United States vs. Becerra-Montes, No. 05-8112 (10th Cir. 2006)

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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 Clerk of Court TENTH CIRCUIT U N ITED STA TES O F A M ER ICA, Plaintiff - Appellee, v. No. 05-8112 D. W yoming RAM ON BECERRA-M ONTES, a/k/a Zoilo Cruz-Carillo, (D.C. No. 05-CR-28-02-ABJ) 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. BecerraM 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 -2- 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 -3- 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 -4- 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 -5- 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 -6-

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