United States v. Francisca Rios ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1146
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Francisca Yadira Rios
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: December 14, 2020
Filed: April 28, 2021
[Published]
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Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
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PER CURIAM.
Francisca Yadira Rios appeals her below-Guidelines sentence of 157 months’
imprisonment for conspiracy to distribute methamphetamine. She argues that the
district court1 erred by denying her safety-valve relief and imposing an unreasonable
sentence. We affirm.
I. Background
Rios’s brother, Fidel Rios (“Fidel”) was convicted on federal drug charges.
While awaiting sentencing in the Polk County Jail, Fidel attempted to set up a
shipment of methamphetamine to Des Moines, Iowa. A confidential source (CS) in
the jail with Fidel arranged for the recipient of the shipment to be an undercover law
enforcement officer. The officer assumed the undercover persona of “Bobby.”
“Bobby” was to pay $235,000 in exchange for 40 pounds of methamphetamine. The
CS reported that the shipment would come from Los Angeles, California, to Des
Moines, Iowa, and “that Fidel’s family was ‘deeply involved’ in the forthcoming
transaction.” Presentence Investigation Report (PSR) at 4, United States v. Rios, No.
4:18-cr-00203-SMR-HCA (S.D. Iowa. 2020), ECF No. 144.
The CS gave Fidel a phone number for “Bobby.” Fidel then called Rios—his
sister who lived in Washington state—and gave her “Bobby’s” phone number. During
a recorded jail call, Fidel told Rios that “Bobby” would travel to Los Angeles to pick
up the methamphetamine.
Ultimately, the CS advised the undercover officer that the transaction would
be run through Rios, also known as “Pancha.” The plan was for “Bobby” to travel to
Los Angeles to complete the drug transaction. The same day that the CS advised the
undercover officer of the plan, Fidel—still jailed—called “Cupido” in Mexico and
stated that “his ‘homie was going to visit Aunt Angela.’” Id. “[H]omie” referred to
the undercover officer known as “Bobby,” and “Aunt Angela” referred to “Los
Angeles.” Id. “Cupido” told Fidel to have “Pancha” call him “because they could talk
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The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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better (as [Rios] was not in custody).” Id. “[T]hree minutes later,” Fidel called Rios.
Sentencing Hr’g Tr. at 38, United States v. Rios, No. 4:18-cr-00203-SMR-HCA (S.D.
Iowa. 2020), ECF No. 177. “Using coded language, Fidel directed [Rios] to call down
to Mexico and to get in contact with ‘Bobby.’” PSR at 4.
The next day, Rios called the undercover officer several times and discussed
drug quantity and prices. The officer asked Rios how much they were talking about
and suggested 40 pounds. “[Rios] replied that they could do either ‘40’ or ‘60’
[pounds].” Id. at 5 (second alteration in original). The officer then indicated that he
had the “$235,000” for 40 pounds of methamphetamine. Id. The officer and Rios later
discussed where the deal would happen. The officer suggested Iowa; Rios stated the
deal would occur in Los Angeles.
Over the next few weeks, details of the deal were worked out. According to the
plan, “Bobby” would travel to California. Upon arrival, “Bobby” would pick up
money that he had shipped in the mail and notify Rios that he was ready to proceed.
The deal was planned for around August 10, 2018. Prior to that date, Rios and Fidel
were in frequent contact and used coded language—including baseball references—to
discuss the impending deal. Fidel told Rios, for example, “that the ‘boys bought the
tickets for the first game,’” meaning that “Bobby” would be coming to California. Id.
In another call, Fidel directed Rios to tell “Bobby” that if things went well, they could
“go to away games too,” meaning deliver to Iowa in the future. Id.
On August 9, 2018, Rios told the undercover officer that they were “a go” for
the next day and things were “all set.” Id. The next day, Rios texted the officer that
things were “running smooth” and that a male would be contacting him soon. Id. A
short time later, the officer received a phone call from a man, and the officer told him
the money had arrived and he would be on his way soon. The man later arrived at a
pre-arranged meet location with approximately 20 pounds of methamphetamine.
Officers then announced their presence.
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Rios was charged with conspiracy to distribute at least 50 grams of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Rios
pleaded guilty pursuant to a written plea agreement. After pleading guilty, Rios gave
a proffer interview to Des Moines Police Officer Benjamin Carter. During that
interview, Rios claimed this transaction was her first involvement in drug trafficking.
She maintained that she did not know any of the parties involved in the transaction
other than her brother but “that the people involved trusted her nonetheless.”
Sentencing Hr’g Tr. at 28. Rios asserted that her involvement in the transaction was
limited to passing phone numbers between unknown people at her brother’s request.
Rios denied knowing anyone in Mexico involved with drug trafficking and claimed
that she did not know who Fidel contacted in Mexico regarding the deal.
Prior to sentencing, Rios argued she was eligible for safety-valve relief. The
government disputed Rios’s eligibility; it contended that Rios failed to provide
complete and truthful information during her proffer interview. The government
noted, for example, that Rios’s use of highly coded drug language to oversee a
20-pound methamphetamine transaction was inconsistent with her claim of no prior
involvement in drug trafficking. The government also noted that the evidence
indicated Rios’s familiarity with numerous people involved in the deal, including
“Cupido.”
At sentencing, the parties offered evidence on the issue of safety-valve
eligibility. Rios testified that she was completely truthful during her proffer interview.
However, Officer Benjamin Carter, the case agent, testified to numerous examples of
inconsistent, incomplete, and untruthful information Rios provided during the
interview. Officer Carter testified that, during the conversations he had with Rios in
his undercover capacity, it appeared that “[s]he was making the calls as far as the
decisions in the transaction.” Sentencing Hr’g Tr. at 24. Officer Carter noted that the
CS had identified “Pancha”—Rios’s nickname—as “the individual running the show
out in Washington and making the connections.” Id. at 28. Officer Carter also
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testified about Fidel’s phone call to “Cupido,” in which Fidel advised “Cupido” to
“call Pancha” when they were arranging the drug deal. Id. at 31. The government also
offered transcripts of numerous recorded phone calls between Fidel and Rios. Officer
Carter testified that those calls involved “the most highly sophisticated coded
language [he] ha[d] seen to date.” Id. at 32.
After hearing the evidence, the district court denied Rios safety-valve relief.
The court found Officer Carter’s testimony credible and Rios’s testimony not
credible. First, the court pointed to the “highly coded, very sophisticated, almost
casual conversations between [Fidel and Rios] about significant drug-trafficking
activities.” Id. at 45. The court found it implausible that Rios had never previously
engaged in a drug-trafficking transaction based on her language. Second, the court
found “a clear mutual understanding of terms” and “people.” Id. The court found it
“inconceivable” that Rios’s involvement was limited to passing numbers between
unknown people given her understanding of the transaction and her familiarity with
the parties, including “Cupido.” Id. at 45–46. The court found by a preponderance of
the evidence that Rios failed to establish her eligibility for a safety-valve reduction.
The court adopted the Guidelines calculations contained in the PSR. Rios’s
advisory Guidelines range was 210 to 262 months’ imprisonment. The district court,
citing a policy disagreement with the drug guidelines, varied downward and
sentenced Rios to 157 months’ imprisonment.
II. Discussion
On appeal, Rios argues that the district court erred by denying her safety-valve
relief and imposing an unreasonable sentence of 157 months’ imprisonment.
A. Safety-Valve Relief
Rios contends that the district court erroneously denied her safety-valve relief.
See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). “These provisions allow a district court
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to impose a sentence below the statutory minimum sentence if the defendant satisfies
each of five requirements.” United States v. Delgrosso, 852 F.3d 821, 829 (8th Cir.
2017). “The only requirement at issue in this case is the final one, that the defendant
‘truthfully provide[] to the Government all information and evidence the defendant
has concerning the offense . . . .’” United States v. Cervantes, 929 F.3d 535, 538 (8th
Cir. 2019) (alterations in original) (quoting 18 U.S.C. § 3553(f)(5)). The defendant
bears the burden of proving that she has satisfied this requirement. Id. “We review for
clear error a district court’s findings as to the completeness and truthfulness of a
defendant’s safety-valve proffer.” United States v. Bolanos, 409 F.3d 1045, 1047 (8th
Cir. 2005).
“A defendant must prove through affirmative conduct, that he or she gave the
Government truthful information and evidence about the relevant crimes before
sentencing.” United States v. Soto, 448 F.3d 993, 996 (8th Cir. 2006) (cleaned up).
“In making its assessment of the truthfulness of a safety valve proffer, the district
court is entitled to draw reasonable inferences from the evidence.” United States v.
Alvarado-Rivera, 412 F.3d 942, 948 (8th Cir. 2005) (en banc). A district court’s
finding that a defendant’s “proffered testimony was not sufficiently credible to meet
[the defendant’s] burden for receiving safety-valve relief” is a “credibility finding”
that “[w]e generally do not disturb.” Soto, 448 F.3d at 996.
While Rios argues that “no concrete evidence” exists “that she had ever been
involved in drug trafficking,” Appellant’s Br. at 9, the district court drew “reasonable
inferences from the evidence,” Alvarado-Rivera, 412 F.3d at 948, to support its
finding that Rios was not credible. First, Rios claimed in her proffer interview that
the drug transaction was her first foray into drug trafficking. But the district court
cited transcripts of the recorded calls between Fidel and Rios. It characterized these
calls as involving “highly coded, very sophisticated, almost casual conversations
between two people about significant drug-trafficking activities” involving “hundreds
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of thousands of dollars.” Sentencing Hr’g Tr. at 45. From these calls, the district court
could reasonably infer Rios’s prior involvement in drug trafficking.
Second, Rios claimed during her proffer interview that she did not know any
of the parties involved in the transaction other than her brother, but “that the people
involved trusted her nonetheless.” Id. at 28. The evidence, however, undermines
Rios’s claim that she did not know the parties involved. As the district court noted,
the calls between Fidel and Rios reflect her “clear mutual understanding” of people
involved, including “Cupido.” Id. at 45. For example, during the call between Fidel
and “Cupido,” “Cupido” instructed Fidel to have Rios—who he referred to by her
nickname “Pancha”—call him so that “they could talk better (as [Rios] was not in
custody).” PSR at 4. “[T]hree minutes later,” Fidel called Rios. Sentencing Hr’g Tr.
at 38. “Using coded language, Fidel directed [Rios] to call down to Mexico and to get
in contact with ‘Bobby.’” PSR at 4.
Third, Rios claimed in her proffer interview that her involvement in the
transaction was limited to passing phone numbers between unknown people. The
district court found her claim “inconceivable” given her familiarity with the parties.
Sentencing Hr’g Tr. at 46. Again, the evidence shows that “Cupido” directed Fidel
to have “Pancha” call him about the drug deal, followed by Fidel’s immediate call to
Rios to report his conversation with “Cupido.”
Accordingly, we hold that the record amply supports the district court’s
finding that Rios failed to provide complete and truthful information. Therefore, we
affirm the district court’s denial of safety-valve relief to Rios.
B. Substantive Reasonableness
Rios next argues that her 157-month sentence is substantively unreasonable.
First, she asserts that the nature and circumstances of the offense favored a downward
variance because her “involvement in this conspiracy was one where she never
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touched a gram of methamphetamine or a dollar of cash.” Appellant’s Br. at 12.
Second, she notes that she “turn[ed] herself in at the U.S.-Mexico border” despite
knowing she would be apprehended by authorities. Id. Third, she asserts that she
engaged in criminal activity not for profit but instead to help her brother.
We review the substantive reasonableness of a sentence “under a deferential
abuse-of-discretion standard.” United States v. Fry, 792 F.3d 884, 892 (8th Cir.
2015). Under this deferential standard, “the [district] court has substantial latitude to
determine how much weight to give the various factors under § 3553(a).” United
States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009). “A district court abuses
its discretion and imposes an unreasonable sentence when it fails to consider a
relevant and significant factor, gives significant weight to an irrelevant or improper
factor, or considers the appropriate factors but commits a clear error of judgment in
weighing those factors.” United States v. Williams, 934 F.3d 804, 808 (8th Cir. 2019)
(quotation omitted).
We conclude that Rios’s 157-month sentence—a 53-month downward variance
from the Guidelines range—is substantively reasonable. The district court’s sentence
reflects full compliance with the applicable sentencing statutes and Guidelines
provisions, taking into account the specific characteristics of this defendant, the
circumstances, and nature of the offense. As a result, we hold that the district court
did not abuse its discretion in sentencing Rios to 157 months’ imprisonment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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