                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            July 14, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 04-3114
          v.                                   (D.C. No. 03-CR-10066-02-JTM)
 GERONIMO CUEVAS-JUAREZ,                                  (D. Kansas)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      A jury convicted Defendant Geronimo Cuevas-Juarez of possessing with

intent to distribute approximately 400 pounds of marijuana, conspiracy to possess

marijuana with intent to distribute, and interstate travel in aid of racketeering.

The district court imposed a sentence of 97 months’ imprisonment after finding

that he was a leader or organizer in the crime, see U.S. Sentencing Guidelines


      *
        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(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Manual (USSG) § 3B1.1(c) (2003), and that he obstructed justice by committing

perjury at trial, see USSG § 3C1.1. Defendant appeals, arguing that the district

court improperly admitted hearsay evidence under the coconspirator exception,

Fed. R. Evid. 801(d)(2)(E), and that the two sentencing enhancements both lack

evidentiary support and were imposed in violation of the Sixth Amendment as

interpreted by United States v. Booker, 125 S. Ct. 738 (2005). We have

jurisdiction under 28 U.S.C. § 1291. We affirm the convictions and sentence.

I. BACKGROUND

      On March 28, 2003, Kansas Highway Patrol Trooper Terry Kummer

stopped Defendant because the recreational vehicle he was driving did not have a

license plate. Kummer noticed the smell of raw marijuana when Defendant rolled

down his window. Because Defendant did not speak English, Kummer requested

permission from the vehicle’s other adult occupant, Jasmyn Perez, to enter and

search the vehicle. She granted the request. The search uncovered 95 packages

of marijuana weighing approximately 400 pounds.

      After the vehicle was taken into custody, it was searched and its contents

catalogued, but Kummer kept in the back seat of his patrol car a cellular phone

found in the vehicle. Perez identified the phone as one given to her for use

during the trip. A day or two after the arrest, the phone rang and Kummer

answered it. During the conversation, which was not recorded, the caller asked


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“where the girl or Geronimo was.” R. Vol. III at 425. Kummer, realizing the

caller was asking about Defendant and Perez, quickly ended the conversation and

set up equipment to record subsequent calls. Several conversations were

recorded.

      Perez later identified the recorded voice of the caller as that of the “fat

guy” (the Caller), who had provided her money to rent the vehicle, purchased the

cellular phone for her, and called her on the phone during the trip. Perez also

testified that Defendant introduced her to the Caller and the other individuals who

planned the trip. There was at least one other caller, but only the Caller’s calls

were offered into evidence.

      At trial Defendant sought to exclude as inadmissible hearsay the evidence

of Kummer’s conversations with the Caller. Defendant argued that the statements

could not be admitted under the coconspirator exception, Fed. R. Evid.

801(d)(2)(E), because the conspiracy failed prior to the statements, and that the

statements were not admissible under any other recognized hearsay exceptions.

The district court held a hearing prior to trial, see United States v. James, 590

F.2d 575 (5th Cir. 1979), and admitted the evidence under the coconspirator

exception.

      After being convicted Defendant filed two objections to the Presentence

Investigation Report (PSR). The first objection challenged the PSR’s finding that


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Defendant played a managerial or supervisory role in the conspiracy and was thus

subject to a sentence enhancement under USSG. § 3B1.1(c). Defendant also

objected to the PSR’s finding that his sentence should be enhanced for obstruction

of justice, see USSG § 3C1.1, because he gave false testimony during his trial.

The district court overruled both objections. As to the first, the court noted that

although Defendant did not meet every characteristic of a supervisor or manager,

“there [was] plenty to show in this case that he did, in fact, occupy that position,

and I believe the enhancement is appropriate here.” R. Vol. IV at 623. The court

overruled the second objection on the ground that “[Defendant] lied in a number

of ways; . . . he did, in fact, commit perjury during the course of the trial.” Id. at

625. The court sentenced Defendant to 97 months’ imprisonment.

II. DISCUSSION

         A. Admissibility of the phone conversations

         Defendant may be correct that the conversations between Trooper Kummer

and the Caller were not in furtherance of an ongoing conspiracy. But we need not

resolve that issue, because Defendant has not pointed to any hearsay in those

conversations. We may affirm the district court’s admission of evidence on any

legally correct ground. United States v. Jackson, 88 F.3d 845, 847 (10th Cir.

1996).




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      “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Fed. R. Evid. 801(c). “A ‘statement’ is (1) an oral or written

assertion or (2) nonverbal conduct of a person, if it is intended by the person as

an assertion.” Fed. R. Evid. 801(a). The rule does not define “assertion,” but

“[t]he key to the definition is that nothing is an assertion unless intended to be

one.” Fed. R. Evid. 801(a) cmt. (a).

      It is not apparent to us that any portion of the conversations between

Kummer and the Caller was “offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). The only evidence about the conversations

mentioned in Defendant’s brief on appeal is Kummer’s testimony that the Caller

asked where “the girl” and “Geronimo” were. Aplt. Br. at 5. According to

Defendant, “[t]he mere mention of ‘Geronimo’ by name was devastating to the

defense in this case because it suggested that he had a greater role than that which

was admitted.” Id. at 21. But the Caller’s asking the whereabouts of Geronimo

and the girl is hardly an assertion, much less an assertion whose truth the

prosecution was trying to prove. In a similar context we have said that a question

could not “reasonably be construed to be an intended assertion, either express or

implied. . . . The mere fact . . . that the declarant conveyed a message with her

question does not make the question hearsay.” Jackson, 88 F.3d at 848. Here, the


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Caller’s question about Geronimo’s whereabouts could not reasonably be viewed

as intended to assert that Geronimo was a coconspirator, even though the question

was undoubtedly probative of that fact.

      Perhaps some true hearsay appears within the portions of the conversations

admitted into evidence at trial. But Defendant has not directed our attention to

any; and we suspect that if there was any, it had no impact on the trial.

Accordingly, we reject this claim of error.

      B. The sentence enhancements

      Defendant argues that the sentencing enhancements for his role in the crime

and obstruction of justice violated his Sixth Amendment rights because the facts

supporting them were neither admitted by him nor found by a jury. Because he

raises this issue for the first time on appeal, we review for plain error.

United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc).

Plain error occurs when (1) the district court committed error, (2) the error was

plain, (3) the error affected substantial rights, and (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings. Id. If all four

requirements are met, the reviewing court may exercise its discretion to correct

the error. Id.

      The jury returned a verdict finding Defendant guilty of possessing with

intent to distribute approximately 400 pounds of marijuana, conspiracy to possess


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marijuana with intent to distribute, and interstate travel in aid of racketeering.

The Sentencing Guidelines base-offense level for possession with intent to

distribute 400 pounds (about 181 kilograms) of marijuana is 26. See USSG

§ 2D1.1(c)(7). Because Defendant’s criminal history category was I, the

applicable sentencing range would be 63-78 months’ imprisonment. See USSG

§ 5A. Based on its own fact finding as required by the then-mandatory

guidelines, the district court then enhanced Defendant’s base-offense level two

levels for his role in the offense, see USSG § 3B1.1(c), and two additional levels

for obstructing justice by committing perjury at trial, see USSG § 3C1.1. The

resulting base-offense level, 30, yields a guidelines sentencing range of 97-121

months. The district court imposed a sentence of 97 months, the bottom of the

applicable guidelines range.

      It was constitutional error under Booker for the district court to sentence

Defendant above the guidelines range authorized by the jury-found facts.

United States v. Magallanez, No. 04-8021, slip. op. at 22 (10th Cir. May 17,

2005). The error is both clear and plain. Gonzalez-Huerta, 403 F.3d at 732. But

to justify setting aside the sentence, Defendant must also show that the error

affected his substantial rights and that the court should exercise its discretion to

correct the error because it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id.


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      We need not determine whether the error affected Defendant’s substantial

rights because he fails to establish that failure to notice and correct the error is

both particularly egregious and a miscarriage of justice. Post-Booker the district

court has broad discretion to consider and find facts relevant to sentencing—the

difference is that it now holds additional discretion, subject to reasonableness

review, to depart from the guidelines sentencing range. Magallanez, slip. op. at

21-22. The likelihood that the district court would significantly change

Defendant’s sentence on remand is a relevant consideration when determining

whether imposition of the contested sentence was particularly egregious and a

miscarriage of justice. Id. at 23-24.

      Here, as in Magallanez, the record “strongly suggests that even with greater

latitude, post-Booker, to take the weight of the evidence in support of sentencing

enhancements into account, the court would reach the same conclusion regarding”

the two enhancements. Id. at 24. With respect to the enhancement for

Defendant’s role in the offense, the district court stated:

      I think there was plenty of testimony during the course of the trial,
      which it appears to me the jury believed, that [Defendant’s] role in
      this matter was significantly greater than what [he] would have had
      us believe during his testimony during trial here. It is true that there
      are some things that one would look at to see if he was a supervisor
      or manager that might not be present here, but, on the other hand,
      there’s no question but what he did set the transportation schedule;
      he provided the smuggling vehicle; he physically advised Ms. Perez
      as to the marijuana drop location; he paid Ms. Ortiz. I think there is


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      plenty to show in this case that he did, in fact occupy that position
      and I believe the enhancement is appropriate here.

R. Vol. IV at 623. Although Defendant argues that the facts cited by the court

establish only that he was an important or essential figure, not a decision-maker,

he could be a manager without being the “kingpin” or “boss.” USSG § 3B1.1,

cmt. n.4. He clearly performed management functions.

      As for the obstruction-of-justice enhancement, the court said:

      Well, having had the benefit of sifting through this trial and hearing
      all the testimony, as I make my determination, I want to tell you that
      it’s not simply a matter of whether you believe the testimony of one
      witness and not believe another, but in looking at the entire context
      of this case and all of the facts that were established, I have
      concluded that Mr. Juarez lied in a number of ways; that he did, in
      fact, commit perjury during the course of the trial, and I’m thinking
      specifically about his denying that he knew Veronica Ortiz, when he
      claims that he did not know there was marijuana in the vehicle, and
      yet the trooper said that the smell of raw marijuana was extremely
      strong when he rolled the window down. He denied owning the
      Nextel cell phone, yet he had the card in his billfold that had the
      information about it. And it was just one thing after another. I think
      Mr. Juarez—certainly the Constitution allows defendants the right
      not to have to incriminate themselves, but it doesn’t give the
      defendant the right to get on the witness stand and commit perjury. I
      believe that’s exactly what Mr. Juarez did in this case. I have
      absolutely no hesitation at all in finding that he did, in fact, obstruct
      justice by lying on the witness stand under oath with respect to
      virtually everything involving his involvement in this particular
      offense. Obviously the jury rejected it out of hand as well.

R. Vol. IV at 625-26. Defendant challenges the district court’s findings, but the

evidence at trial amply supported them.



                                          -9-
      Moreover, Defendant has not cited nor did we find anything in the record

that indicates the district court was inclined to impose a sentence outside the

guidelines range. On the contrary, at the sentencing hearing the court stated:

            I’ve considered the nature and the circumstances of this
      offense, as well as Mr. Juarez’ personal characteristics. I think that a
      confinement sentence of 97 months on Counts 1 and 2, and 60
      months on Count 3, all running concurrently, will address sentencing
      objectives required by statute.

R. Vol. IV at 621.

      Accordingly, “[i]n light of the district court’s high degree of confidence in

its finding[s] . . ., the lack of any basis in the record to doubt the [court’s

findings], and the absence of any reason to think the Guidelines range produced

an inappropriate sentence under the facts of this case, a remand would be an

exercise in futility.” Magallanez, slip. op. at 25. As in Magallanez, we

“conclude that [Defendant] has not met his burden of showing that the fairness,

integrity, or public reputation of the proceedings would be imperilled by the

sentence.” Id.

III. CONCLUSION

      For the forgoing reasons, we AFFIRM Defendant’s conviction and

sentence.

                                         ENTERED FOR THE COURT

                                         Harris L Hartz
                                         Circuit Judge

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