                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS                 April 16, 2008
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 07-2024
          v.                                       District of New Mexico
 JUAN MANUEL ROJAS-                            (D.C. No. 05-CR-2458-013-JC)
 HERNANDEZ,

               Respondent-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, ANDERSON and McCONNELL, Circuit Judges.


      Appellant Juan Manuel Rojas-Hernandez pleaded guilty to one count of an

indictment charging him with conspiracy to possess with intent to distribute more

than one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i),

and 846. He was sentenced to serve a term of 168 months’ imprisonment, the



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
bottom of his advisory range under the United States Sentencing Guidelines. He

appeals that sentence as substantively unreasonable. We affirm.

                               I. BACKGROUND

      Mr. Rojas-Hernandez was named in four counts of a sixteen-count, fifteen-

defendant superseding indictment brought against the members of a large heroin

trafficking organization that operated in and around Albuquerque, New Mexico,

until the DEA took it down on November 15, 2005. The indictment was the result

of a months-long investigation by local and federal authorities, including a

wiretap that intercepted over four thousand pertinent telephone calls.

      Mr. Rojas-Hernandez, who had illegally immigrated to the United States

from Mexico, began his association with the conspiracy as a street-level courier.

In time his higher-ups promoted him to the mid-level position of dispatcher:

      Seven days a week, between about 7:00 a.m. and 7:30 or 8:00 p.m., a
      dispatcher would answer [his] cell phone and take the orders [for
      heroin]. The dispatcher would direct the customer to a known
      location—usually the parking lot of an easily identifiable legitimate
      business, such as fast food restaurants, grocery stores, car washes,
      etc.—and give the customer an estimate of how long it would take
      for the delivery to be made. The dispatcher would then call the street
      level courier assigned to that route and tell the courier which
      customers were waiting at which locations. The dispatchers often
      instructed the couriers which addicts were considered good credit
      risks and directed the couriers not to sell to addicts who had failed to
      pay in the past. The dispatchers would also make decisions whether
      the couriers should accept particular trade goods for heroin instead of
      cash.




                                        -2-
R., Vol. II, PSR ¶ 51, at 11–12. We largely assume the parties’ familiarity with

the remaining facts of the case.

      On August 7, 2006, pursuant to a plea agreement with the government, Mr.

Rojas-Hernandez entered a plea of guilty to Count 1 of the indictment, the charge

of conspiracy to possess with intent to distribute more than one kilogram of

heroin. His forty-page Presentence Investigation Report (PSR) explained in

substantial detail the nature of the conspiracy, its structure and methods of

operation, and the scope of Mr. Rojas-Hernandez’s involvement. It accounted

him responsible, over the course of the conspiracy, for the distribution of between

10 and 30 kilograms of heroin. For purposes of the United States Sentencing

Guidelines, the PSR therefore computed his base offense level at 36, see U.S.S.G.

§ 2D1.1(c)(2) (2005), applied a two-point enhancement for his role in the offense

as an organizer, leader, manager, or supervisor, see id. § 3B1.1(c), and reduced

this by three points to recognize his acceptance of responsibility, see id. §

3E1.1(a), (b), for a total Offense Level of 35. The absence of any criminal

background meant that Mr. Rojas-Hernandez’s Criminal History Category was I,

and his resultant advisory sentencing range was 168–210 months.

      Mr. Rojas-Hernandez did not object to any of the PSR’s factual allegations

or Guidelines calculations. At a sentencing hearing his counsel discussed a few

of his redeeming qualities, such as his law-abiding past, his allegedly minor role

in the conspiracy, and the claim that Mr. Rojas-Hernandez had turned to crime

                                          -3-
only to be able to pay for medical treatment for his daughter’s hepatitis. Counsel

did not, however, request any specific sentence or argue for a variance from the

Guidelines range. The district court imposed the bottom term of 168 months, and

Mr. Rojas-Hernandez timely appealed. He does not challenge the district court’s

factual findings or the calculation of his Guidelines range, but asserts that his

sentence is unreasonably high in light of the factors prescribed for sentencing by

18 U.S.C. § 3553(a).

                                 II. DISCUSSION

                             A. Waiver and Forfeiture

      The government urges that, without reaching the merits, we should consider

the claim now presented to have been waived or forfeited below. Although they

are often confused or conflated, waiver and forfeiture of error are distinct

doctrines: “Whereas forfeiture is the failure to make the timely assertion of a

right, waiver is the ‘intentional relinquishment or abandonment of a known

right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)); accord, e.g., United States v. Carrasco-

Salazar, 494 F.3d 1270, 1272 (10th. Cir. 2007); United States v. Teague, 443 F.3d

1310, 1314 (10th Cir. 2006). Waiver affirmatively bars a party from appealing on

the relinquished claim, while forfeiture generally means he may have relief only

for plain error. Carrasco-Salazar, 494 F.3d at 1272; Teague, 443 F.3d at

1314–15. Because Mr. Rojas-Hernandez made no objection to his PSR, and never

                                          -4-
specifically requested a sentence below his Guidelines range, the government

contends that he waived his right to appeal the sentence he received, or at least

that his appeal should be subject to review for plain error only.

      In United States v. Mancera-Perez, 505 F.3d 1054, 1058 (10th Cir. 2007),

we held that a defendant who “not only failed to object after the district court

pronounced his sentence, but failed, even before sentencing, to offer any

argument whatsoever for a lower sentence and, indeed, agreed with the district

court that the length of the sentence imposed was reasonable,” thereby waived his

right to appeal the reasonableness of the sentence. The government argues that

the same rule should apply in this case because Mr. Rojas-Hernandez did not

object after sentencing or argue beforehand for a below-Guidelines sentence. We

disagree. The decisive factor in Mancera-Perez—as in any true waiver case—was

affirmative acquiescence or agreement, neither of which was present here.

      Retrenching, the government urges alternatively that we should deem this

sentencing claim forfeited and review it for plain error. The government

acknowledges that in United States v. Torres-Duenas, 461 F.3d 1178, 1182–83

(10th Cir. 2006), a case where the defendant “did not specifically object to the

reasonableness of his sentence in the district court,” we held that “when the claim

is merely that the sentence is unreasonably long, we do not require the defendant

to object in order to preserve the issue.” On its face, Torres-Duenas would thus

seem to squeeze out forfeiture altogether: whether or not the defendant objects,

                                         -5-
his claim receives full review; unless he affirmatively acquiesced in the sentence,

in which case the claim is barred altogether. But in Mancera-Perez we

“clarif[ied] Torres-Duenas’s exception” to the ordinary forfeiture rules: the

defendant can benefit from it only if he “at least made the argument for a lower

sentence before the district court.” 505 F.3d at 1059.

      Mr. Rojas-Hernandez contends that, if any such argument is necessary, he

did make an argument for a lower sentence at his sentencing hearing by

highlighting his minimal role in the conspiracy and the fact that he had turned to

crime only to get money to pay for his daughter’s medical care. We need not, and

do not, decide whether “an argument for a lower sentence” must be an argument

for a sentence below the Guidelines. Nor do we decide whether merely stressing

a defendant’s mitigating facts, when one does not know what kind of sentence the

court is contemplating, is truly “an argument for a lower sentence” than he

receives, sufficient to preserve the claim, or whether it is just an argument for a

lowish sentence, which is satisfied when he is sentenced at the bottom of the

Guidelines. In this case, we would affirm whether or not plain error applied, and

will for argument’s sake review Mr. Rojas-Hernandez’s claim on the

reasonableness standard to which he claims to be entitled.

                              B. Standard of Review

      A sentence must be “sufficient, but not greater than necessary,” to comply

with a set of sentencing considerations laid out by Congress in 18 U.S.C. §

                                          -6-
3553(a), including “the nature and circumstances of the offense and the history

and characteristics of the defendant,” “the need for the sentence imposed . . . to

reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense,” “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct,” and the defendant’s Guidelines range.

      Our review “will, of course, take into account the totality of the

circumstances.” Gall v. United States, 128 S. Ct. 586, 597 (2007). However,

because Mr. Rojas-Hernandez was sentenced within the Guidelines, his sentence

is presumptively reasonable. United States v. Angel-Guzman, 506 F.3d 1007,

1012 (10th Cir. 2007); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006) (per curiam). The presumption is rebuttable, but “appellate

‘reasonableness’ review merely asks whether the trial court abused its discretion.”

Rita v. United States, 127 S. Ct. 2456, 2465 (2007). That level of appellate

review implies a “substantial deference to district courts.” United States v.

Smart, 518 F.3d 800, 806 (10th Cir. 2008).

                                    C. Analysis

      Mr. Rojas-Hernandez presents four reasons to think the district court

abused its discretion in this case: his character in Mexico was good, his motives

in crime were high-minded, his role in the offense was minimal, and his co-

defendants received lower sentences than he did. We are unpersuaded.

                                         -7-
      The record reveals no more about Mr. Rojas-Hernandez’s character than

that he was never before convicted of a crime, and was gainfully employed as a

sugar-cane cutter in Mexico. (His only profession since arriving in the United

States has been of the illegal variety.) But legitimate employment, while

commendable, is not remarkable in the least, and the lack of a criminal past is

already accounted for under the Guidelines through the calculation of the

defendant’s Criminal History Category; the district court does not abuse its

discretion by giving it no more consideration than that. The argument that a

below-Guidelines sentence was mandated because Mr. Rojas-Hernandez was

engaged in crime to pay for medical care for his daughter likewise fails. A great

many defendants have turned to crime because of poverty or to support

themselves and their loved ones, so Mr. Rojas-Hernandez’s case cannot be

distinguished on this basis from “the mine run of cases” in which a Guidelines

sentence will be reasonable. Rita, 127 S. Ct. at 2465.

      The argument that Mr. Rojas-Hernandez played only a very minor role in

this conspiracy is also unavailing. The PSR extensively outlined the scope of his

role in the organization, including his “promotion” from street-level courier to the

safer job of dispatcher. Mr. Rojas-Hernandez did not object to the two-point

Guidelines enhancement applicable to a defendant who “was an organizer, leader,

manager, or supervisor” in criminal activity, U.S.S.G. § 3B1.1(c), or to the PSR’s

description, reprinted above, of the supervisory and decisionmaking

                                         -8-
responsibilities of a heroin “dispatcher.” These realities are inconsistent with his

claim of minor-participant status, and the district court was entitled to rely on

them at sentencing. Similarly, Mr. Rojas-Hernandez argues that, although he may

have arranged drug transactions, he never handled drugs or money. But when he

was searched by police during a traffic stop on August 11, 2005, he had $975 in

his pocket—a hefty sum for one who has no legitimate employment and claims to

be impoverished.

      Mr. Rojas-Hernandez argues strenuously that his sentence was

unreasonable because he was punished more severely than other, allegedly more

culpable members of his conspiracy. “[I]t is inconceivable,” he says, “that Mr.

Rojas-Hernandez received a sentence which was four years longer than the leader

of the drug trafficking organization,” Juan Cruz-Mora. Aplt’s Br. 15. As the

government rightly points out, however, the record of this case contains an

insufficient basis for reviewing this claim. We can conclude from the findings in

Mr. Rojas-Hernandez’s PSR that Mr. Cruz-Mora’s role and involvement were

more substantial, but we know nothing about Mr. Cruz-Mora’s “history and

characteristics,” 18 U.S.C. § 3553(a)(1), about what it would take “to protect the

public from further crimes of” Mr. Cruz-Mora, id. § 3553(a)(2)(C), about whether

he rendered “substantial assistance in the prosecution” of other offenders,

U.S.S.G. § 5K1.1, or any of the numerous other things that might have made a

lower sentence reasonable for him.

                                          -9-
      More importantly, this argument fails as a matter of law. Although §

3553(a)(6) requires the district court to sentence in light of “the need to avoid

unwarranted sentence disparities,” we have repeatedly held that this “requires a

judge to take into account only disparities nationwide among defendants with

similar records and Guideline calculations.” United States v. Verdin-Garcia, 516

F.3d 884, 899 (10th Cir. 2008) (citing United States v. Davis, 437 F.3d 989, 997

(10th Cir. 2006); United States v. Gallegos, 129 F.3d 1140, 1143 (10th Cir.

1997)). The Supreme Court’s opinion in Gall, 128 S. Ct. at 599–600, suggests

that a court may be within its discretion to go further and consider the possibility

of unwarranted disparities (or even unwarranted similarities, cf. Verdin-Garcia,

516 F.3d at 899) among co-defendants. But the court surely acts within its

discretion when it declines to do so and adheres to the text of § 3553(a).

Therefore, absent a showing that Mr. Rojas-Hernandez’s 168-month sentence was

unreasonably higher than the sentences of others in his shoes across the nation, he

may not have relief on this basis. No such showing has been made.

                                III. CONCLUSION

      The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.

                                                Entered for the Court,

                                                Michael W. McConnell
                                                Circuit Judge


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