                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 27 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-3056
                                               (D.C. No. 00-CR-20055-01-KHV)
    JUAN RAMON PRIETO-ZUBIA,                              (D. Kansas)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.



         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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Defendant Juan Ramon Prieto-Zubia appeals the sentence he received

pursuant to his guilty plea to the charge of possession with intent to distribute


*
      This order and judgment is not binding precedent, except under the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.
cocaine. He challenges the district court’s decision to increase his offense level

by three levels based on its finding that he was a manager or supervisor in the

drug transaction in which he participated. We exercise jurisdiction pursuant to 28

U.S.C. § 1291, and reverse and remand for resentencing.

      Mark Cardwell transported cocaine in an automobile from Texas to Kansas

City, where the car was transferred to Mr. Prieto-Zubia. Mr. Prieto-Zubia and an

accomplice then drove it to a house in Kansas City where the authorities stopped

the car, discovered the cocaine, and arrested the car’s occupants. Mr. Prieto-

Zubia was charged in a two-count indictment with conspiracy to possess with

intent to distribute cocaine and possession with intent to distribute cocaine. He

entered a guilty plea to the possession count and the conspiracy count was

dismissed. The district court sentenced Mr. Prieto-Zubia to 97 months'

imprisonment.

      The sole question raised by Mr. Prieto-Zubia on appeal is whether the

district court erred in applying a three-level enhancement to his offense level

pursuant to U.S.S.G. § 3B1.1(b). 1 According to Mr. Prieto-Zubia, the district

court erred in finding that he was a manager or supervisor of the criminal activity

with which he was involved. We review the district court’s determination for


1
      Section 3B1.1(b) mandates a three-level increase “[i]f the defendant was a
manager or supervisor (but not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise extensive.”

                                         -2-
clear error. See United States v. Cruz Camacho, 137 F.3d 1220, 1223-24 (10th

Cir. 1998) (addressing § 3B1.1(a)).

      The parties stipulated, as part of the plea agreement, that Mr. Prieto-Zubia

“was not an organizer, leader, manager, or supervisor of criminal activity as

defined by U.S.S.G. § 3B1.1.” ROA, Doc. 67, Plea Agreement at 3. 2 The

presentence report, however, found otherwise. Summarizing Drug Enforcement

Administration (DEA) reports, the presentence report indicated that Mr. Prieto-

Zubia was the person contacted when Cardwell arrived in the Kansas City area,

and that he instructed Caldwell to check into a certain motel and arranged the

exchange of the car containing the cocaine. ROA, Vol. IV at 5, ¶ 15. The

presentence report further indicated, again based upon DEA reports, that Mr.

Prieto-Zubia recruited Cardwell to act as a drug courier, and was one of the

sources of the cocaine. Id. ¶ 16. Based upon these facts, the presentence report

proposed enhancing Mr. Prieto-Zubia’s sentence by three levels pursuant to

§ 3B1.1(b).

      Mr. Prieto-Zubia timely objected to the portions of the presentence report

discussing the proposed application of § 3B1.1(b). Although he admitted that the

presentence report accurately summarized the information contained in the DEA


2
       Neither party argues that the district court was bound by the parties’
stipulation. See U.S.S.G. § 6B1.4(d) (stating that district court is not bound by
stipulation of facts in a plea agreement).

                                        -3-
reports, ROA, Vol. III at 22, he objected to the factual accuracy of the

information. Id. (“And I have disputed the points labeled in [paragraphs] 15 and

16 [of the presentence report].”). The government presented no evidence in

response to the objection. Instead, government counsel explained why it was the

government’s position that Mr. Prieto-Zubia was not a manager or supervisor

within the meaning of § 3B1.1(b). Id. at 16-18. The district court ultimately

overruled Mr. Prieto-Zubia’s objection and applied the three-level enhancement

under § 3B1.1(b) as recommended by the presentence report. Id. at 24 (“And as I

said before, I think that the three-level increase is where it should be, and I stand

behind the presentence report on this particular point, so your objection is

overruled.”).

      We conclude the district court erred in applying § 3B1.1(b). When

sentencing a criminal defendant, a district court may rely on facts stated in the

presentence report unless the defendant objects to them. United States v. Keifer,

198 F.3d 798, 800 (10th Cir. 1999). If “a defendant objects to a fact in a

presentence report, the government must prove that fact at a sentencing hearing

by a preponderance of the evidence.” Id. In such circumstances, “‘the district

court may not satisfy its obligation [to find the facts] by simply adopting the

presentence report as its finding.’” Id. (quoting United States v. Farnsworth, 92

F.3d 1001, 1011 (10th Cir. 1996)). Here, Mr. Prieto-Zubia timely objected to key


                                          -4-
facts in the presentence report pertaining to his alleged role as a manager or

supervisor. The government, rather than presenting evidence to the district court

in an attempt to prove those facts, essentially agreed with Mr. Prieto-Zubia’s

position (presumably because it was bound by the stipulation in the plea

agreement). Notwithstanding the government’s failure to present any evidence,

the district court adopted the facts as set forth in the presentence report and

applied a three-level enhancement under § 3B1.1(b). Under Keifer, this was

improper.

      Accordingly, the judgment of the district court is REVERSED, and the

matter is REMANDED for resentencing.

                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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