                                                                               FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       December 5, 2007
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                 TENTH CIRCUIT
                        _____________________________________

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                          No. 07-8034
           v.                                                 (D. Wyoming)
 SILVIANO HOLGUIN,                                      (D.C. Nos. 06-CR-139-9-D/
                                                             06-CR-140-6-D)
                Defendant - Appellant.

                        _____________________________________

                             ORDER AND JUDGMENT*
                        _____________________________________

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.**
                 _____________________________________



       Silviano Holguin pleaded guilty to two separate indictments for conspiracy to

possess with intent to distribute, and distribution of methamphetamine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Mr. Holguin was sentenced to a total of 228

months’ imprisonment and 5 years’ supervised release (168 months for the drug counts,

and an additional 60 months for Possession of a Firearm During and in Relation to a Drug


       *
         This order and judgment is not binding precedent except under the doctrines of
the 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.
       **
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See FED. R.APP. P. 34(f) and 10TH CIR. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Trafficking Offense in violation of 18 U.S.C. § 924(c)(1)(A)(i)). On appeal, Mr. Holguin

argues that the district court erred by giving him a two-level increase under U.S.S.G. §

2D1.1(b)(4), which applies when an offense involves the importation of

methamphetamine. He argues that the government did not prove by a preponderance of

the evidence that he knew the methamphetamine was imported. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.



                                    I. BACKGROUND

       Mr. Holguin was charged with multiple methamphetamine trafficking offenses in

two separate indictments. Though he initially entered not guilty pleas, he ultimately

pleaded guilty to both. In preparation for sentencing, the probation office prepared a

presentence investigation report (“PSR”), which calculated Mr. Holguin’s offense level as

35 and placed him in criminal history category I. The PSR calculated the advisory

guideline range for the two counts of conspiracy to possess with intent to distribute

methamphetamine as 168-210 months in prison. The district court sentenced Mr. Holguin

to 168 months in prison for the drug offenses and an additional consecutive 60 months for

possessing a firearm during those offenses.



                                     II. DISCUSSION

        In determining whether the district court properly applied the sentencing

guidelines, we review its factual findings for clear error, and its legal conclusions de

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novo. United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007). The district

court’s determination that Mr. Holguin was aware the drugs were imported is a factual

determination we review for clear error.

       U.S.S.G. § 2D1.1(b)(4) provides:

       If (A) the offense involved the importation of . . . methamphetamine or the
       manufacture of . . . methamphetamine from listed chemicals that the defendant
       knew were imported unlawfully, and (B) the defendant is not subject to an
       adjustment under § 3B1.2 (Mitigating Role), increase by 2 levels.

Mr. Holguin argues that the district court erred in applying the § 2D1.1(b)(4)

enhancement, because the government did not prove that he was aware the drugs were

imported. We decline to address the Government’s contention that § 2D1.1(b)(4) does

not incorporate a mens rea requirement, Aple’s Br. at 22-27, because even if we assume

that knowledge of the importation is a requirement, the district court did not clearly err in

applying the enhancement.

       In his plea agreement, Mr. Holguin concedes that he had been involved in a

methamphetamine trafficking conspiracy with Donna Holguin (his wife) and Santiago

Gonzalez-Cisneros. Rec. vol. XVI, at 25. The PSR describes surveillance evidence that

Ms. Holguin and co-conspirator Claudia Hermosillo had, on at least one occasion, talked

about the anticipated arrival of methamphetamine from Mexico. Id. vol. XVII, ¶ 50. Mr.

Holguin did not object to this section of the PSR.

       Further, at the sentencing hearing, Special Agent Steven Woodson testified that

both wire interceptions and interviews with Ms. Hermosillo and Mr. Gonzalez determined


                                              3
that their principal methamphetamine source was Remundo Garcia-Provencio, who

resided in and provided the methamphetamine from Mexico. There were numerous

phone conversations between Ms. Holguin and Ms. Hermosillo regarding the fact that the

drugs came from Mexico and that the proceeds would be sent back there. When these

conversations occurred, Mr. and Ms. Holguin were living together.

       Finally, authorities seized one-quarter ounce of methamphetamine from Mr.

Holguin during a traffic stop. Agent Woodson testified that there were many intercepted

conversations between Ms. Holguin and Ms. Hermosillo concerning Ms. Holguin’s debt

to Ms. Hermosillo and that in virtually every one of those calls, Ms. Holguin told Ms.

Hermosillo that she would have to address that debt with her husband, Mr. Holguin. Rec.

vol. XV, at 20. In fact, after Ms. Hermosillo repeatedly called about this debt, Mr.

Holguin got on the phone to demand that she stop bothering them about the money. Id. at

16.

       Assuming, without deciding, that proof of knowledge is required, the district court

did not commit clear error in holding that the government showed by a preponderance of

the evidence that Mr. Holguin was aware that the methamphetamine was imported

unlawfully.




                                             4
                                  IV. CONCLUSION

      Accordingly, we AFFIRM the district court’s sentence, specifically the two-level

enhancement under U.S.S.G. § 2D1.1(b)(4).



                                                     Entered for the Court,



                                                     Robert H. Henry
                                                     United States Circuit Judge




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