                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   May 19, 2011
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 10-3138
 v.                                           (D.C. No. 5:09-CR-40061-SAC-1)
                                                         (D. of Kan.)
 PASCUAL VAZQUEZ-VILLA,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, SEYMOUR, and ANDERSON, Circuit Judges.



      After a federal jury convicted Pascual Vazquez-Villa of various drug

offenses—including possession with intent to distribute more than 500 grams of a

mixture containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1)—the

district court sentenced him to 25 years’ imprisonment. On appeal, Vazquez-

Villa challenges the district court’s evidentiary rulings and sentencing decision.

We conclude the district court did not commit reversible error in admitting

evidence relating to the search of Vazquez-Villa’s vehicle; allowing testimony

      *
         This order and judgment is not binding precedent except under the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.
regarding threats to witnesses; or sentencing Vazquez-Villa to 25 years’

imprisonment.

      Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                 I. Background

      From 2008 to 2009, the Kansas Bureau of Investigation (KBI) conducted an

extensive narcotics investigation that eventually led officers to Vazquez-Villa’s

Kansas-based methamphetamine enterprise. Through wire taps and other

surveillance, KBI agents learned Vazquez-Villa was a leader in a conspiracy

spanning multiple states and involving at least seven other conspirators.

      The investigation culminated in June 2009, when Kansas police searched

Vazquez-Villa’s residence and trailer and seized more than 500 grams of

methamphetamine, nearly $100,000 in cash, and paraphernalia associated with

narcotics distribution. Vazquez-Villa was arrested and charged with one count of

conspiring to possess with the intent to distribute 500 grams or more of

methamphetamine mixture; one count of possessing with the intent to distribute

500 grams or more of methamphetamine; and eleven counts of unlawfully using a

communication facility in furtherance of the conspiracy. See 21 U.S.C. §§ 846

(Count 1), 841(a)(1) (Count 2), and 843(b) (Counts 3–13).

      At trial, numerous governmental witnesses testified about KBI’s

investigation—including its search of Vazquez-Villa’s vehicle, residence, and

trailer—and several other witnesses provided details of Vazquez-Villa’s

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methamphetamine trafficking enterprise. For example, Renato Garcia-Medina

described his role in selling methamphetamine for Adam Molina, a significant

methamphetamine distributor and one of Vazquez-Villa’s drug sources; he also

testified about receiving a telephone call from Vazquez-Villa, who told Garcia-

Medina that “he wanted methamphetamine.” R., Vol. IV at 392. Alleged co-

conspirator Jose Aranda-Meza offered similar testimony.

      Furthermore, Vazquez-Villa’s brother-in-law testified about an incident

where Molina left him approximately one pound of methamphetamine to give to

Vazquez-Villa, and another where the brother-in-law stored a box of

methamphetamine for Vazquez-Villa. The jury also heard evidence obtained from

wiretap surveillance and police searches.

      A federal jury found Vazquez-Villa guilty on all counts. According to the

presentence investigation report (PSR) and the United States Sentencing

Guidelines (USSG), Vazquez-Villa was subject to a base offense level of 38 and a

criminal history category of I. The PSR applied a two-level enhancement because

the offense involved the importation of methamphetamine, USSG

§ 2D1.1(b)(5)(A), and a four-level enhancement because Vazquez-Villa was “an

organizer or leader of a criminal activity that involved five or more participants

or was otherwise extensive,” id. § 3B1.1(a). This yielded a total offense level of

44, but the PSR correctly set Vazquez-Villa’s total offense level as 43, because an

“offense level of more than 43 is to be treated as an offense level of 43.” USSG

                                         -3-
ch. 5, pt. A, cmt. n.2. At this offense level, the USSG recommends a life

sentence.

      The district court accepted the PSR’s findings but applied a downward

variance and sentenced Vazquez-Villa to 25 years’ concurrent custody on the first

two counts, and four years’ concurrent custody on the remaining eleven

counts—for a total of 25 years’ imprisonment.

                                  II. Discussion

      On appeal, Vazquez-Villa argues the district court (1) erred in admitting

evidence associated with the search of his vehicle; (2) erred in admitting

testimony regarding threats to prosecution witnesses; and (3) issued a

procedurally and substantively unreasonable sentence. After a thorough review of

the record, we conclude all three arguments lack merit.

      A. Suppression of Evidence

      Vazquez-Villa first contends a search of his vehicle was the result of an

illegal traffic stop. He argues the officers lacked a reasonable suspicion to pull

him over, and the resulting search and evidence gathered from the search should

be suppressed.

      In February 2009, after intercepting a phone call involving Vazquez-Villa,

agents determined he was traveling in Kansas with a shipment of

methamphetamine. Upon request from the KBI, local police located and stopped

Vazquez-Villa’s vehicle and deployed a drug dog, which alerted near the front of

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the vehicle. An officer searched the vehicle but found nothing illicit and let

Vazquez-Villa continue his drive. Shortly after the stop, however, KBI agents

intercepted a call in which Vazquez-Villa told Molina, a known drug source, that

the police had stopped him. The jury heard testimony regarding the traffic stop

and Vazquez-Villa’s conversation with Molina. The evidence supported the

government’s contention that Vazquez-Villa was involved in drug distribution.

      Vazquez-Villa argues the admission of this testimony violated the Fourth

Amendment and affected the trial’s outcome. By not moving to suppress

evidence relating to this traffic stop and vehicle search, however, Vazquez-Villa

waived his right to appeal the district court’s evidentiary decision. Under Federal

Rule of Criminal Procedure 12(e), a party waives the right to seek suppression of

evidence if he fails to file a pretrial motion to suppress pursuant to Rule

12(b)(3)(C). See United States v. Burke, 633 F.3d 984, 987–88 (10th Cir. 2011).

“Accordingly, . . . Rule 12’s waiver provision, not Rule 52(b)’s plain error

provision, governs motions to suppress evidence, including specific arguments to

suppress evidence, raised for the first time on appeal. Such motions and

arguments are waived absent a showing of good cause for why they were not

raised below.” Id. at 991; see also United States v. Hamilton, 587 F.3d 1199,

1213 (10th Cir. 2009) (“When a motion to suppress evidence is raised for the first

time on appeal, we must decline review.”) (quotation omitted).




                                         -5-
      Here, because Vazquez-Villa has not suggested any reason why he failed to

file a pretrial motion to suppress, he has waived the right to contest the district

court’s decision to admit evidence relating to the traffic stop. 1

      B. Testimony Regarding Threats to Witnesses

      Next, Vazquez-Villa argues the district court abused its discretion in

permitting testimony regarding threats to prosecution witnesses. He asserts this

testimony was more prejudicial than probative and should have been excluded

under Federal Rule of Evidence 404(b). He specifically contends the testimony

was only marginally relevant and was designed to inflame the passion of the jury.

      Because Vazquez-Villa advances this argument for the first time on appeal,

we review only for plain error. 2 See F ED . R. C RIM . P. 52(b); United States v. Poe,

556 F.3d 1113, 1128 (10th Cir. 2009). Under plain error review, we may not

reverse unless we find “(1) error, (2) that is plain, and (3) that affects substantial

rights. If all three conditions are met, [we] may then exercise [] discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of [the] judicial proceedings.” United States v.

Balderama-Iribe, 490 F.3d 1199, 1203–04 (10th Cir. 2007) (quotation omitted).



      1
         Even absent waiver, evidence supported the reasonableness of the traffic
stop, and no showing was made that the canine sniff prolonged the stop.
      2
        Vazquez-Villa appropriately concedes that “no contemporaneous
objection was made to the admission of [threat] evidence and thus it must be
reviewed under the plain error standard.” Aplt. Br. at 20.

                                           -6-
Under the third prong, the error affects substantial rights only if it has affected

the outcome of the district court proceedings. Morales-Fernandez v. INS, 418

F.3d 1116, 1124 (10th Cir. 2005). Vazquez-Villa bears the burden of

demonstrating plain error. Id.

      Given this standard, the district court did not commit reversible error by

admitting testimony regarding alleged threats to witnesses because (1) testimony

regarding threats to Vazquez-Villa’s brother-in-law was admissible under Federal

Rule of Evidence 404(b), and (2) the admission of testimony regarding alleged

threats to Jose Aranda-Meza, a governmental witness, was harmless and did not

affect the outcome of the proceedings.

             1. Testimony of Vazquez-Villa’s Brother-in-Law

      Vazquez-Villa’s brother-in-law, a prosecution witness, testified that his

sister threatened him in an attempt to dissuade him from testifying. According to

the brother-in-law, his wife threatened that if he testified for the prosecution, he

would never see his children again. Another prosecution witness corroborated

this account. Vazquez-Villa purportedly told the witness that if his brother-in-law

testified, “[Vazquez-Villa] would make sure that he lost his wife and his kids.”

R., Vol. V at 618.

      The district court did not err in admitting this testimony. Federal Rule of

Evidence 404(b) provides that “evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in

                                          -7-
conformity therewith.” Under this rule, however, “[e]vidence of threats to a

prosecution witness is admissible as showing consciousness of guilt if a direct

connection is established between the defendant and the threat . . . .” United

States v. Smith, 629 F.2d 650, 651 (10th Cir. 1980) (citations omitted) (emphasis

added); see also F ED . R. E VID . 404(b) (evidence of bad acts is admissible to prove

“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident”).

      Accordingly, we have held that “a defendant’s threat against a potential

witness is generally admissible under Rule 404(b)” because “such threats show

the defendant’s intent to prevent the witness from testifying, and are thus an

implicit acknowledgment of the defendant’s guilt.” United States v. Nichols, 374

F.3d 959, 967 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1113 (2005).

      Because Vazquez-Villa is closely related to his sister and her husband, and

because of the corroborating testimony, a “direct connection” existed between the

threats and the defendant, and the content of the threats was evidence of Vazquez-

Villa’s “consciousness of guilt.” See Smith, 629 F.2d at 652. Although the threat

was made by Vazquez-Villa’s sister, the threat was traceable to Vazquez-Villa,

independently corroborated, and probative of Vazquez-Villa’s guilt.

      Thus, evidence regarding the threat to Vazquez-Villa’s brother-in-law was

admissible under Rule 404(b). Further, even if the district court did err in

admitting the testimony, the error was not plain. Vazquez-Villa points to no

                                          -8-
authority—and indeed, we find none—stating that testimony regarding threats of

the sort made are categorically inadmissible. See United States v. Wardell, 591

F.3d 1279, 1297–98 (10th Cir. 2009) (to constitute plain error, the district court’s

decision must have been contrary to well-settled law of this circuit or the

Supreme Court).

             2. Testimony of Jose Aranda-Meza

      The jury also heard that Vazquez-Villa indirectly threatened Jose Aranda-

Meza, a governmental witness and one of Vazquez-Villa’s close acquaintances.

Aranda-Meza testified that, while in jail, an unidentified inmate told him

Vazquez-Villa knew Aranda-Meza was “talking.” R., Vol. IV at 460. In

response, Aranda-Meza said he “had not talked yet” and called the inmate’s

suggestion “a lie.” Id. The inmate then remarked, “You know how this is.” Id.

Aranda-Meza interpreted this as a threat, even though he did not know the

identity of the person issuing the threat or the threat-maker’s relationship to

Vazquez-Villa. Nothing the inmate said directly connected the threat to Vazquez-

Villa, and further, it is was not clear from Aranda-Meza’s testimony whether the

exchange unequivocally constituted a threat. Aranda-Meza acknowledged on the

stand that the inmate did not threaten violence.

      Even if the district court ‘s decision to admit this testimony was erroneous,

the testimony did not affect the outcome of the trial. Under the third prong of the

plain error standard, a defendant must show the error prejudices “substantial

                                         -9-
rights” by affecting the outcome of the district court proceedings. Morales-

Fernandez, 418 F.3d at 1124. The record here demonstrates Aranda-Meza’s

threat-related testimony was, at most, a marginal aspect of the government’s case,

and in any event it did not send a clear message to the jury that Vazquez-Villa

threatened a prosecution witness. It suggested only that Aranda-Meza had some

fear of reprisal for his testimony. Vazquez-Villa himself acknowledges Aranda-

Meza testified in a “convoluted fashion,” and it is plain the jury would have had

to make a significant inferential leap before concluding Vazquez-Villa threatened

Aranda-Meza. See Aplt. Br. at 21.

      Most importantly, any improper inference the jury may have drawn from

the testimony was rendered inconsequential by the overwhelming evidence

inculpating Vazquez-Villa—including the detailed testimony of many prosecution

witnesses, recordings of wiretapped conversations, and physical evidence seized

from Vazquez-Villa’s property. As a result, Vazquez-Villa suffered no prejudice

from Aranda-Meza’s testimony.

      Finally, it is clear from the record that Aranda-Meza’s testimony did not

prejudice the district court’s sentencing decision. In sentencing Vazquez-Villa,

the district court explicitly disregarded testimony regarding threats to witnesses,

and it applied a significant downward variance. For these reasons, Vazquez-Villa

has not shown the district court committed plain error.




                                         -10-
      C. Reasonableness of Vazquez-Villa’s Sentence

      Finally, Vazquez-Villa challenges the reasonableness of his 25-year

sentence. He contests the PSR’s factual findings, as adopted by the district court,

and he argues his sentence was too severe, in light of the 18 U.S.C. § 3553(a)

factors. These arguments are unavailing.

      Our review for reasonableness encompasses both a procedural component,

where we assess the district court’s application of the USSG and its calculation of

the sentencing range, as well as a substantive component, where we consider the

length of the sentence imposed. See United States v. Kristl, 437 F.3d 1050, 1055

(10th Cir. 2006). Procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence.” Gall v. United

States, 552 U.S. 38, 51 (2007).

             1. Procedural Reasonableness

      The PSR held Vazquez-Villa accountable for 18.32 kilograms of

methamphetamine, which corresponded to a base offense level of 38. In addition,

the PSR added a two-level enhancement because Vazquez-Villa’s offense

involved the importation of methamphetamine from Mexico, USSG

§ 2D1.1(b)(4)(A), and a four-level enhancement because Vazquez-Villa was an

“organizer or leader” of criminal activity that involved five or more participants,

                                        -11-
id. § 3B1.1(b). The district court adopted the PSR’s factual findings and

recommendations, and it accordingly calculated Vazquez-Villa’s total offense

level as 43, which resulted in an advisory sentence of life imprisonment.

Nevertheless, the district court applied a significant downward variance under

§ 3553(a) and sentenced Vazquez-Villa to 25 years’ imprisonment.

      During sentencing, Vazquez-Villa did not object to his sentence or the facts

found in the PSR, but he now claims the district court’s offense-level and

guidelines calculations were factually unsupportable. Specifically, Vazquez-Villa

claims he should have been held liable for at most 9.03 kilograms of

methamphetamine—and perhaps fewer than 5 kilograms—and further that neither

of the enhancements applied by the district court were based in fact.

      Because Vazquez-Villa did not contest the district court’s factual findings

during sentencing, he has waived his right to appeal this issue. Federal Rule of

Criminal Procedure 32 “requires the defendant to affirmatively point out any fact

in the PSR that he contends is inaccurate. Absent an objection to the PSR, the

district court may accept any undisputed portion of the presentence report as a

finding of fact.” United States v. Harris, 447 F.3d 1300, 1306 (10th Cir. 2006)

(quotation omitted). Thus, if a defendant fails to object to the facts stated in the

PSR, we “will deem him to have waived any dispute regarding the facts set forth

in the PSR.” United States v. West, 550 F.3d 952, 957 n.3 (10th Cir. 2008)

(emphasis added), overruled on other grounds as recognized in United States v.

                                         -12-
McConnell, 605 F.3d 822 (10th Cir. 2010); see also United States v. Wolfe, 435

F.3d 1289, 1299 (10th Cir. 2006).

        Accordingly, it is clear that “factual disputes regarding sentencing not

brought to the attention of the district court do not rise to the level of plain error.”

United States v. Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010), cert. denied, 130 S.

Ct. 3441 (2010). “While we have reviewed sentencing errors that were not raised

in the district court under a plain error standard, plain error review is not

appropriate when the alleged error involves the resolution of factual disputes.”

United States v. Smith, 531 F.3d 1261, 1270 (10th Cir. 2008) (quotation omitted).

We have recognized an exception to this rule only “when the appellant can

establish the certainty of a favorable finding on remand.” Lewis, 594 F.3d at

1288.

        The present case is paradigmatic of the logic behind this waiver rule. If

Vazquez-Villa had raised his sentencing objections below, the district court could

have heard evidence and made findings regarding the factual questions at issue.

Because he did not object, however, the government did not present evidence and

therefore we are faced with an insufficiently developed record that provides us no

basis to call into question the district court’s approach to sentencing. Further,

Vazquez-Villa has not come close to showing with certainty that he would benefit

from a favorable finding on remand. For these reasons, we find Vazquez-Villa’s




                                          -13-
procedural challenges raise factual questions unsusceptible to appellate review.

Plain error review is inappropriate and Vazquez-Villa’s argument is waived.

      Moreover, even if we were not to consider Vazquez-Villa’s arguments

waived, we would still conclude, under plain error analysis, that the district court

did not err in adopting the factual findings of the PSR. As explained, the record

on appeal is sparse and does nothing to call into question the PSR’s detailed

account of the drug quantity attributable to Vazquez-Villa. Likewise, nothing in

the record calls into question the PSR’s findings, which were supported by

intercepted conversations and witness testimony, that Vazquez-Villa was a leader

in a significant drug organization that imported methamphetamine from Mexico. 3

      For these reasons, Vazquez-Villa’s sentence is procedurally reasonable.

             2. Substantive Reasonableness

      Without offering any analysis, Vazquez-Villa contends his 25-year sentence

is substantively unreasonable because it “is more than what should have been


      3
         Despite conceding that “there may have been more than five participants
involved in [his] criminal activity,” Aplt. Br. at 26, Vazquez-Villa argues that he
should have been classified only as a “manager or supervisor,” which merits a
two-level enhancement under USSG § 3B1.1(c), rather than as an “organizer or
leader,” which merits a four-level enhancement under § 3B1.1(a). This is a
factually dependent claim, and because Vazquez-Villa did not object at
sentencing, the record is insufficiently developed to give us any basis to say that
the district court committed plain error on this point. We also have no reason to
question the district court’s finding that Vazquez-Villa imported
methamphetamine, such that he was subject to a two-level enhancement under
USSG § 2D1.1(b)(4)(A). Indeed, the court heard ample evidence that Vazquez-
Villa obtained methamphetamine from Mexico.

                                         -14-
calculated under the guideline range and is simply unreasonable.” Aplt. Br. at 28.

This contention is belied by the record, which shows Vazquez-Villa received a

sentence tailored to the facts of his crimes, based on a conscientious consideration

of the § 3553(a) factors.

      We review the substantive reasonableness of a defendant’s sentence for

abuse of discretion. See United States v. Mancera-Perez, 505 F.3d 1054, 1058

(10th Cir. 2007). Under this deferential standard, we may overturn Vazquez-

Villa’s sentence only if the district court’s decision was “arbitrary, capricious,

whimsical, or manifestly unreasonable.” United States v. Friedman, 554 F.3d

1301, 1307 (10th Cir. 2009) (quotation omitted). In this regard, we assess

whether Vazquez-Villa’s sentence is reasonable “given all the circumstances of

the case in light of the factors set forth in 18 U.S.C. § 3553(a).” Id. (quotation

omitted).

      A sentence within a properly calculated guidelines range is presumed to be

reasonable. United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008).

Vazquez-Villa’s sentence was outside the guideline range—but this worked to his

advantage. Indeed, even though the suggested sentence for a level-43 offense is

life imprisonment, the district court applied a significant downward variance and

sentenced Vazquez-Villa to only 25 years’ imprisonment. The court applied this

variance because it concluded the PSR failed to account for the appellant’s “lack

of criminal history, put[] undue weight on the quantity-driven Guideline

                                         -15-
calculations, and overstate[d] the seriousness of the offense due to the nature of

the investigation and due to the attenuated links with an independent drug

distribution operation.” R., Vol. VI at 989. This was not an abuse of discretion.

      We therefore affirm the sentence imposed by the district court.

                                  III. Conclusion

      For the reasons discussed above, we AFFIRM Vazquez-Villa’s conviction

and sentence.

                                       ENTERED FOR THE COURT

                                       Timothy M. Tymkovich
                                       Circuit Judge




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