United States v. Becerra-Montes , 181 F. App'x 743 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
May 26, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-8112
v. D. W yoming
RAM ON BECERRA-M ONTES, a/k/a (D.C. No. 05-CR-28-02-ABJ)
Zoilo Cruz-Carillo,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
M r. Ramon Becerra-M ontes appeals his sentence, contending that it should
have been reduced under U nited States Sentencing Guidelines (U SSG) § 3B1.2
because he was a minimal participant in the drug-trafficking crimes to which he
pleaded guilty. See USSG § 3B1.2 (providing four-level reduction for “minimal
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except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.
participant”; two-level reduction for “minor participant”; and three-level
reduction for “cases falling between”). Because the district court could properly
find that the evidence in the record did not establish that M r. Becerra-M ontes was
a minimal participant, we affirm the judgment of the district court.
I. B ACKGR OU N D
M r. Becerra-M ontes pleaded guilty to one count of conspiracy to possess
with intent to distribute both methamphetamine and heroin; one count of
possession with intent to distribute methamphetamine; and one count of
possession with intent to distribute heroin. Before sentencing he filed a motion
requesting a four-level reduction in his offense level because he was a minimal
participant in the crimes. See id.
According to the presentence report, on December 17, 2004, Simon
Aleman-Blanco and M r. Becerra-M ontes were stopped for following too closely
while traveling on I-80 near Cheyenne, W yoming. The vehicle they were
traveling in was registered to Claudia Campos. In response to the trooper’s
questions, Aleman-Blanco stated that the owner of the car w as named “Gloria,”
but he did not remember her last name or address, and that he and M r. Becerra-
M ontes were traveling to Nebraska to find work. Questioned separately,
M r. Becerra-M ontes also told the trooper that they were on their way to Nebraska
to look for w ork. He correctly named the owner of the vehicle as “Claudia,”
though he said that he knew her only vaguely and that she was a friend of
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Aleman-Blanco. Eventually, both consented to a search of the vehicle, which
revealed a hidden compartment beneath the dashboard containing 11 separate
packages of controlled substances..
A law -enforcement agent was sent to interview Claudia C ampos. She said
that she had met M r. Becerra-M ontes through his brother, Carlos Contreras, her
former boyfriend. According to Campos, in the summer of 2004 Contreras
discovered the hidden compartment while installing a stereo in the vehicle. That
October M r. Becerra-M ontes told Campos that he wanted to buy the car, and in
early November he brought Aleman-Blanco to meet Campos. Campos discussed
the hidden compartment with Aleman-Blanco, who then purchased the car from
her.
At his change-of-plea hearing, M r. Becerra-M ontes admitted only to the
basic facts: that he and Aleman-Blanco were stopped while transporting drugs;
that he knew the drugs were there and had helped drive; and that a search of the
vehicle revealed 3.7 pounds of methamphetamine and 8 pounds of heroin. W hen
the court asked him about Campos and Contreras, he responded, “I w as only
coming to plead guilty for the drugs in the car. W hat am I supposed to say about
that?” R. Vol. 2 at 20-21. In his statement filed before sentencing, he again said
that he and Aleman-Blanco had agreed to go to Nebraska to look for work, and
that Aleman-Blanco had borrowed the car from Campos. He did not know about
the hidden compartment, he said, and “first became aware that there were drugs in
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the car w hile w e were on the road. Aleman said to me . . . that there are drugs in
the car.” R. Vol. 6 at 3-4.
The district court concluded that M r. Becerra-M ontes had not demonstrated
that he was a minimal participant because there were too many “large holes and
unaccounted for time and activity during a critical period.” R. Vol. 3 at 22-23.
M r. B ecerra-M ontes now appeals that decision.
II. D ISC USSIO N
W e review sentences under a reasonableness standard “guided by the
factors set forth in 18 U.S.C. § 3553(a),” including the Guidelines. United States
v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “A sentence cannot . . . be
considered reasonable . . . if it was based on an improper determination of the
applicable Guidelines range.” Id. at 1055. “[I]n considering the district court’s
application of the Guidelines, we review factual findings for clear error and legal
determinations de novo.” Id. at 1054. “A trial court’s findings concerning a
defendant’s role in a particular offense are treated by an appellate court as factual
findings, which are subject to a deferential review under the clearly erroneous
standard.” United States v. Santistevan, 39 F.3d 250, 253 (10th Cir. 1994)
(internal quotation marks omitted).
“It is the defendant’s burden to establish, by a preponderance of the
evidence, his entitlement to an offense level reduction under § 3B1.2,” id. at 254,
and “the court, in weighing the totality of the circumstances, is not required to
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find, based solely on the defendant’s bare assertion, that such a role adjustment is
warranted,” USSG § 3B1.2 cmt. 3(C). There is nothing in the record indicating
M r. Becerra-M ontes’s role was minor, other than his “bare assertion.” See United
States v. Salazar-Samaniega, 361 F.3d 1271, 1278 (10th Cir. 2004) (“W here there
are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous. A defendant’s own testimony that others w ere more
heavily involved in a criminal scheme may not suffice to prove his minor or
minimal participation, even if uncontradicted by other evidence.” (internal
quotation marks and citation omitted)).
M r. Becerra-M ontes tries to turn this lack of evidence on its head,
suggesting that it cuts in favor of a minor-participant reduction because it show s
that he had limited knowledge of the crime. “The district court’s finding of
limited information results directly from Becerra-M ontes’ lack of knowledge or
understanding of the scope and structure of the enterprise and of the activities of
others.” Aplt. Br. at 16. It surely cannot be the case, however, that a defendant
who claims to have limited knowledge must therefore be a minor participant in
the crime. The district court could quite properly infer that M r. Becerra-M ontes
simply did not want to implicate others and disclose the full extent of his
involvement.
The district court’s finding that M r. Becerra-M ontes had not demonstrated
that he was a minor participant was not clear error. The Guidelines range was
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therefore properly calculated and considered, and M r. Becerra-M ontes does not
otherw ise challenge his sentence as unreasonable. Kristl, 437 F.3d at 1054(sentence within a properly calculated Guidelines range is entitled to a
presumption of reasonableness).
III. C ON CLU SIO N
W e AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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