United States v. Velasquez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-2087
(D . N.M .)
ELOY VELA SQUEZ, (D.Ct. No. CR-05-799 JC)

Defendant-Appellant.
____________________________

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Appellant Eloy Velasquez pled guilty to two counts of selling five grams or

*
This order and judgment is not binding precedent except under the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.
more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

He now appeals his 151-month sentence, contending the district court erred in

failing to address his arguments and explain its reasons for sentencing him to 151

months imprisonment and, otherwise, by imposing an unreasonable sentence

under 18 U.S.C. § 3553(a). W e exercise jurisdiction pursuant to 18 U.S.C. § 3742

and 28 U.S.C. § 1291, and affirm M r. Velasquez’s conviction and sentence.

I. Factual Background

On February 3, 2005, M r. Velasquez arranged to met his estranged wife and

her “nephew” at the Farmer’s M arket grocery store in Bloomfield, New M exico,

for the purpose of selling them methamphetamine; in making the arrangements for

the meeting, M r. Velasquez indicated they would move to another location after

he met them at the Farmer’s M arket. Unknown to M r. Velasquez, his wife

actually brought an undercover Drug Enforcement Administration (DEA) officer

posing as her nephew.

According to the statement of M r. Velasquez’s cousin, Joseph Elmer Lujan,

M r. Velasquez instructed him to go to the Farmer’s M arket in advance of the

meeting and look for a black Suburban, which M r. Velasquez knew the DEA

Region II office used. M r. Velasquez paid M r. Lujan one-half gram of

methamphetamine for his counter-surveillance. M r. Lujan’s statement was

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corroborated by agents who observed M r. Lujan travel from M r. Velasquez’s

apartment to the Farmer’s M arket fifteen minutes prior to when M r. Velasquez

left the apartment for the meeting, and they later saw M r. Lujan driving around

the area of the Farmer’s M arket conducting counter-surveillance.

W hen M r. Velasquez met his wife and the agent at the Farmer’s M arket, he

instructed them to follow his vehicle, after which he led them to a field outside of

town. M r. Velasquez then sold the agent two ounces of methamphetamine for

$2,400 and told the agent he could get him anything he wanted in the future,

including cocaine, marijuana, and more methamphetamine, bragging, “W e just

moved ten pounds to Denver last week.” He also told the agent he would charge

him $600 per pound for future marijuana purchases. W hen the agent asked for

another ounce of methamphetamine, M r. Velasquez initially said he could provide

it later that day but subsequently contacted his wife and told her he could not

retrieve it that day, requesting they conduct the transaction at a later time.

On February 17, 2005, M r. Velasquez’s wife contacted him requesting he

sell her “nephew ” another three ounces of methamphetamine. That afternoon, M r.

Velasquez met the agent in a parking lot and the agent paid $3,600 for eighty-four

grams of methamphetamine. M r. Velasquez then spoke to the agent about

distributing ounce quantities of cocaine for M r. Velasquez in Colorado. M r.

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Velasquez also told the agent he had moved “kilo” quantities of cocaine and

would sell the agent cocaine at $800 to $900 per ounce. They also discussed the

agent driving across the border and transporting loads of narcotics; M r. Velasquez

advised he would provide a vehicle and pay the agent between $3,000 and $5,000

per load. At the conclusion of their discussion, M r. Velasquez told the agent to

contact him directly for future transactions.

After M r. Velasquez’s arrest and indictment, he pled guilty to two counts of

selling five grams or more of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). Following his guilty plea, a probation officer prepared

a presentence report, calculating M r. Velasquez’s base offense level at thirty-two

under United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)

§ 2D 1.1(c)(4), and applying a tw o-level upward role adjustment under U.S.S.G .

§ 3B1.1(c) as an organizer, leader, manager, or supervisor. The probation officer

based the two-level role adjustment on the fact M r. Velasquez arranged the time

and place of the transactions; negotiated the price for the drugs; advised he could

sell the agent cocaine, marijuana, and methamphetamine in the future; provided

prices for future purchases; and instructed and hired M r. Lujan for one-half gram

of methamphetamine to conduct counter-surveillance for him at the Farmer’s

M arket. The probation officer concluded M r. Velasquez met the requirements of

§ 3B1.1(c) because he was the supplier and dealer; exercised management

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responsibility over the drugs; directly benefitted from the profit made; and

instructed one participant, M r. Lujan, to provide counter-surveillance. After

applying a three-level downward adjustment for acceptance of responsibility, for

a total offense level of thirty-one, and factoring in M r. Velasquez’s criminal

history at Category IV, the probation officer calculated his sentencing range at

151 to 188 months imprisonment.

II. Procedural Background

M r. Velasquez filed formal written objections to the presentence report,

arguing, in part, against the two-level role adjustment. He claimed the fact he

was a drug dealer did not qualify him for an enhancement because every drug

transaction requires negotiation of the price, arrangement of the time and place of

the transaction, and management responsibility over the drugs. Instead, he

argued, any management must be over people, and M r. Lujan was not: 1) an

employee or operative of his; 2) under his control or supervision; or 3) part of any

organization, but merely a friend who was not present during the drug

transactions and whose appearance in the first offense was “very fleeting in

nature.” H e also contended the half gram of methamphetamine provided M r.

Lujan was not a “quid pro quo,” as M r. Lujan merely took advantage of his

generosity. He also explained no need existed for M r. Lujan to provide “counter-

surveillance” because M r. Velasquez had informed his wife the actual transaction

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would take place in another location.

In addition to his objection to the role adjustment under § 3B1.1(c), M r.

Velasquez requested a “downward departure and variance” under United States v.

Booker 1 and 18 U.S.C. § 3553(a) on grounds his actions w ere motivated by his

wife or by a form of “sentencing entrapment,” 2 causing him to: 1) sell larger

quantities of methamphetamine than usual at his wife’s request; 2) charge less

than the going rates for the drugs sold to her “nephew”; and 3) brag or do

“puffing” about his other drug deals because he was “simply a guppy pretending

to be a whale in order to impress his wife and her ‘nephew’ ... in hopes of

reconciliation.” M r. Velasquez further claimed he acted only as the “go-between”

with his supplier and wife.

At the beginning of the sentencing trial, the district court judge stated,

“I’ve read everything you’ve filed. Is there anything else you want to say?” M r.

Velasquez’s counsel argued against the two-level role adjustment, concentrating

on the fact M r. Velasquez only bragged about and participated in large drug deals

1
543 U.S. 220 (2005).
2
W hile M r. Velasquez explains he raised the issue of “sentencing
entrapment” before the district court, nowhere in his brief on appeal does he ask
us to consider the issue or does he cite legal or other authority in support of such
a contention. For this reason, we decline to consider the issue, other than to note
it lacks merit sufficient for resentencing.

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because he wanted to impress his w ife, and he did not need to hire M r. Lujan to

do counter-surveillance at the Farmer’s M arket because they moved to a second,

secluded area for the actual transaction. In support of these arguments, M r.

Velasquez testified at the sentencing hearing, resulting in the following colloquy

on the counter-surveillance issue:

Government: M r. Velasquez, you met your wife at the Farmer’s
M arket because you wanted to make sure that she
wasn’t being followed by law enforcement agents
before you went to do the deal somewhere else;
isn’t that right?

M r. Velasquez: No. That’s the only place that – Bloomfield is a
small town. That’s the only – it’s that intersection
in town. It’s the only big building, really.

Government: So why didn’t you just –

Court: Come on. I’ve been to Bloomfield. Don’t give
me that malarkey.

M r. Velasquez: It’s the only grocery store there, sir.

Court: W ell, there are lots of other places you can meet
other than the grocery store.

Later, when M r. Velasquez’s attorney continued to argue M r. Velasquez did not

supervise M r. Lujan because he conducted counter-surveillance at the Farmer’s

M arket and not the field where the drug transaction took place, the court

countered:

Aren’t you missing the point? M r. Lujan stated that M r. Velasquez
told him to go to the area of the Farmer’s M arket and instructed him
to look around the area. M r. Lujan stated: [“]He told me to look for

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 a black Suburban because he knew the DEA Region II office utilized
a black Suburban.[”] M r. Lujan then made this statement, “I’m just
the eyes.” M r. Lujan, in his statement [said] M r. Velasquez gave him
approximately half a gram of methamphetamine to go to the Farmer’s
M arket and look for the black Suburban.

Again, when defense counsel suggested M r. Lujan was not being completely

truthful about conducting surveillance at the Farmer's M arket, and that

surveillance would only have made sense if M r. Lujan had been the “eyes” on the

dirt road near where the transaction took place, the district court judge disagreed,

stating:

That doesn’t make sense to me. I mean, if I’m going to go down
some dirt road ... and make the deal, I want to be sure that where I’m
going to meet the person, nobody is going to be there to follow me.
That’s why he is the eyes there. So w hat you’re saying, to me,
doesn’t really jibe very well.

The judge also observed that surveillance would not be needed on a dirt road in a

rural area, because one could easily see a cloud of dust if someone was

approaching, and further stated, “[D ]oesn’t it make sense that you search out first

to see where you’re going to pick the person up and see if there’s anybody there,

and then go to the secret place to do it?”

W ith respect to M r. Velasquez’s argument the circumstances warranted a

sentence below the Guidelines range because he was motivated to sell drugs to

impress his wife, the following colloquy with the court occurred:

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 Defense Counsel: W e’re not claiming this w as somehow against his
moral fiber, to sell these drugs. And certainly he
did sell drugs to other people. ... And as to what
he w as saying to his wife, you know , I would just
say that when one person is trying to impress or
get back together with his wife or in dating
situations, people do tend to exaggerate their
wealth or their influence. And certainly I think
that –

Court: W ell, I don’t think that I ever did that when I was
trying to get back with either of my other two
wives. So I’m not sure that’s a correct statement,
either.

At the conclusion of the sentencing hearing, the district court stated it

“reviewed the presentence report factual findings and ha[d] considered the

sentencing guideline applications and the factors set forth in 18 [U.S.C. §]

3553(a)(1) through (7).” It then determined the Guidelines sentencing range was

151 to 188 months and sentenced M r. Velasquez at the low end at 151 months on

each count, to run concurrently.

III. Discussion

On appeal, M r. Velasquez argues his sentence is unreasonable under 18

U.S.C. § 3553(a) because “atypical,” “unique,” “compelling,” or “anomalous”

circumstances exist to support a sentence lower than the Guidelines range.

According to him, these circumstances arose from his efforts to impress and

reconcile with his estranged wife, including the fact his drug offenses “resulted

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from his loyalty to his wife and his effort to help her,” the drug deals “did not

financially benefit him” because he sold the drugs to her “nephew” at cost, and

the drug deals “involved a considerably higher drug quantity than he would

otherwise have sold.” He also maintains his sentence is unreasonable and that

compelling circumstances exist for a below -Guidelines sentence based on M r.

Lujan’s limited “one-time surveillance” which was “very peripheral [in] nature,”

making his sentence “overly severe” and “disproportional to the extent of [his]

involvement.” In conjunction with these arguments, M r. Velasquez contends the

district court committed reversible error because it failed to address his

“meritorious argument[s]” and explicitly articulate the § 3553 factors it

considered when sentencing him.

W e review for reasonableness the sentence imposed and have determined a

presumption of reasonableness attaches to a sentence, like here, which is w ithin

the correctly-calculated Guidelines range. See United States v. Kristl, 437 F.3d

1050, 1053-54 (10th Cir. 2006) (per curiam). W e require reasonableness in tw o

respects – “the length of the sentence, as well as the method by which the

sentence was calculated.” Id. at 1055. If the district court “properly considers

the relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable,” but “[t]he defendant may rebut this

presumption by demonstrating that the sentence is unreasonable in light of the

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other sentencing factors laid out in § 3553(a).” Id. In determining whether the

district court properly considered the applicable Guidelines, we review its legal

conclusions de novo and its factual findings for clear error. Id. at 1054.

W e have held “[t]here is no question that, in addition to guiding our

reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C.

§ 3553(a) must be considered by the district court itself when imposing a

sentence.” United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.

2006). W hen the district court allows a defendant to make an argument that any

of these factors warrant a below-Guidelines sentence and then imposes a sentence

at the low end of the Guidelines range, we have said this “may fairly be read as a

functional rejection of [his] arguments and a denial of his request for a below-

Guidelines sentence.” Id. W hen addressing a district court’s consideration of the

§ 3553(a) factors, “[w ] do not require a ritualistic incantation to establish

consideration of a legal issue, nor do we demand that the district court recite any

magic words to show us that it fulfilled its responsibility to be mindful of the

factors that Congress has instructed it to consider.” United States v. Lopez-

Flores, 444 F.3d 1218, 1222 (10th Cir. 2006) (quotation marks and citation

omitted), petition for cert. filed (U.S. Jul. 7, 2006) (No. 06-5217). W hile “we

will not demand that the district court recite any magic w ords” to support its

conclusions, neither w ill we “presume the district court weighed a party’s

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arguments in light of the § 3553(a) factors where the record provides no

indication that it did so and no clear explanation of the sentence imposed.”

Sanchez-Juarez, 446 F.3d at 1115-16 (quotation marks and citations omitted).

[W ]here a defendant has raised a nonfrivolous argument that the
§ 3553(a) factors warrant a below-Guidelines sentence and has
expressly requested such a sentence, we must be able to discern from
the record that the sentencing judge did not rest on the guidelines
alone, but considered whether the guidelines sentence actually
conforms, in the circumstances, to the statutory factors.

Id. at 1117 (quotation marks, alterations, and citation omitted). However,

“[w]hen the defendant has not raised any substantial contentions concerning non-

Guidelines § 3553(a) factors and the district court imposes a sentence within the

Guidelines range, our post-Booker precedents do not require the court to explain

on the record how the § 3553(a) factors justify the sentence.” Lopez-Flores, 444

F.3d at 1222.

W ith these principles in mind, we note that, unlike the case in Sanchez-

Juarez, the district court in this case explicitly stated it considered the factors in

§ 3553(a) 3 in rendering M r. V elasquez’s sentence. See Sanchez-

3
18 U.S.C. § 3553(a) provides, in part, that the court shall consider:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(continued...)

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Juarez, 446 F.3d at 1115. Thus, the record provides a clear “indication” it

considered the requisite factors in sentencing M r. V elasquez. Id. at 1116.

Nevertheless, M r. Velasquez contends the district court erred in failing to

address his “meritorious argument[s] for a below-Guidelines sentence” and

“individually address any of the statutorily enumerated [§ 3553(a)] factors or

explain the court’s application of them in arriving at the sentence imposed.” 4 W e

disagree. First, as demonstrated by the record, the district court clearly addressed

M r. Velasquez’s argument he did not supervise M r. Lujan. As evidenced by the

colloquy at the sentencing hearing, the district court credited M r. Lujan’s

statement M r. Velasquez directed him to provide counter-surveillance at the first

location and paid him with drugs, which was corroborated by agents who

3
(...continued)
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available; ...
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
4
M r. Velasquez did not explain, either at sentencing or on appeal, which
of the § 3553(a) factors w arrant a below-Guidelines sentence. W e assume he is
relying on § 3553(a)(1),which requires the district court to look at “the nature and
circumstances of the offense.”

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followed M r. Lujan to the Farmer’s M arket and observed him driving around the

area. The district court also plainly rejected M r. Velasquez’s contention no

counter-surveillance was necessary at the first location when it explained it made

more sense to have counter-surveillance at the first location to ensure no one was

following the parties to the second location, especially when the second location

involved a rural setting where an approaching vehicle could more readily be seen.

Under these circumstances, we find the district court sufficiently addressed its

reasons for applying a two-level increase under § 3B1.1(c), and its determination

is reasonably supported by the record, as M r. Velasquez clearly gave “some form

of direction or supervision to someone subordinate in the criminal activity ....”

United States v. Backas, 901 F.2d 1528, 1530 (10th Cir. 1990). 5 W hile M r.

Velasquez contends the district court should have addressed his role adjustment in

terms of the factors in § 3553(a) because his sentence was overly severe based on

M r. Lujan’s one-time surveillance, his argument involves a specific guideline,

§ 3B1.1(c), which the district court explicitly addressed and rejected. In so

doing, it is clear the district court rejected any argument M r. Lujan’s singular

involvem ent created a circumstance under § 3553(a)(1) warranting a below-

Guidelines sentence, and no further explanation by the district court was needed

under the circumstances.

5
The Guidelines recommend a two-level increase if M r. Velasquez was an
“organizer, leader, manager, or supervisor” in the criminal activity. See U.S.S.G .
§ 3B1.1(c).

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 Next, the district court allowed M r. Velasquez to make his argument that

“unique” circumstances w arranted a below-Guidelines sentence based on his

efforts to reconcile with and impress his wife, as demonstrated by the alleged low

cost and large quantity of drugs sold to her “nephew” and M r. Velasquez's

supposed exaggeration about other drug transactions. Thus, when the district

court imposed a sentence at the low end of the Guidelines range, it was “a

functional rejection of [his] arguments and a denial of his request for a below-

Guidelines sentence.” Sanchez-Juarez, 446 F.3d at 1115. It is also clear M r.

Velasquez did not raise any substantial contentions which would require the

district court to explain on the record how the nature and circumstances of the

offense, under § 3553(a)(1), justified the sentence imposed. Lopez-Flores, 444

F.3d at 1222. This is because M r. Velasquez has provided no legal or other

support, either at the district court level or on appeal, for a below-Guidelines

sentence based on one’s actions in committing a criminal offense for the purpose

of impressing his w ife. Like the district court, which considered and obviously

rejected this frivolous argument, we find it lacks merit and did not require any

further discussion of § 3553(a) factors.

Finally, because the district court properly considered the relevant

Guidelines range and sentenced the defendant within that range, the sentence is

presumptively reasonable. See Kristl, 437 F.3d at 1055. M r. Velasquez has

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clearly not rebutted this presumption by demonstrating the sentence is

unreasonable in light of the sentencing factors in § 3553(a). Id.

IV. Conclusion

For these reasons, w e A FFIRM M r. V elasquez’s conviction and sentence.

Entered by the C ourt:

W ADE BRO RBY
United States Circuit Judge

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