                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    May 1, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 12-8083
 v.                                          (D.Ct. No. 1:10-CR-00203-SWS-1)
                                                          (D. Wyo.)
 JOSE ALVAREZ,

          Defendant - Appellant.
                        ______________________________

                              ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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). The case is

therefore ordered submitted without oral argument.

      Appellant Jose Alvarez appeals his 360-month sentence for conspiracy to

possess with intent to distribute, and to distribute, methamphetamine, cocaine,


      *
         This order and judgment is not binding precedent except under the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.
and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He

alleges his sentence is procedurally unreasonable based on a miscalculation of the

drug quantity attributable to him and is substantively unreasonable because the

sentence imposed is greater than necessary under the 18 U.S.C. § 3553(a)

sentencing factors. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291 and affirm Mr. Alvarez’s sentence.

                      I. Factual and Procedural Background

      Testimony provided by the government at trial established Mr. Alvarez’s

involvement as a supplier in a conspiracy to distribute drugs and that, as part of

that conspiracy, Patrick Blake purchased drugs from Mr. Alvarez in Colorado and

then sold and distributed them to several others, including Jack Boller in Gillette,

Wyoming. As a key government witness, Mr. Blake testified as to the type and

estimated amounts of drugs he obtained from Mr. Alvarez and the approximate

dates he received those drugs. Other witnesses, who were involved in the

conspiracy, purchased drugs distributed by Mr. Alvarez, or otherwise witnessed

his drug transactions, also testified as to drugs distributed through Mr. Alvarez,

including Juan Franco, who sometimes delivered drugs to Mr. Blake on behalf of

Mr. Alvarez. Based on this evidence, a jury convicted Mr. Alvarez of the drug

trafficking conspiracy charged.

      In calculating Mr. Alvarez’s sentence, the probation officer relied on trial

testimony to determine the type and amount of drugs attributable to him and

                                         -2-
determined in a revised presentence report he was responsible for:

      1) one pound of methamphetamine from March through mid-April
      2008;

      2) eight pounds of methamphetamine from late April until the end of
      the summer of 2008;

      3) three pounds of methamphetamine for the fall of 2008;

      4) five pounds of methamphetamine for the summer of 2009;

      5) fifty pounds of marijuana and 1.5 kilograms of cocaine from late
      2008 through 2009; and

      6) one pound of methamphetamine delivered to “Shorty,” or Amanda
      Bullock, during 2008 and 2009.

The probation officer then converted the 1.5 kilograms of cocaine to 300

kilograms of marijuana; eighteen pounds of methamphetamine to 16,329.6

kilograms of marijuana; and fifty pounds of marijuana to 22.68 kilograms of

marijuana, for a total equivalent of 16,652,28 kilograms of marijuana and a base

offense level of 36. After adding a two-level enhancement for Mr. Alvarez’s role

as a manager and supervisor, the probation officer calculated the adjusted offense

level at 38 but, alternatively, determined his base offense level was 37 if his

qualification as a career offender under the United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”) was applied. The probation officer also determined

his criminal history category was V, but because he qualified as a career offender,

she adjusted his criminal history category to VI. Using the adjusted offense level

of 38, because it was greater than the base offense level of 37 for his career

                                         -3-
offender status, she calculated his Guidelines range at 360 months to life

imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Mr. Alvarez filed

his objections to the calculation of his sentence based on the drug quantities used

and requested a below-Guidelines sentence pursuant to the 18 U.S.C. § 3553(a)

sentencing factors. He made only a summary objection to the finding he qualified

as a career offender.

      At the sentencing hearing, the government sought a four-pound reduction of

methamphetamine from the total drugs attributed to Mr. Alvarez, explaining the

presentence report did not take into account the fact he stopped selling drugs for a

two-month period, beginning around June 12, 2008, after a raid at another

person’s house. In turn, Mr. Alvarez continued to object to the quantity

calculations and argued a 360-month sentence failed to take into account his

history and characteristics, including the over-representation of his criminal

history based on a juvenile conviction, his difficult upbringing, his assertion he

did not commit a crime of violence, and the fact a 360-month sentence would be

greater than necessary under § 3553(a). He did not renew his objection to his

career offender status.

      The district court granted the requested four-pound reduction but concluded

it did not affect the base offense level of 36 because Mr. Alvarez’s relevant




                                         -4-
conduct still involved over 10,000 kilograms of marijuana. 1 See U.S.S.G.

§ 2D1.1(c)(2). In addressing Mr. Alvarez’s objections, the district court

explained the government’s witnesses’ estimated drug quantities were credible

based on its observation of them at trial, and the estimated amounts had some

basis of support in fact and an indicia of reliability for the purpose of proving the

drug quantities by a preponderance of the evidence. In making this

determination, the district court stated it observed Mr. Blake testify and found

him credible, as opposed to Mr. Boller, who, in a proffered statement, discussed

lesser drug quantities. It also pointed out it used the most conservative drug

weights in calculating Mr. Alvarez’s sentence.

      With respect to the § 3553(a) sentencing factors, the district court

determined: 1) Mr. Alvarez’s criminal history was not over-represented as he

qualified as a career criminal, even without considering his contested juvenile

conviction; 2) his criminal history involved dangerous, violent conduct which put

lives at risk and caused injury; 3) he acted as a “pretty sophisticated dealer”

rather than “a bit player ... at the bottom of the food chain”; 4) he participated in


      1
        While the government stated the four-pound reduction resulted a total
equivalency of 13,704.6 kilograms of marijuana, our calculations, using the
applicable conversion and equivalency tables, result in a total of 12,700.8
kilograms. Regardless of which total is applied, the amount is between 10,000
and 30,000 kilograms for the purpose of applying a base offense level of 36,
which, when combined with his role enhancement, results in a total offense level
of 38. See U.S.S.G. § 2D1.1(c) & cmt. n.10(D) (Drug Quantity and Equivalency
Tables and Measurement Conversion Table).

                                         -5-
“an extended, protracted and substantial drug conspiracy,” involving

methamphetamine “piped into Loveland, Fort Collins, and ... [the] Gillette,

Wyoming areas”; 5) his prior sentences did not deter him from engaging in illegal

conduct; and 6) a Guidelines sentence would reflect the seriousness of the

offense, deter him from engaging in similar activity, promote respect for the law,

and protect the public from further crimes committed by him and others. In

imposing a sentence at the low end of the Guidelines range, it stated it “probably

could go higher,” but it believed a sentence of 360 months was sufficient but not

greater than necessary for the purposes of 18 U.S.C. § 3553(a).

                                   II. Discussion

      On appeal, Mr. Alvarez renews his contentions the district court imposed a

procedurally unreasonable sentence based on insufficient evidence in support of

the drug quantity calculations and claims the following quantities are attributable

to him: 1) three ounces of methamphetamine, instead of a pound, from March to

mid-April 2008; 2) only one pound and one ounce, rather than four pounds, from

April until mid-June 2008 based on the proffer of Mr. Boller; and 3) only two and

one-half pounds, instead of three to four pounds, for the fall of 2008 based on the

testimony of Mr. Franco. He further challenges the testimony of the

government’s witnesses on grounds they are “unreliable drug dealers” testifying

from memory, under pressure, and for the purpose of receiving reduced sentences.

He also claims the district court double counted the drug amounts for the summer

                                         -6-
of 2009 and renews his contention his sentence is substantively unreasonable in

light of his criminal history and characteristics.

      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802, 805-06 (10 th Cir. 2008). “Our appellate review for reasonableness

includes both a procedural component, encompassing the method by which a

sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. In determining whether the district

court properly applied the Guidelines in calculating the sentence, we review its

legal conclusions de novo and its factual findings for clear error. See United

States v. Kristl, 437 F.3d 1050, 1054 (10 th Cir. 2006) (per curiam). We review a

district court’s factual findings on drug quantities for clear error, reversing only if

its findings are without factual support in the record or we are left with the

definite and firm conviction a mistake was made. See United States v. Foy, 641

F.3d 455, 468 (10 th Cir. 2011). When the drugs underlying a drug quantity

determination are not seized, the district court may rely on an estimate to

establish a defendant’s Guidelines offense level “so long as the information relied

upon has some basis of support in the facts of the particular case and bears

sufficient indicia of reliability.” Id. at 468-69. The testimony of an accomplice

or co-conspirator is a credibility issue to be resolved by the fact finder, see

United States v. Magallanez, 408 F.3d 672, 682 (10 th Cir. 2005), and even an

                                          -7-
accomplice’s or co-conspirator’s “uncorroborated” testimony may be sufficient to

support a conviction or sentence. See id.; United States v. Deninno, 29 F.3d 572,

578 (10 th Cir. 1994).

      With these principles in mind, we reject Mr. Alvarez’s argument the district

court erred in calculating the drug quantities and his adjusted base offense level.

While the drugs involved in the conspiracy were not seized, its findings on the

quantities of drugs attributable to Mr. Alvarez are supported by the record based

on Mr. Blake’s estimates of those quantities, regardless of whether some of the

quantities were not corroborated by other witnesses. With regard to Mr. Blake,

the district court explicitly deemed his testimony credible, as did the jury in

convicting Mr. Alvarez, and it is evident from the record that, in crediting his

testimony, the district court and the jury knew he participated in the drug

trafficking conspiracy with Mr. Alvarez and entered into a plea agreement with

the government with the possibility of a lesser sentence if he cooperated and/or

provided substantial assistance to the government. The same is true with respect

to the other witnesses, who also testified they entered into plea agreements and

corroborated much of Mr. Blake’s testimony with respect to Mr. Alvarez’s

involvement in the conspiracy.

      In addition, the district court explicitly addressed the inconsistencies in the

evidence raised by Mr. Alvarez, explaining it relied on Mr. Blake’s testimony

rather than the proffered statement of Mr. Boller as to the quantities Mr. Blake

                                         -8-
received from Mr. Alvarez during the conspiracy. Mr. Boller did not testify at

trial for the purpose of evaluating his credibility, and the record establishes he

was not involved in the transactions between Mr. Blake and Mr. Alvarez, thereby

explaining why Mr. Boller’s estimated drug amount he received from Mr. Blake

differed from Mr. Blake’s estimate of the total amount of drugs he received from

Mr. Alvarez. Similarly, while another co-conspirator, Mr. Franco, testified as to

the quantity of methamphetamine he sold to Mr. Blake on Mr. Alvarez’s behalf,

his testimony did not cover the amounts Mr. Blake received directly from Mr.

Alvarez, thereby again explaining why Mr. Blake’s drug quantities were different.

Finally, the district court’s calculation of the amount of methamphetamine Mr.

Alvarez sold to Mr. Blake during the summer of 2009 did not constitute double

counting as it was based on the amount he received directly from Mr. Alvarez

during that period. As a result, we reject Mr. Alvarez’s inaccurate portrayal of

the government’s witnesses’ testimony for the purpose of disputing the drug

quantities applied.

      Because the drug quantities used in calculating Mr. Alvarez’s sentence

have factual support in the record, they are not clearly erroneous and we are not

otherwise left with a definite and firm conviction a mistake was made. Moreover,

as the government suggests, even without these calculations, Mr. Alvarez’s status

as a career offender results in the same Guidelines range of 360 months to life




                                          -9-
imprisonment, 2 and nothing in the record indicates the district court would have

imposed a lesser sentence had it solely applied the career offender guidelines.

      Having determined Mr. Alvarez’s sentence is procedurally reasonable, we

turn to its substantive reasonableness. If the sentence is within the correctly-

calculated Guidelines range, we may apply a rebuttable presumption of

substantive reasonableness. Kristl, 437 F.3d at 1054-55. Because Mr. Alvarez’s

sentence is within the correctly-calculated Guidelines range, we apply a

presumption of reasonableness which he must rebut in light of the sentencing

factors in § 3553(a). In imposing a sentence at the low end of the Guidelines

range, the district court explicitly discussed the sentencing factors in 18 U.S.C.

§ 3553(a) and we discern no substantive error. Mr. Alvarez has not shown his

history or characteristics are sufficiently compelling for the purpose of making

his 360-month sentence unreasonable, especially in light of the reasons set forth

by the district court in support of the length of the sentence imposed. Thus, Mr.

Alvarez has not sufficiently rebutted the presumption his Guidelines sentence is

substantively reasonable.




      2
        Specifically, his base offense level of 37 for being a career offender,
together with his criminal history category of VI, also results in a Guidelines
range of 360 months to life imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing
Table).

                                        -10-
                         III. Conclusion

For the reasons contained herein, we AFFIRM Mr. Alvarez’s sentence.

                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




                               -11-
