United States v. Nohel Rodriguez ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1272
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United States of America
Plaintiff - Appellee
v.
Nohel Reyna Rodriguez
Defendant - 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 9, 2019
Filed: April 15, 2020
[Unpublished]
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Before SMITH, Chief Judge, LOKEN and GRASZ, Circuit Judges.
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PER CURIAM.
Nohel Reyna Rodriguez (“Reyna”) pleaded guilty to conspiracy to distribute
over 500 grams of methamphetamine mixture and 50 grams of actual
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. At
sentencing, over Reyna’s timely objections, the district court1 determined that his
base offense level was 36 based on its drug quantity finding, imposed a two-level
aggravating role enhancement, and found that Reyna did not qualify for a safety valve
reduction or a downward adjustment for acceptance of responsibility. This resulted
in an advisory guidelines sentencing range of 235 to 293 months imprisonment.
Reyna appeals his 235-month sentence, challenging the drug quantity, aggravating
role, safety valve, and acceptance of responsibility rulings. Reviewing for clear error,
we affirm.
I. The Drug Quantity Issue
Reyna’s Presentence Investigation Report (“PSR”), in ten factually detailed
paragraphs, concluded that his offense involved 19,305.2 grams of methamphetamine
mixture, producing a base offense level of 36 (at least 15 but less than 45 kilograms
of methamphetamine). See USSG § 2D1.1(a)(5), (c)(2). The PSR attributed specific
quantities of methamphetamine mixture to distinct transactions: (i) ten pounds (4,536
grams) a confidential informant (“CI”) received from Reyna in the first half of 2017
for distribution; (ii) 193 grams from controlled buys and drug payments by the CI in
June 2017; (iii) ten pounds Reyna sold to customer Jack Carr, disclosed to officers
by co-conspirator Mark Aguirre after Aguirre was arrested fleeing an attempted
traffic stop on June 28; (iv) 61 grams co-conspirator Kevin Nunez delivered on July
24 after the CI arranged the purchase in a recorded call to Reyna; and (v) twenty-two
pounds (9,979.2 grams) found in a Nissan Altima registered to Reyna on August 10
after Nunez, arrested carrying a Mexican identification card for Reyna, said he
worked for Reyna and led officers to the Altima which he said contained a recent
shipment. In addition, the PSR stated that Reyna was a passenger in Aguirre’s
vehicle on June 28 and escaped on foot when the fleeing vehicle was finally stopped.
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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A warrant search of Reyna’s residence after Aguirre’s arrest yielded $18,932 in a
safe, and $2,000 of the CI’s buy money in Reyna’s wife’s purse.
Reyna objected to the PSR’s drug quantity calculations, arguing that only 500
grams of methamphetamine should be attributable to him because the PSR did not
describe activities that were reasonably foreseeable to Reyna. At the sentencing
hearing, the government presented testimony from two witnesses. Drug Enforcement
Administration (“DEA”) Special Agent Thomas Smith described the DEA’s lengthy
investigation and surveillance of Reyna, corroborating the quantity-related paragraphs
in the PSR. He also described a proffer interview in which Reyna denied directing
Nunez to distribute methamphetamine. Nunez, now a cooperating defendant, testified
that he worked for Reyna, acting as his translator during drug sales, delivering pounds
of methamphetamine to Reyna’s customers, and collecting drug debts on behalf of
Reyna. The defense called no witnesses. The district court found both Smith and
Nunez credible and found that Smith’s testimony was corroborated by the search of
Reyna’s residence, recorded phone calls, controlled purchases, the use of two vehicles
registered to Reyna, GPS tracker results, the seizure of twenty-two pounds of
methamphetamine from Reyna’s car, and phone records linking Reyna to identified
co-conspirators. Based on this evidence and Reyna’s admissions to some conduct
described in the PSR, the court found that at least 15 kilograms of methamphetamine
were attributable to Reyna. We review this drug quantity finding for clear error.
United States v. Yellow Horse, 774 F.3d 493, 496 (8th Cir. 2014).
On appeal, Reyna argues the district court clearly erred because the government
only proved that 500 grams of methamphetamine can be attributed to him, resulting
in a base offense level of 30. See USSG § 2D1.1(a)(5), (c)(8). The government
bears the burden of proving drug quantity by a preponderance of the evidence. “[T]he
court may make a specific numeric determination of quantity based on imprecise
evidence so long as the record reflects a basis for the court’s decision.” Yellow
Horse, 774 F.3d at 497 (quotation omitted). In sentencing for a drug conspiracy
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offense, the court “may consider all transactions known or reasonably foreseeable to
the defendant that were made in furtherance of the conspiracy.” United States v.
Whirlwind Soldier, 499 F.3d 862, 872 (8th Cir. 2007), cert. denied, 552 U.S. 1209
(2008) (quotation omitted).
Reyna argues the district court clearly erred because its drug quantity finding
was based on hearsay statements of co-conspirators who did not testify at the
sentencing hearing and unreliable testimony from Nunez. It is well-settled that a
district court “may rely on hearsay evidence for sentencing purposes, as long as it has
sufficient indicia of reliability to support its probable accuracy.” United States v.
Moralez, 808 F.3d 362, 368 (8th Cir. 2015) (quotations omitted). Drug quantity
determinations may be based on the testimony of a co-conspirator alone. United
States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012), cert. denied, 568 U.S. 1074
(2012). Here, the district court found both Special Agent Smith and Nunez credible,
a finding nearly unreviewable on appeal. See United States v. Mannings, 850 F.3d
404, 409 (8th Cir. 2017). Although Smith’s testimony included hearsay from co-
conspirators and investigating officers, the district court found it was corroborated
by Nunez and other evidence including recorded calls, phone records, controlled
purchases, vehicles registered to Reyna, and the seizure of methamphetamine and
cash from Reyna’s residence and vehicle. The district court did not clearly err in
finding, for base offense level purposes, that Reyna’s offense involved more than 15
kilograms of methamphetamine mixture based on detailed fact recitals in the PSR, to
which there were few specific objections, and the corroborated testimony of two
witnesses the court expressly found credible.
III. Remaining Guidelines Issues
Reyna challenges district court rulings that imposed a two-level aggravating
role enhancement, denied safety valve relief, and declined to give Reyna an
adjustment for acceptance of responsibility. These are fact findings we review for
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clear error. See Moralez, 808 F.3d at 367 (aggravating role); United States v. Soto,
448 F.3d 993, 995 (8th Cir. 2006) (safety valve proffer); United States v. Greger, 339
F.3d 666, 672 (8th Cir. 2003) (acceptance of responsibility).
A. Aggravating Role. The district court imposed a two-level enhancement
for Reyna’s role as “an organizer, leader, manager, or supervisor” of a criminal
conspiracy. See USSG § 3B1.1(c). These terms are interpreted broadly. See United
States v. Molina-Perez, 595 F.3d 854, 862 (8th Cir. 2010). The enhancement is
appropriate even if the defendant only supervised or managed one other participant
in the conspiracy. United States v. Gamboa, 701 F.3d 265, 267 (8th Cir. 2012).
Reyna argues the evidence fails to show that he exercised control and authority
over others; at most, the evidence shows that he was a contact person. Paragraph 8
of the PSR stated Nunez collected a $3,950 drug debt from the CI “on behalf of
Reyna Rodriguez.” The district court correctly noted that “paragraph 8 of the
presentence report all by itself would support an aggravating role adjustment here.”
Additionally, paragraph 14 of the PSR stated that on another day, Reyna sent Nunez
to deliver 61 grams of methamphetamine to the CI, driving a vehicle registered to
Reyna. Beyond these paragraphs of the PSR, to which Reyna did not object, Special
Agent Smith and Nunez testified that Reyna directed Nunez to deliver drugs and
collect money, testimony corroborated by surveillance and other evidence. The
district court did not clearly err in assessing an aggravating role enhancement.
B. Safety Valve. Reyna had the burden to prove by a preponderance of the
evidence that he met the five requirements enumerated in 18 U.S.C. § 3553(f) and
USSG § 5C1.2(a) to qualify for a safety valve sentencing reduction. Soto, 448 F.3d
at 995. The district court first ruled that Reyna was ineligible for safety valve relief
because he played an aggravating role in the conspiracy. See § 3553(f)(4). As we
have upheld the aggravating role enhancement, the denial of safety valve relief must
likewise be upheld. In addition, the district court found, based on Special Agent
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Smith’s credible testimony, that Reyna did not qualify for safety valve relief because
he was not fully truthful during his safety valve proffer interview. See § 3553(f)(5).
Smith testified that Reyna falsely denied directing Nunez or anyone else to deliver
methamphetamine, said he only sold Jack Carr an ounce or two of methamphetamine,
and lied about the source of the cash found in his safe, how his wife came to have
serialized buy money in her purse, and the quantities of methamphetamine he sold.
This finding was not clearly erroneous. Reyna was properly denied a safety valve
reduction.
C. Acceptance of Responsibility. The PSR recommended that Reyna receive
a three-level reduction for acceptance of responsibility because he “assisted
authorities in the investigation or prosecution of [his] misconduct by timely notifying
authorities of the intention to enter a guilty plea.” See USSG § 3E1.1. However,
after summarizing the evidence at the end of the sentencing hearing, the district court
denied the reduction, explaining:
This is a defendant flat-out denying things that are, in my view,
quite obviously true, obviously well-corroborated, and in my view, that
is frivolously contesting and falsely denying the offense conduct and the
relevant conduct here.
Acceptance of responsibility is the defendant’s burden he has to
carry forward showing that he is entitled to it, and I find here that he has
not met his burden by a preponderance of the evidence.
“A defendant who falsely denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner inconsistent with acceptance of
responsibility, but the fact that a defendant’s challenge is unsuccessful does not
necessarily establish that it was either a false denial or frivolous.” USSG § 3E1.1,
comment. (n.1(A)). Here, the district court expressly found that Reyna’s contesting
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of the drug quantity attributable to him was frivolous, involving false denials of
conduct clearly established by the evidence.
On appeal, Reyna argues that he merely questioned the credibility of witnesses
and subjected their testimony to cross-examination, which is not a frivolous endeavor.
However, Reyna did not deny the factual recitals in the PSR’s drug quantity
paragraphs. Rather, he asserted the transactions were not reasonably foreseeable to
him, in the face of substantial, corroborated, and undisputed testimony to the
contrary. Indeed, when asked by the district court to identify the foreseeable
transactions on which Reyna was basing his contention for a 500 gram finding,
defense counsel had no answer. It is not clear error for a district court to deny a
reduction for acceptance of responsibility when the defendant denies large amounts
of relevant conduct that the district court finds to be well-proven. See, e.g., United
States v. Jones, 539 F.3d 895, 898 (8th Cir. 2008). To receive the reduction, “the
defendant must accept responsibility for all of the conduct that is part of his
conviction.” United States v. Erhart, 415 F.3d 965, 971 (8th Cir. 2005), abrogated
on other grounds, United States v. White, 863 F.3d 784 (8th Cir. 2017) (en banc).
“Because the sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility, the determination of the sentencing judge is entitled to
great deference on review.” United States v. Davis, 875 F.3d 869, 875 (8th Cir. 2017),
cert. denied, 138 S. Ct. 2585 (2018) (cleaned up). The district court did not clearly
err in denying Reyna an acceptance of responsibility reduction.
The judgment of the district court is affirmed.
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