United States v. Jesus Arreola-Beltran , 534 F. App'x 630 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30143
Plaintiff - Appellee, D.C. No. 1:11-cr-00096-BLW-1
v.
MEMORANDUM*
JESUS OCTAVIO ARREOLA-
BELTRAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted July 9, 2013**
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Jose Octavio Arreola-Beltran (“Arreola-Beltran”) appeals two separate two-
level upward adjustments to his sentence, and the substantive reasonableness of his
sentence. He was convicted by a jury for possession with intent to deliver
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
methamphetamine and conspiracy with intent to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Arreola-Beltran was convicted
in a joint-trial with co-defendant Lucio Landeros-Valdez (“Landeros-Valdez”).
The third participant in the crime, Jose Gabriel Virgen (“Virgen”), cooperated with
the government and testified at the joint-trial. We have jurisdiction under 28
U.S.C. § 1291 and we affirm.
1. Arreola-Beltran appeals a two-level upward adjustment for his role as an
“organizer, leader, manager, or supervisor in any criminal activity” of at least “one
or more other participants.” U.S.S.G. § 3B1.1(c) cmt. n.2. We review the district
court’s factual finding that Arreola-Beltran was an organizer or leader of criminal
activity for clear error. United States v. Rivera, 527 F.3d 891 (9th Cir. 2008). We
review the application of the Sentencing Guidelines to the facts for abuse of
discretion. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
Here, the district court did not err in finding that there were critical facts that
corroborated Jose Gabriel Virgen’s (“Virgen”) testimony that Arreola-Beltran was
the leader of the small drug organization: (1) Arreola-Beltran was the only co-
defendant to have phone contact with the confidential informant and undercover
officers; (2) Arreola-Beltran told the confidential informant he was sending Virgen
to the sale because Arreola-Beltran was nervous that Arreola-Beltran, Landeros-
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Valdez, and Virgen were being followed; (3) at the controlled sale Virgen told
Sargent Banda that he needed to confer with Arreola-Beltran about making a larger
sale; and (4) at the time of arrest Arreola-Beltran possessed the monetary proceeds
from the controlled sale.
The district court did not abuse its discretion in applying the two-level
upward adjustment because evidence was sufficient to “sustain a finding” that
Arreola-Beltran “exercised some control over others involved in the commission of
the offense.” United States v. Avila, 95 F.3d 887, 889 (9th Cir. 1996) (internal
citation omitted).
2. Arreola-Beltran appeals an additional two-level upward adjustment to his
sentence for obstruction of justice. We review “a district court’s determination of
the reliability of evidence used at sentencing for an abuse of discretion.” United
States v. Felix, 561 F.3d 1036, 1040 (9th Cir. 2009) (citing United States v. Marin-
Cuevas, 147 F.3d 889, 895 (9th Cir. 1998)).
At sentencing, the district court sua sponte raised the issue of obstruction of
justice because Arreola-Beltran provided false information to a probation officer
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during the preparation of his Presentence Report.1 See § 3C.1 cmt. n.4(H)
(obstruction of justice sentencing enhancement applies where defendant provides
materially false information to probation officer with respect to presentence
investigation).
Here, there is ample evidence that Arreola-Beltran knew of the drugs and
willingly participated in the criminal activity. When he was interviewed by the
probation officer, against the advice of counsel, Arreola-Beltran stated that he did
not know there were drugs in Virgen’s car until he, Landeros-Valdez, and Virgen
were arrested. At his own sentencing hearing, however, Arreola-Beltran testified
that he found out about the drugs when he, Landeros-Valdez, and Virgen arrived in
Oregon, and that Virgen asked Arreola-Beltran to help with the sale in exchange
for money. Thus, because of Arreola-Beltran’s own admission, the district court
did not abuse its discretion in finding that Arreola-Beltran obstructed justice by
providing materially false information to the probation officer preparing his
Presentence Report.
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The Government had previously raised a two-level adjustment for
obstruction of justice on the independent ground that Arreola-Beltran allegedly
made threats to co-defendant Virgen. Arreola-Beltran argues that there was
insufficient evidence to support these allegations. We do not reach this argument.
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3. We review the substantive reasonableness of the 240 month sentence
imposed on Arreola-Beltran for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc) (citations omitted).
In Carty, we stated that “[t]he overarching statutory charge for a district
court is to ‘impose a sentence sufficient, but not greater than necessary’ to reflect
the seriousness of the offense, promote respect for the law, and provide just
punishment; to afford adequate deterrence; to protect the public; and to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment.” 520 F.3d at 991 (quoting 18 U.S.C. §§ 3553(a) and
(a)(2)).
At sentencing, the district court explained the basis for Arreola-Beltran’s
240 month sentence sufficiently to permit meaningful appellate review. Id. at 992.
The district court reasoned that Arreola-Beltran’s 240 month Guidelines-range
sentence was appropriate because: (1) co-defendant Virgen cooperated during the
investigation, whereas Arreola-Beltran did not; (2) Arreola-Beltran pled guilty to
drug trafficking in Idaho in 2008 but left the jurisdiction before the charge could be
effectuated; (3) Arreola-Beltran lacked a record of employment even though he has
been in the United States on and off since he turned eighteen, indicating that his
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sole occupation is dealing methamphetamine; and (4) methamphetamine is a very
serious drug that destroys many lives. Thus, the district court did not abuse its
discretion when it imposed a 240 month sentence on Arreola-Beltran.
AFFIRMED.
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