FILED
United States Court of Appeals
Tenth Circuit
February 16, 2011
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-3290
(D. Ct. No. 2:07-20167-03-KHV)
JUAN CARLOS OLVERA-RIVERA, (D. Kan.)
a/k/a Cristian DeGalvino, a/k/a Rodrigo
Montolvo a/k/a Carlos,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, TACHA, and BALDOCK, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Defendant-appellant Juan Carlos Olvera-Rivera pleaded guilty to ten counts
stemming from a large-scale cocaine distribution conspiracy in Kansas City, Kansas. On
appeal, he challenges his 264-month sentence, arguing that the district court erroneously:
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(1) attributed certain amounts of cocaine to him; (2) applied a two-level enhancement for
possession of a firearm under United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) § 2D1.1(b)(1); and (3) refused to apply a two-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. Taking jurisdiction under 28 U.S.C.
§ 1291, we AFFIRM.
I. BACKGROUND
Through an investigation conducted by various federal and local law enforcement
agencies, investigators learned that customers seeking powder or crack cocaine would
contact Mr. Olvera-Rivera, who would then contact two other individuals, Ramiro
Vivanco-Correa and Sergio Loya-Villalobos, to supply the drugs to the customer. If Mr.
Vivanco-Correa or Mr. Loya-Villalobos agreed to the transaction, Mr. Olvera-Rivera
would arrange a time and place for the sale.
Boytina Locke was one of the customers who repeatedly ordered cocaine from Mr.
Olvera-Rivera. Mr. Locke, in turn, would sell it to other individuals down the line. On
October 10, 2007, based on intercepted telephone calls between Mr. Locke and Mr.
Olvera-Rivera regarding a cocaine transaction, investigators conducted surveillance
during which they saw Mr. Locke and two other individuals meet with Mr. Olvera-Rivera
at a residence in Kansas City, Kansas. After the meeting, the two individuals were pulled
over and officers discovered 1.98 kilograms of cocaine in their vehicle.
On November 29, investigators again intercepted a phone call in which Mr. Locke
placed an order with Mr. Olvera-Rivera. Mr. Olvera-Rivera, in turn, contacted his two
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suppliers. The same day, officers saw Mr. Olvera-Rivera meet with Mr. Locke and later
saw Mr. Locke meet with one of his customers. The customer was thereafter stopped and
arrested on outstanding warrants, and 272 grams of cocaine were seized from his car.
On December 1, 2007, Mr. Locke placed another order1 with Mr. Olvera-Rivera.
Mr. Olvera-Rivera then contacted Mr. Loya-Villalobos, who delivered the requested
amount of cocaine to a house on 38th Street in Kansas City, Kansas. When Mr. Locke
arrived at the house, accompanied by his customer Charles Singleton, both men were
arrested in their car by surveilling officers. Mr. Olvera-Rivera and Mr. Loya-Villalobos
were arrested inside the house. Officers recovered 500 grams of cocaine from the
kitchen. They also found a .40 caliber pistol in Mr. Singleton’s waistband.
Later the same day, officers searched another house in Kansas City believed to be
the operation’s “stash house.” They discovered 14.58 kilograms of cocaine2 and $76,829
in cash.
Mr. Olvera-Rivera was charged with conspiracy to distribute cocaine, five counts
of using a telephone in the commission of drug trafficking crimes, and unlawful re-entry
1
Mr. Locke actually placed several orders that day, but only one is relevant to this
appeal.
2
At Mr. Olvera-Rivera’s change-of-plea hearing, the government contended that 16
kilograms of cocaine were recovered at the stash house. But the presentence report,
which the government’s appellate brief characterizes as quantifying the amounts of seized
cocaine with more precision than was used during the plea hearing, quantifies the amount
at 14.58 kilograms. Govt. Br. at 8; PSR para. 80. In any event, as we explain below,
even if we disregard all of the cocaine found at the stash house, Mr. Olvera-Rivera’s base
offense level would remain the same.
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of a previously deported alien. He was also charged with three “distribution” counts: (1)
possession of cocaine with the intent to distribute, based on the October 10 transaction;
(2) distribution of cocaine, based on the November 29 transaction; and (3) attempting to
possess cocaine with the intent to distribute, based on the December 1 transaction. He
pleaded guilty without a plea agreement to all counts.
A presentence report (“PSR”) was prepared. Paragraphs 57, 76, 77, and 78
described the three transactions, as well as the amount of cocaine, underlying the three
distribution counts. In a section titled “Drug Amount Attributed to Juan Carlos Olvera-
Rivera,” Paragraph 108 listed eighteen additional instances apart from the three
distribution counts in which Mr. Olvera-Rivera was involved in cocaine transactions as
part of the conspiracy. The total amount of cocaine involved in those transactions was
13.75 kilograms. Paragraph 109 in the same section of the PSR totaled the 500 grams
recovered from the house on 38th Street on December 1 and the 14.58 kilograms
recovered from the stash house on December 1, and converted the $76,829 recovered
from the stash house to 3.34 kilograms, all for a total of 18.42 kilograms of cocaine.
When added to the 13.75 kilograms set forth in Paragraph 109, the PSR recommended
that 32.17 kilograms be attributed to Mr. Olvera-Rivera for sentencing. This resulted in a
base offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (base offense level is 34 for offenses
involving at least 15, but less than 50, kilograms of cocaine).
The PSR further recommended a two-level specific-offense enhancement for
possession of a firearm based on the pistol carried by Mr. Singleton. See U.S.S.G.
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§ 2D1.1(b)(1). The PSR recommended against any reduction for acceptance of
responsibility under § 3E1.1, explaining that “[a]lthough the defendant entered a guilty
plea, he has falsely denied any additional relevant conduct.” With a total adjusted offense
level of 36 and a criminal history category of III, the Guidelines recommended a sentence
of 235–293 months’ imprisonment.
Mr. Olvera-Rivera filed extensive objections to the PSR, most of them relating to
drug quantity. Relevant to this appeal, he objected to Paragraph 108’s computation of
13.75 kilograms of cocaine because it did not “establish[] a drug quantity with sufficient
specificity.” He further objected to attributing the cocaine found in the stash house to
him. He argued that he should be sentenced based only on the drug quantities underlying
the three distribution counts, which he stated were 1.98 kilograms for the October 10
transaction, .5 kilograms for the November 29 transaction3, and .5 kilograms for the
December 1 transaction.
Mr. Olvera-Rivera also objected to the firearms enhancement because neither he
nor his associates possessed the pistol; rather, “the only person with a firearm was one of
the individuals with whom Mr. Olvera[-Rivera] intended to transact business.” Finally,
Mr. Olvera-Rivera contended that he should receive a full three-level reduction for
acceptance of responsibility. See U.S.S.G. § 3E1.1(b).
3
Although the PSR stated that that transaction involved 272 grams, Mr. Olvera-
Rivera contended in his objections that because the charge was for distributing 500 grams
or more of cocaine, and because “[t]he evidence fails to establish a specific drug quantity
above 500 grams . . . that amount should be used.”
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Days before his sentencing hearing, however, Mr. Olvera-Rivera filed a sentencing
memorandum withdrawing most of his objections relating to the drug quantities. In the
memorandum, Mr. Olvera-Rivera specifically admitted that the 13.75 kilograms of
cocaine in Paragraph 108 could be attributed to him for sentencing purposes, and he
“modifi[ed] his objections to the computation of the guidelines sentencing range
accordingly.” Thus, according to Mr. Olvera-Rivera, his base offense level should be 32,
not 34. See U.S.S.G. § 2D1.1(c)(4) (base offense level is 32 for offenses involving at
least 5, but less than 15, kilograms of cocaine). But Mr. Olvera-Rivera also maintained
three specific objections to the PSR: (1) the attribution of 18.42 kilograms of cocaine to
him based on the drugs and money found in the stash house; (2) the firearms
enhancement; and (3) the denial of a three-level reduction for acceptance of
responsibility.
At sentencing, the district court considered the parties’ arguments and took
testimony from an investigating officer on the issue of drug quantity. Ultimately, the
court used the 32.17-kilogram figure outlined in the PSR to calculate Mr. Olvera-Rivera’s
offense level. It applied the firearm enhancement and did not give Mr. Olvera-Rivera a
reduction for acceptance of responsibility. The court sentenced him in the middle of the
advisory range, to 264 months’ imprisonment.
Mr. Olvera-Rivera now appeals, raising the same three objections he raised in his
sentencing memorandum.
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II. DISCUSSION
A. Standard of Review
We review sentences for reasonableness under an abuse-of-discretion standard.
United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009). Reasonableness review
encompasses both a procedural component in which we assess the district court’s
application of the Guidelines and its calculation of the sentencing range, as well as a
substantive component in which we consider the length of the sentence imposed. See
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Mr. Olvera-Rivera’s
challenges implicate his sentence’s procedural reasonableness. See Gall v. United States,
552 U.S. 38, 51 (2007) (procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence”).
B. Calculation of Drug Quantity
Mr. Olvera-Rivera’s challenge to the district court’s drug-quantity finding is
dependent on whether he may be held responsible for at least 15 kilograms of cocaine.
Under U.S.S.G. § 2D1.1(c), the base offense level is 34 for a quantity of cocaine that is at
least 15 kilograms but less than 50 kilograms. The base offense level is only 32,
however, when the cocaine quantity is less than 15 but at least 5 kilograms.
On appeal, Mr. Olvera-Rivera contends that the court may only attribute to him the
13.75 kilograms detailed in Paragraph 108 of the PSR which he admitted responsibility
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for in his sentencing memorandum and at the sentencing hearing. He argues that the
district court erred in also using the 18.42 kilograms set forth in Paragraph 109 because
that figure represents contraband seized from the stash house (as opposed to transactions
he personally participated in), and because his role in the overall conspiracy was so
minimal as to preclude the district court from attributing that contraband to him.
The district court properly set Mr. Olvera-Rivera’s base offense level at 34 based
on at least 15 kilograms of cocaine. Contrary to Mr. Olvera-Rivera’s understanding, the
PSR makes clear that only 14.58 kilograms of powder cocaine and $76,829, which
converts to 3.34 kilograms of cocaine for sentencing purposes, were discovered at the
stash house. Thus, the total amount recovered from the stash house amounts to 17.92
kilograms. The 18.42-kilogram figure set forth in Paragraph 109 of the PSR is the sum of
the stash house quantity and the 500-gram quantity seized from the 38th Street house
during the December 1 transaction; it is not, as Mr. Olvera-Rivera contends, the sum of
the drug quantity found at the stash house alone.
Moreover, Mr. Olvera-Rivera specifically admitted to that 500-gram amount at his
change-of-plea hearing, in his objections to the PSR, and at his sentencing hearing. He
also admitted to the 1.98 kilograms of cocaine involved in the October 10 transaction and
the 272 grams involved in the November 29 transaction, neither of which are included in
the 13.75-kilogram figure he presses on appeal. The sum of these quantities is greater
than 15 kilograms. Thus, even if we assume for purposes of this appeal that the district
court erred in attributing the stash house contraband to Mr. Olvera-Rivera, any such error
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did not affect the court’s selection of his base offense level. See Kristl, 467 F.3d at 1055
(procedural error in calculating the Guidelines sentence does not warrant remand for
resentencing unless the error affects the court’s selection of the sentence imposed).
C. Enhancement for Possession of a Weapon
U.S.S.G. § 2D1.1(b)(1) provides for a two-level specific-offense enhancement “[i]f
a dangerous weapon (including a firearm) was possessed” during commission of the
offense. “[T]he adjustment should be applied if the weapon was present, unless it is
clearly improbable that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1(b)(1), cmt. n.3.4
Mr. Olvera-Rivera argues that the enhancement should not be applied to a person
convicted of selling drugs when only the buyer possessed the weapon. He contends that
in such circumstances, the weapon was not “readily available” to the seller for his use
during the sale. This argument, however, misapprehends the relevant legal standard.
“Section 1B1.3(a)(1) directs courts applying a specific offense characteristic such
as 2D1.1(b)(1) to consider all acts and omissions committed or aided and abetted . . . that
occurred during the commission of the offense,” which includes “conduct of others in
furtherance of the execution of the jointly-undertaken criminal activity that was
reasonably foreseeable by the defendant, regardless whether a conspiracy is charged.”
4
“Commentary to the Guidelines is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline. ” United States v. McConnell, 605 F.3d 822, 824 (10th Cir. 2010) (quotations
omitted).
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United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991) (quotations and citation
omitted). “Together, these provisions permit sentencing courts to attribute to a defendant
weapons possessed by his co-defendants5 if the possession of weapons was known to the
defendant or reasonably foreseeable by him.” Id. “[T]he district court’s finding
concerning foreseeability is a factual finding reviewable under a clearly erroneous
standard.” Id.
In this case, the district court found that Mr. Singleton’s firearm clearly was
present, that it was not clearly improbable that the firearm was connected to the offense,
and that its presence and possession at the scene of the offense was reasonably
foreseeable to Mr. Olvera-Rivera. In so finding, the court agreed with the government’s
position that Mr. Olvera-Rivera’s prior involvement with drug crimes, the large quantities
of drugs involved in the instant conspiracy, and Mr. Olvera-Rivera’s practice of bringing
another individual with him during drug transactions all showed that he was (or at least
should have been) aware of the dangers inherent in the drug-trafficking business. Based
on the record in this case, we cannot say that the district court clearly erred in finding that
it was reasonably foreseeable to Mr. Olvera-Rivera that a drug customer would arrive at a
scheduled transaction armed with a gun.
D. Denial of Acceptance of Responsibility
Under U.S.S.G. § 3E1.1(a), a defendant’s base offense level is decreased by two
levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his
5
Mr. Singleton was also prosecuted for his involvement in the conspiracy.
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offense.” “Determination of acceptance of responsibility is a question of fact reviewed
under a clearly erroneous standard.” United States v. Tom, 494 F.3d 1277, 1281 (10th
Cir. 2007). The district court denied any reduction for acceptance of responsibility
because it found that Mr. Olvera-Rivera’s objections bordered on frivolity. It agreed with
the government that he had denied responsibility for drug amounts for which he was
clearly accountable and that he falsely characterized himself as a mere minion or courier
in the conspiracy. Id.
On appeal, Mr. Olvera-Rivera contends that he should not be penalized for legal
arguments advanced by his counsel. This contention is without merit. The objections to
the PSR, while “legal” in the sense that they did not go to the facts underlying his actual
convictions, nonetheless amounted to a near-total denial of responsibility for relevant
conduct. Because “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,” see U.S.S.G. § 3E1.1 cmt. n.1(A), the district court did not
clearly err in refusing to apply the reduction.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Olvera-Rivera’s sentence.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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