would only have made sense if M r. Lujan had been the “eyes” on the
dirt road near where the transaction took place, the district court judge disagreed,
stating:
That doesn’t make sense to me. I mean, if I’m going to go down some dirt road ... and make the deal, I want to be sure that where I’m going to meet the person, nobody is going to be there to follow me. That’s why he is the eyes there. So w hat you’re saying, to me, doesn’t really jibe very well.
The judge also observed that surveillance would not be needed on a dirt road in a
rural area, because one could easily see a cloud of dust if someone was
approaching, and further stated, “[D ]oesn’t it make sense that you search out first
to see where you’re going to pick the person up and see if there’s anybody there,
and then go to the secret place to do it?”
W ith respect to M r. Velasquez’s argument the circumstances warranted a
sentence below the Guidelines range because he was motivated to sell drugs to
impress his wife, the following colloquy with the court occurred:
-8- Defense Counsel: W e’re not claiming this w as somehow against his moral fiber, to sell these drugs. And certainly he did sell drugs to other people. ... And as to what he w as saying to his wife, you know , I would just say that when one person is trying to impress or get back together with his wife or in dating situations, people do tend to exaggerate their wealth or their influence. And certainly I think that –
Court: W ell, I don’t think that I ever did that when I was trying to get back with either of my other two wives. So I’m not sure that’s a correct statement, either.
At the conclusion of the sentencing hearing, the district court stated it
“reviewed the presentence report factual findings and ha[d] considered the
sentencing guideline applications and the factors set forth in 18 [U.S.C. §]
3553(a)(1) through (7).” It then determined the Guidelines sentencing range was
151 to 188 months and sentenced M r. Velasquez at the low end at 151 months on
each count, to run concurrently.
III. Discussion
On appeal, M r. Velasquez argues his sentence is unreasonable under 18
U.S.C. § 3553(a) because “atypical,” “unique,” “compelling,” or “anomalous”
circumstances exist to support a sentence lower than the Guidelines range.
According to him, these circumstances arose from his efforts to impress and
reconcile with his estranged wife, including the fact his drug offenses “resulted
-9- from his loyalty to his wife and his effort to help her,” the drug deals “did not
financially benefit him” because he sold the drugs to her “nephew” at cost, and
the drug deals “involved a considerably higher drug quantity than he would
otherwise have sold.” He also maintains his sentence is unreasonable and that
compelling circumstances exist for a below -Guidelines sentence based on M r.
Lujan’s limited “one-time surveillance” which was “very peripheral [in] nature,”
making his sentence “overly severe” and “disproportional to the extent of [his]
involvement.” In conjunction with these arguments, M r. Velasquez contends the
district court committed reversible error because it failed to address his
“meritorious argument[s]” and explicitly articulate the § 3553 factors it
considered when sentencing him.
W e review for reasonableness the sentence imposed and have determined a
presumption of reasonableness attaches to a sentence, like here, which is w ithin
the correctly-calculated Guidelines range. See United States v. Kristl, 437 F.3d
1050, 1053-54 (10th Cir. 2006) (per curiam). W e require reasonableness in tw o
respects – “the length of the sentence, as well as the method by which the
sentence was calculated.” Id. at 1055. If the district court “properly considers
the relevant Guidelines range and sentences the defendant within that range, the
sentence is presumptively reasonable,” but “[t]he defendant may rebut this
presumption by demonstrating that the sentence is unreasonable in light of the
-10- other sentencing factors laid out in § 3553(a).” Id. In determining whether the
district court properly considered the applicable Guidelines, we review its legal
conclusions de novo and its factual findings for clear error. Id. at 1054.
W e have held “[t]here is no question that, in addition to guiding our
reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.
§ 3553(a) must be considered by the district court itself when imposing a
sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.
2006). W hen the district court allows a defendant to make an argument that any
of these factors warrant a below-Guidelines sentence and then imposes a sentence
at the low end of the Guidelines range, we have said this “may fairly be read as a
functional rejection of [his] arguments and a denial of his request for a below-
Guidelines sentence.” Id. W hen addressing a district court’s consideration of the
§ 3553(a) factors, “[w ] do not require a ritualistic incantation to establish
consideration of a legal issue, nor do we demand that the district court recite any
magic words to show us that it fulfilled its responsibility to be mindful of the
factors that Congress has instructed it to consider.” United States v. Lopez-
Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation marks and citation
omitted), petition for cert. filed (U.S. Jul. 7, 2006) (No. 06-5217). W hile “we
will not demand that the district court recite any magic w ords” to support its
conclusions, neither w ill we “presume the district court weighed a party’s
-11- arguments in light of the § 3553(a) factors where the record provides no
indication that it did so and no clear explanation of the sentence imposed.”
Sanchez-Juarez, 446 F.3d at 1115-16 (quotation marks and citations omitted).
[W ]here a defendant has raised a nonfrivolous argument that the § 3553(a) factors warrant a below-Guidelines sentence and has expressly requested such a sentence, we must be able to discern from the record that the sentencing judge did not rest on the guidelines alone, but considered whether the guidelines sentence actually conforms, in the circumstances, to the statutory factors.
Id. at 1117 (quotation marks, alterations, and citation omitted). However,
“[w]hen the defendant has not raised any substantial contentions concerning non-
Guidelines § 3553(a) factors and the district court imposes a sentence within the
Guidelines range, our post-Booker precedents do not require the court to explain
on the record how the § 3553(a) factors justify the sentence.” Lopez-Flores, 444
F.3d at 1222.
W ith these principles in mind, we note that, unlike the case in Sanchez-
Juarez, the district court in this case explicitly stated it considered the factors in
§ 3553(a) 3 in rendering M r. V elasquez’s sentence. See Sanchez-
3 18 U.S.C. § 3553(a) provides, in part, that the court shall consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed – (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (continued...)
-12- Juarez, 446 F.3d at 1115. Thus, the record provides a clear “indication” it
considered the requisite factors in sentencing M r. V elasquez. Id. at 1116.
Nevertheless, M r. Velasquez contends the district court erred in failing to
address his “meritorious argument[s] for a below-Guidelines sentence” and
“individually address any of the statutorily enumerated [§ 3553(a)] factors or
explain the court’s application of them in arriving at the sentence imposed.” 4 W e
disagree. First, as demonstrated by the record, the district court clearly addressed
M r. Velasquez’s argument he did not supervise M r. Lujan. As evidenced by the
colloquy at the sentencing hearing, the district court credited M r. Lujan’s
statement M r. Velasquez directed him to provide counter-surveillance at the first
location and paid him with drugs, which was corroborated by agents who
3 (...continued) (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; ... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 4 M r. Velasquez did not explain, either at sentencing or on appeal, which of the § 3553(a) factors w arrant a below-Guidelines sentence. W e assume he is relying on § 3553(a)(1),which requires the district court to look at “the nature and circumstances of the offense.”
-13- followed M r. Lujan to the Farmer’s M arket and observed him driving around the
area. The district court also plainly rejected M r. Velasquez’s contention no
counter-surveillance was necessary at the first location when it explained it made
more sense to have counter-surveillance at the first location to ensure no one was
following the parties to the second location, especially when the second location
involved a rural setting where an approaching vehicle could more readily be seen.
Under these circumstances, we find the district court sufficiently addressed its
reasons for applying a two-level increase under § 3B1.1(c), and its determination
is reasonably supported by the record, as M r. Velasquez clearly gave “some form
of direction or supervision to someone subordinate in the criminal activity ....”
United States v. Backas, 901 F.2d 1528, 1530 (10th Cir. 1990). 5 W hile M r.
Velasquez contends the district court should have addressed his role adjustment in
terms of the factors in § 3553(a) because his sentence was overly severe based on
M r. Lujan’s one-time surveillance, his argument involves a specific guideline,
§ 3B1.1(c), which the district court explicitly addressed and rejected. In so
doing, it is clear the district court rejected any argument M r. Lujan’s singular
involvem ent created a circumstance under § 3553(a)(1) warranting a below-
Guidelines sentence, and no further explanation by the district court was needed
under the circumstances.
5 The Guidelines recommend a two-level increase if M r. Velasquez was an “organizer, leader, manager, or supervisor” in the criminal activity. See U.S.S.G . § 3B1.1(c).
-14- Next, the district court allowed M r. Velasquez to make his argument that
“unique” circumstances w arranted a below-Guidelines sentence based on his
efforts to reconcile with and impress his wife, as demonstrated by the alleged low
cost and large quantity of drugs sold to her “nephew” and M r. Velasquez's
supposed exaggeration about other drug transactions. Thus, when the district
court imposed a sentence at the low end of the Guidelines range, it was “a
functional rejection of [his] arguments and a denial of his request for a below-
Guidelines sentence.” Sanchez-Juarez, 446 F.3d at 1115. It is also clear M r.
Velasquez did not raise any substantial contentions which would require the
district court to explain on the record how the nature and circumstances of the
offense, under § 3553(a)(1), justified the sentence imposed. Lopez-Flores, 444
F.3d at 1222. This is because M r. Velasquez has provided no legal or other
support, either at the district court level or on appeal, for a below-Guidelines
sentence based on one’s actions in committing a criminal offense for the purpose
of impressing his w ife. Like the district court, which considered and obviously
rejected this frivolous argument, we find it lacks merit and did not require any
further discussion of § 3553(a) factors.
Finally, because the district court properly considered the relevant
Guidelines range and sentenced the defendant within that range, the sentence is
presumptively reasonable. See Kristl, 437 F.3d at 1055. M r. Velasquez has
-15- clearly not rebutted this presumption by demonstrating the sentence is
unreasonable in light of the sentencing factors in § 3553(a). Id.
IV. Conclusion
For these reasons, w e A FFIRM M r. V elasquez’s conviction and sentence.
Entered by the C ourt:
W ADE BRO RBY United States Circuit Judge
-16-