                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  OCT 14 2004
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 04-5002
 NOE ROSALES,                                             (D.C. No. 01-CR-4-C)
                                                            (N.D. Oklahoma)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.


       Defendant Noe Rosales pled guilty to possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and was sentenced

to 168 months’ imprisonment. In his initial direct appeal, this court remanded to the

district court for specific factual findings to support its conclusion that Rosales was an

organizer or leader under U.S.S.G. § 3B1.1. On remand, the district court set out its

findings and made no change to Rosales’ sentence. Rosales now challenges the court’s

determination that he was an organizer or leader for purposes of U.S.S.G. § 3B1.1(c). He



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
also contends the government breached the terms of the plea agreement. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

                                             I.

       In Rosales’ initial direct appeal, we summarized the relevant background facts of

his case:

              Noe Rosales was part of a drug conspiracy operating in California,
       Utah, and Oklahoma which involved more than five individuals. The
       conspiracy operated from at least March 1996 to February 2001, although
       Rosales only pleaded guilty to participating in the conspiracy from
       December 2000 onward. Evidence in the record indicates that Rosales was
       second-in-command of the drug conspiracy, under his father’s leadership.
       Although in at least one instance Rosales had to seek his father’s final
       authorization for pricing, Rosales generally set prices for the drugs, directed
       subordinates, and negotiated with customers.
              In February 2001, Rosales personally authorized the sale of two
       pounds of methamphetamine in a recorded telephone conversation with a
       [confidential informant]. Prior to that, Rosales had negotiated with a Drug
       Enforcement Agency (“DEA”) undercover agent and with the [confidential
       informant] for the sale of an additional 965.5 grams of methamphetamine.
              Rosales was indicted along with his co-conspirators for the unlawful
       distribution of methamphetamine and cocaine. Rosales entered into a plea
       agreement with the government in which the government stipulated that
       Rosales was a minor participant in the conspiracy. The plea agreement
       makes it clear, however, that the stipulation is not binding upon the
       sentencing court. Rosales pleaded guilty to one count of “Possession of a
       Controlled Dangerous Substance with Intent to Distribute” in violation of
       21 U.S.C. § 841(a)(1) and (b)(1)(C).

United States v. Rosales, 80 Fed. Appx. 57, 59 (10th Cir. 2003) (Rosales I). At

sentencing, the district court determined Rosales was not a minor participant for purposes

of U.S.S.G. § 3B1.2, and denied his request for a downward adjustment. Instead, the

district court determined Rosales was an organizer or leader for purposes of § 3B1.1 and

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increased his offense level by two points. The district court sentenced Rosales to 168

months’ imprisonment, the lowest possible sentence under the applicable guideline range.

        In his initial direct appeal, Rosales raised several sentencing issues, including two

challenges to the district court’s determinations regarding his role in the offense. Rosales

asserted the district court erred in concluding he was not a minor participant under

§ 3B1.2. We disagreed, concluding a minor participant reduction was not warranted

because Rosales “received a lower offense level by virtue of being convicted of an

offense significantly less serious than warranted by his actual criminal conduct.” Rosales

I, 80 Fed. Appx. at 61. More specifically, we noted that “Rosales’ plea agreement

eliminated a 20-year minimum sentence and reduced his maximum sentence from life to

20 years.” Id. Rosales also argued the district court erred in finding he was an organizer

or leader under § 3B1.1(c), and in imposing a two-level upward adjustment. Because the

district court failed to make specific findings on the record describing its basis for

imposing the § 3B1.1(c) adjustment, we remanded for that purpose.

        On remand, the district court issued written findings of fact, stating in pertinent

part:

        The Court finds that the following facts, which were contained in the PSR
        and not disputed by any party, were proven and support its conclusion that
        Defendant exercised decision-making authority within the organization,
        acted as a manager and supervisor in the commission of the offense, had a
        high degree of participation in planning and organizing the offense and
        exercised a high degree of control and authority over others involved in the
        conspiracy:
                      1. In December 2000, Jorge Sanchez accompanied Defendant

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to Tulsa to collect drug debts. They stayed at a hotel near Fourth
Street and Lewis Avenue and collected $10,000 in approximately
twenty days. They returned to Salt Lake City and on December 23,
2000, Defendant was arrested there on state drug charges.
        2. In January 2001, Marcos Rosales [defendant’s father]
asked Jorge Sanchez to make another trip to Tulsa. Sanchez
complained that he was not paid enough and Rosales agreed to pay
Sanchez $500 per pound of delivered methamphetamine. On
January 11, 2001, Sanchez went to Rosales’ Utah residence where
Marcos Rosales used a neoprene band to secure methamphetamine
packets to Sanchez’s mid-section. Defendant and Aurora Rosales
[defendant’s mother] were in the room when Sanchez was fitted with
the neoprene band. Defendant accompanied Sanchez in a cab to the
Salt Lake City airport. He gave Sanchez a telephone number for his
Tulsa contact, Filberto Rosales. Defendant instructed Sanchez to get
between $10,900 and $11,000 for the pound of methamphetamine.
        3. Confidential sources informed federal investigators of the
trip before Sanchez left Salt Lake City. Tulsa Police and Drug
Enforcement Administration (“DEA”) Agents set up surveillance at
the Tulsa airport to await his arrival on the afternoon of January 11,
2001. These surveillance agents followed Sanchez to 1114 North
Hilton Road in Sapulpa. Investigators had set up DEA Agent Eric
Katz as a methamphetamine buyer in Tulsa. In preparation for a
controlled buy, they arranged [for] two rooms at the La Quinta Inn,
10829 East 41st Street, to be set up with video and audio
surveillance equipment. The room to be used for the “buy” had
cameras and microphones installed inconspicuously and the second
room held the agents who operated the recording equipment. In the
early evening, Sanchez arrived at the hotel room and met with Agent
Katz. He offered a pound of methamphetamine for sale but when
weighed, the amount was somewhat less than a pound. Through an
interpreter, Sanchez told Agent Katz the price was $10,900 but
Agent Katz haggled over the price. During negotiations, Sanchez
called Defendant to authorize a lower price. Agent Katz and
Defendant negotiated on the telephone and finally agreed on $9,500
for the methamphetamine, which had a net weight of 423.8 grams.
During the recorded conversation Defendant and Agent Katz
negotiated the delivery of additional quantities of methamphetamine
and crystal methamphetamine or “ice” from Utah to Tulsa,
Oklahoma. Sanchez returned to Salt Lake City that night and gave

                               4
the money to Defendant. Sanchez was paid $500, which he wired to
his family in Mexico.
       4. On January 18, 2001, Agent Katz met with Pedro Arias-
Garcia in Room No. 110 of the Howard Johnson Motel located at
4724 South Yale, Tulsa, Oklahoma. Arias produced three duct taped
packages that had been driven from Utah to Tulsa, Oklahoma by
Arias. The packages contained a pound of methamphetamine and a
quarter-pound of crystal methamphetamine. When asked why he did
not use commercial aircraft to travel to Tulsa, Arias stated that he
had transported crystal methamphetamine and that if he had been
caught with “crystal” he would have had “big fucking problems.”
Agent Katz told Arias that he had been given a price for the crystal
methamphetamine from Defendant. Agent Katz advised Arias that
the negotiated price for the crystal methamphetamine was $1,500 an
ounce and the methamphetamine was $9,500 per pound. Arias made
two telephone calls in an attempt to locate Marcos Rosales to verify
the prices. A confidential source (“CS”) present in the room was
able to reach Defendant who stated that the pound of
methamphetamine cost $10,500, but they would accept $9,500.
Agent Katz handed Arias $5,000 and stated he would have the
balance of $4,500 shortly. The crystal methamphetamine was
advanced to Agent Katz in order to find a buyer. Arias stated that he
would be leaving for Utah that evening and told Agent Katz to pay
the balance to Sanchez, who would be arriving on February 1, 2001,
with a quantity of cocaine. The d-Methamphetamine and
Amphetamine had a net weight of 541.7 grams.
       5. On February 6, 2001, Defendant, in a recorded telephone
conversation, authorized the CS to sell two-pounds (907.2 grams) of
methamphetamine for $8,500 per pound and advised the CS that he
could keep $500 per pound as payment. The CS relayed to
Defendant his pager number and Defendant told the CS that the code
number for the transaction would be all sevens.
       6. On February 6, 2001, the CS drove to Nanez’s residence at
2206 South 133rd East Avenue, Tulsa, Oklahoma to deliver one
pound of the two-pounds of methamphetamine Defendant authorized
him to sell. The CS went into Nanez’s garage as directed by Nanez.
Once inside, Nanez advised he only wanted to purchase one ounce of
methamphetamine. The CS replied he believed Nanez had requested
one pound, not one ounce, of the drugs. Nanez explained that he
never heard from his customer. After further negotiation, Nanez

                              5
             agreed to purchase the entire amount of drugs, 597 gross grams, the
             CS had with him. Nanez agreed to pay half of the purchase price in
             addition to some cowboy boots up front and pay the remainder at a
             later date. Nanez placed the entire amount of drugs in a box. Then,
             he directed the CS to leave the residence because Nanez was
             expecting a customer to arrive at the house. Nanez directed the CS
             to wait at a local restaurant until Nanez telephoned him. That
             afternoon, Tulsa Police officers executed a search warrant at Jesus
             Nanez’s residence. Officers recovered approximately 597 gross
             grams of methamphetamine from inside a cardboard box in the
             garage. Nanez was placed under arrest. During initial interviews
             with the officers, Nanez denied any knowledge of the
             methamphetamine found in his garage. A laboratory analysis was
             performed on the methamphetamine recovered during the search. It
             was determined that on February 6, 2001, Nanez possessed 539.3 net
             grams of methamphetamine.
                     7. On February 8, 2001, agents with the Salt Lake City, Utah,
             Drug Enforcement Administration conducted an undercover meeting
             with Defendant and Michael Jerome Donald, a.k.a. “Emmitt.” The
             agents rented a room #355 at a Salt Lake City Holiday Inn hotel. At
             approximately 9:00 a.m., Agent Katz contacted Defendant by
             telephone and informed him that he was in room #355 of the hotel
             with a $3,000 payment for Defendant. The money was partial
             payment for approximately one-quarter pound of crystal
             methamphetamine delivered to the agent by Pedro Arias on January
             18, 2001. Defendant advised that he was not in the area of the hotel
             and would send someone else to retrieve the payment.
                     8. Defendant arrived at the hotel room at approximately 9:15
             p.m. and left twenty minutes later. At about midnight, Michael
             Jerome Donald arrived at the hotel room. He was allowed in by the
             undercover agents who handed him the $3,000. Donald counted the
             money and divided it into $500 stacks. One of the agents placed a
             telephone call to Defendant and handed the phone to Donald.
             Donald informed Defendant that the money was “straight.” After the
             brief telephone conversation, Donald placed the money in his pocket
             and left the hotel room.

ROA I, Doc. 379 at 2-4. The district court made no change to Rosales’ sentence.



                                           6
                                             II.

                              Application of U.S.S.G. § 3B1.1(c)

        Rosales contends the district court erred in determining he was an organizer or

leader for purposes of § 3B1.1(c). We review that determination for clear error. See

United States v. Cruz Camacho, 137 F.3d 1220, 1223-24 (10th Cir. 1998) (“we believe

the role of a defendant as a leader or organizer is among the sophisticated factual

determinations a district court makes which depend upon an assessment of the broad

context of the crime”) (internal quotations omitted).

        Section 3B1.1 of the Sentencing Guidelines provides varying “aggravating role”

adjustments to a defendant’s base offense level. In particular, subsection (c) requires that

a defendant’s offense level be increased “by 2 levels” if he “was an organizer, leader,

manager, or supervisor in any criminal activity other than described in [subsections] (a) or

(b).”

               To qualify for an adjustment under this section, the defendant must
        have been the organizer, leader, manager, or supervisor of one or more
        other participants. An upward departure may be warranted, however, in the
        case of a defendant who did not organize, lead, manage, or supervise
        another participant, but who nevertheless exercised management
        responsibility over the property, assets, or activities of a criminal
        organization.

U.S.S.G. § 3B1.1, cmt. n.2.

               In distinguishing a leadership and organizational role from one of
        mere management or supervision, titles such as “kingpin” or “boss” are not
        controlling. Factors the court should consider include the exercise of
        decision making authority, the nature of participation in the commission of

                                              7
       the offense, the recruitment of accomplices, the claimed right to a larger
       share of the fruits of the crime, the degree of participation in planning and
       organizing the offense, the nature and scope of the illegal activity, and the
       degree of control and authority exercised over others. There can, of course,
       be more than one person who qualifies as a leader or organizer of a criminal
       association or conspiracy.

Id., cmt. n.4.

              In relatively small criminal enterprises that are not otherwise to be
       considered as extensive in scope or in planning or preparation, the
       distinction between organization and leadership, and that of management or
       supervision, is of less significance than in larger enterprises that tend to
       have clearly delineated divisions of responsibility. This is reflected in the
       inclusiveness of § 3B1.1(c).

Id., cmt. background.

       Significantly, Rosales does not dispute the validity of any of the underlying factual

findings set forth in the district court’s written order on remand. Instead, Rosales

challenges whether those findings support a determination that he was a leader or

organizer for purposes of § 3B1.1(c). In particular, Rosales contends that none of the

facts found and cited by the district court demonstrate that he “exercised command and

control over others.” Aplt. Reply Br. at 2. According to Rosales, the district court’s

factual findings demonstrate only that he “passed along orders to others from his father,”

and otherwise gave no orders himself. Aplt. Br. at 9. Further, Rosales asserts the district

court’s factual findings do not indicate that he independently established any drug prices.1


       1
         At the original sentencing hearing, Rosales argued he did not qualify as an
organizer or leader because (a) he did not have decision-making authority “with regard to
setting the price of methamphetamine,” ROA III at 10, (b) he “did not recruit any

                                             8
       The flaw in Rosales’ arguments is that they focus exclusively on the “leader” role

under § 3B1.1(c). As noted, however, a § 3B1.1(c) adjustment can be based on a

defendant playing any one of four roles in the offense: “organizer, leader, manager, or

supervisor.” U.S.S.G. § 3B1.1(c); see United States v. Valdez-Arieta, 127 F.3d 1267,

1270-71 (10th Cir. 1997) (discussing distinction between “leading” and “organizing,” and

noting defendant can be subjected to adjustment under § 3B1.1 for performing either

function in the commission of an offense). Thus, even if Rosales did not play a

leadership role in the offense of conviction, he can still be subjected to an adjustment

under § 3B1.1(c) if he played one of the other roles.

       Having carefully examined the record on appeal, we conclude the district court’s

ultimate determination under § 3B1.1(c) was not clearly erroneous. The court’s

subsidiary factual findings clearly indicate that Rosales played an organizational role in

the offense by coordinating and overseeing methamphetamine transactions. See Valdez-

Arieta, 127 F.3d at 1272 (“a defendant may be punished as an organizer under § 3B1.1(c)

for . . . coordinating and overseeing the implementation of the conspiracy even though the

defendant may not have any hierarchical control over the other participants”). For

example, as outlined in paragraph 2 of the district court’s subsidiary factual findings, it

was uncontroverted that Rosales helped make arrangements for another person, Jorge




accomplices,” id., and (c) did not claim “a greater share of money or drugs because of an
elevated position,” id. at 11.

                                              9
Sanchez, to transport methamphetamine from Salt Lake City to Tulsa to complete a sales

transaction. More specifically, Rosales accompanied Sanchez in a cab to the Salt Lake

City airport, gave him “a telephone number for his Tulsa contact,” and instructed him as

to the amount “to get” for the methamphetamine. ROA I, Doc. 379 at 2. Likewise, as

outlined in paragraphs 3, 7, and 8 of the findings, it was uncontroverted that Rosales

arranged for delivery of methamphetamine to a buyer, and subsequently arranged for

collection of proceeds from the buyer (in each instance someone other than Rosales

actually performed the task). In addition to acting as an organizer, it is apparent that

Rosales also played a supervisory role. In particular, it is uncontroverted that Rosales

oversaw the activities of couriers who delivered methamphetamine from Salt Lake City to

Tulsa and, in turn, oversaw the collection of proceeds from buyers. In addition, it was

uncontroverted that Rosales oversaw negotiations between couriers and buyers, assisting

in determining prices for the methamphetamine.

       Thus, even though Rosales’ father may have been the true “leader” in the drug

organization, we agree with the district court that Rosales acted as an organizer or leader

in the offense, and therefore was properly subjected to a 2-level increase pursuant to

§ 3B1.1(c).

                                 Breach of plea agreement

       Rosales contends the government breached the terms of the plea agreement by

arguing before this court in Rosales I that the district court acted properly in applying a 2-


                                              10
level adjustment under § 3B1.1(c) due to Rosales’ role as an organizer or leader.

Although the plea agreement makes no mention of § 3B1.1(c), Rosales argues that, in

light of the government’s stipulation that he was entitled to a minor participant

adjustment under § 3B1.2(b), it was reasonable to expect the government “to refrain from

arguing the exact opposite,” i.e., “that he deserved a two-level upward adjustment under

. . . § 3B1.1 .” Aplt. Br. at 13.

       We conclude it is unnecessary to address this issue. Under the express terms of the

plea agreement, the only remedy available to Rosales is withdrawal of his guilty plea. See

ROA I, Doc. 200 at 9 (“In the event either party believes the other has failed to fulfill any

obligations under this agreement, then the complaining party shall, in its discretion, have

the option of petitioning the Court to be relieved of its obligations herein.”); see also

United States v. Berger, 251 F.3d 894, 909-10 (10th Cir. 2001) (indicating, in case

involving identical plea agreement language, that “the appropriate remedy” was to give

defendant “an opportunity to withdraw from the agreement”). However, it is clear from

Rosales’ appellate pleadings, as well as his counsel’s statements at oral argument, that he

does not seek that remedy (a review of the record demonstrates why – he was allowed to

plead guilty to a substantially lesser offense than the one originally charged). Absent a

request by Rosales to withdraw his guilty plea, it would be a pointless exercise for us to

determine whether the government’s actions violated the terms of the plea agreement.

                       Supplemental authority - Blakely v. Washington


                                              11
       Approximately two weeks before oral argument, Rosales submitted a letter to the

court pursuant to Federal Rule of Appellate Procedure 28(j) citing the Supreme Court’s

recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Assuming Rosales’

letter is intended to raise a new issue, i.e., that he had a Sixth Amendment right to a jury

trial on his federal sentencing enhancements, we reject the issue. See United States v.

Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003) (refusing to address issue asserted for

first time in supplemental authority letter filed pursuant to Rule 28(j)); see also United

States v. Levy, 379 F.3d 1241, 1242-44 (11th Cir. 2004) (refusing to entertain Blakely-

based argument raised for first time in appellant’s petition for rehearing); id. at 1244

(concluding language of Rule 28(j) “underscores that an appellant’s supplemental

authority must relate to an issue previously raised in a proper fashion, and that an

appellant cannot raise a wholly new issue in a supplemental authority letter or brief”).

       The judgment of the district court is AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                             12
