                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 9, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-5089
          v.                                           (N.D. Oklahoma)
 PEDRO CANDELAS, a/k/a Victor                 (D.C. No. 4:09-CR-00053-CVE-4)
 Rueda, a/k/a Hector Martinez, a/k/a
 Jose Flores, a/k/a El Gallo,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, TACHA, and BRORBY, Circuit Judges.



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

therefore ordered submitted without oral argument.

      Defendant and appellant, Pedro Candelas, pled guilty to conspiracy to

possess heroin with intent to distribute, in violation of 21 U.S.C. § 846 and 21


      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 841(a)(1) and (b)(1)(B)(i). He was sentenced to ninety-seven months’

imprisonment, followed by sixty months of supervised release. Arguing that the

district court made various errors in calculating his sentence, Mr. Candelas

appeals that sentence, which we affirm.



                                  BACKGROUND

      Beginning approximately in December of 2008, the Tulsa Police

Department received information from a confidential informant (“CI”) that the CI

had purchased heroin from Mr. Candelas on four occasions. Mr. Candelas’s live-

in girlfriend, Sylvia Silva, acted as the translator for the transactions. 1 While

Mr. Candelas and Ms. Silva lived in New Mexico, in these transactions the heroin

was delivered to Tulsa via United Parcel Service and payment was made by

means of a Money-Gram.

      On January 9, 2009, Mr. Candelas agreed, through Ms. Silva, to sell the CI

one-half pound of heroin for $8,800. Rafael Zanabria and Felipe Gallardo-

Gallegos transported the heroin to Tulsa for Mr. Candelas. Mr. Candelas paid

them $800 for their services, and provided $340 to purchase gas for the trip and a

hotel room.




      1
       While Mr. Candelas could only speak Spanish, Ms. Silva was fluent in
both Spanish and English. The two also had a daughter together.

                                          -2-
      Accordingly, on January 15, 2009, Mr. Zanabria, his wife (Maria Perez)

and Mr. Gallegos transported the one-half pound of heroin from Los Lunas, New

Mexico, to Tulsa. Mr. Zanabria and Mr. Candelas stayed in contact with each

other via cell phone during the trip so that Mr. Candelas could monitor the

progress of the trip and give instructions to Mr. Zanabria.

      Once the trio arrived in Tulsa, Mr. Zanabria contacted the CI from the

parking lot of a Wal-Mart store and informed the CI that he was in a silver

Oldsmobile. The CI and an undercover police officer accordingly drove to the

Wal-Mart, as did a surveillance team of Tulsa police officers. When

Mr. Zanabria observed that police officers were present, he concluded that the

drug transaction was a set-up and attempted to leave the parking lot. Ultimately,

police officers stopped Mr. Zanabria, Mr. Gallegos and Ms. Perez as they drove

out of the parking lot. The Tulsa officers discovered a package of approximately

198.30 grams of heroin hidden in the front of Mr. Gallegos’s pants. Mr. Zanabria

and Mr. Gallegos were both arrested. As it turned out, Ms. Perez was unaware of

the planned drug transaction and was later released without being charged.

      On April 10, 2009, an initial indictment was filed charging Mr. Zanabria

and Mr. Gallegos with engaging in a conspiracy to possess with intent to

distribute 100 grams or more of heroin, beginning in mid-November 2008 and

continuing until January 15, 2009. On June 2, 2009, a superceding indictment

was filed adding Ms. Silva to that same heroin conspiracy. On June 8, 2009, both

                                         -3-
Mr. Gallegos and Mr. Zanabria pled guilty to the conspiracy count. Mr. Gallegos

was sentenced to time served and was released to Immigration and Customs

Enforcement for deportation proceedings. Mr. Zanabria was sentenced to thirty-

three months’ imprisonment.

      While Mr. Candelas had not yet been indicted on felony heroin conspiracy

charges, he was sentenced on August 6, 2009, in New Mexico to nine years’

imprisonment, eight of them suspended, based upon an arrest on state heroin-

related charges in January 2007, for which he had failed to appear for sentencing.

Meanwhile, on October 7, 2009, Ms. Silva pled guilty to the superceding

indictment alleging the same criminal conspiracy as the one to which

Mr. Gallegos and Mr. Zanabria had pled guilty. She ultimately was not sentenced

to any prison time. On December 7, 2009, Mr. Candelas was finally named in a

sealed one-count second superseding indictment, also charging that from mid-

November 2008 until January 15, 2009, he conspired with Ms. Silva,

Mr. Zanabria, Mr. Gallegos and others to possess with intent to distribute heroin,

in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B)(i). He was still serving

his sentence in New Mexico state prison when he was indicted on the federal

charge.

      On January 12, 2010, Mr. Candelas was released from incarceration in New

Mexico and was promptly arrested on the federal heroin conspiracy charge. He

pled guilty on April 8, 2010.

                                         -4-
      The sentences of Ms. Silva, Mr. Zanabria and Mr. Gallegos are not at issue

in this appeal; only Mr. Candelas challenges his sentence, although he argues that

the sentences of his co-defendants are relevant to certain of Mr. Candelas’s

arguments.

      In preparation for sentencing Mr. Candelas under the advisory United

States Guideline Commission, Guidelines Manual (2009) (“USSG”), the United

States Probation office prepared a presentence report (“PSR”). 2 The PSR

concluded that Mr. Candelas’s initial offense level was 26, and then added a 4-

point upward adjustment pursuant to USSG §3B1.1(a) because he was “the leader

or organizer of a heroin distribution conspiracy which involved the knowing

participation of at least five participants,” and a 2-point increase because

Mr. Candelas “attempted to obstruct the administration of justice with respect to

the investigation of the instant offense by attempting to threaten, intimidate or

unlawfully influence a co-defendant.” PSR ¶¶ 19, 20, R. Vol. 2 at 216. 3 After a



      2
       The Probation Office obviously prepared a PSR in preparation for the
sentencing of each of Mr. Candelas’s co-conspirators, but, as indicated above,
they are not relevant to this appeal.
      3
        This latter adjustment for obstruction of justice is based upon the finding
in the PSR that, prior to being indicted and arrested on the instant offense,
Mr. Candelas “contacted Silva’s mother to relate a message to Silva that she was
to keep quiet or her daughter would be in danger. Additionally, Candelas sent
Danny Calleja, a criminal participant within Candelas’ heroin distribution
organization, to find Silva. The aforementioned conduct was an indirect attempt
to affect the outcome of the instant offense by threatening, intimidating, or
otherwise unlawfully influencing a co-defendant.” PSR ¶ 14, R. Vol. II at 215.

                                         -5-
3-point reduction for acceptance of responsibility, Mr. Candelas’s total adjusted

offense level was 29 which, when combined with a criminal history category of

II, yielded an advisory sentencing guidelines range of 97 to 121 months.

      Mr. Candelas filed a sentencing memorandum, objections to the PSR, and a

motion for a downward departure or variance. In his sentencing memorandum,

Mr. Candelas argued he should be given credit for his time served in state prison,

arguing that had he been indicted immediately after the arrest of Mr. Zanabria and

Mr. Gallegos, “he could have pleaded guilty early on, and would have been

eligible for a concurrent sentence with the undischarged New Mexico state

sentence.” Def.’s Sentencing Mem. at 2, R. Vol. 1 at 23. He also argued that he

was not a leader or organizer and that the district court failed to sentence him

with a view to avoiding sentencing disparities between him and his co-

conspirators.

      Mr. Candelas’s objections to the PSR reiterated his arguments about not

being a leader or organizer and failing to be given credit for time served in New

Mexico. Finally, his motion for a downward departure or variance relied upon the

identical arguments.

      The district court rejected Mr. Candelas’s argument that he was not a leader

or organizer, and also agreed with the PSR that he had obstructed justice by

threatening Ms. Silva. It further rejected his arguments regarding receiving credit

or a downward departure or variance based on his previously discharged state

                                         -6-
sentence and his argument that his sentence reflected unwarranted sentencing

disparities. Mr. Candelas was accordingly sentenced to ninety-seven months’

imprisonment, at the bottom of the advisory Guideline sentencing range. This

appeal from his sentence followed.



                                  DISCUSSION

      Mr. Candelas argues that the district court erred in: (1) finding he was the

leader or organizer of the heroin conspiracy; (2) finding that he obstructed justice;

(3) refusing to consider giving him credit for the time he served in New Mexico;

and (4) failing to consider “unwarranted sentencing disparities” when it sentenced

him. Appellant’s Op. Br. at 5.

      “We review [Mr. Candelas’s] sentence for reasonableness, giving deference

to the district court order under the familiar abuse-of-discretion standard.”

United States v. Hamilton, 587 F.3d 1199, 1219 (10 th Cir. 2009) (internal

quotation marks omitted). While his brief is less than pellucid, it appears he does

not challenge the substantive reasonableness of his sentence. That is, he makes

no argument that the length of his sentence, ninety-seven months, is unreasonable

in light of the factors enumerated in 18 U.S.C. § 3553(a). Rather, Mr. Candelas

challenges on four specific grounds the procedure by which the court arrived at

his sentence. In such a situation, our review is limited to determining “whether

the district court improperly calculated the Guidelines range.” Hamilton, 587

                                         -7-
F.3d at 1219 (internal quotation marks and brackets omitted). “In evaluating the

application of a Guidelines enhancement, we review factual findings for clear

error, but to the extent the defendant asks us to interpret the Guidelines or hold

that the facts found by the district court are insufficient as a matter of law to

warrant an enhancement, we must conduct a de novo review.” Id. at 1222.

      I. Leader or Organizer:

      An enhancement under USSG §3B1.1(a) is warranted only if (1) the

defendant was an “organizer or leader” of the criminal activity, and (2) the

criminal activity involved at least five participants or was otherwise extensive.

With respect to the first part of the enhancement, it is sufficient if the evidence

reveals that the defendant supervised at least one other participant. Id. comment.

(n.2); see also United States v. Cruz Camacho, 137 F.3d 1220, 1224 (10 th Cir.

1998). “This is not a particularly onerous showing,” and need not be proven with

specific examples. Hamilton, 587 F.3d at 1222.

      In this case, the court did, however, provide specific examples, including

that “the defendant recruited and directed couriers, directed others in their duties,

and arranged the drug transactions, to include setting the price of the heroin and

payment of the couriers.” Tr. of Sentencing Hr’g at 53, R. Vol. 3 at 59. And the

court specifically rejected Mr. Candelas’s main argument, repeated here on

appeal, that Ms. Silva was the true leader or organizer, finding that she merely




                                           -8-
“operated within the conspiracy as the defendant’s interpreter thereby enabling

the defendant to arrange drug transactions with non-Spanish speakers.” Id.

      The court also rejected Mr. Candelas’s argument that the conspiracy did not

involve five participants, stating as follows:

             The Court finds by a preponderance of the evidence, both from
      the exhibits attached to the response to the objections, the exhibits
      received today here in open court, and the testimony of Sylvia Silva,
      as well as what the Court knows from the allocutions of Mr. Rafael
      Zanabria and Felipe Gallegos, that the defendant was the organizer
      and leader of a criminal activity that involved more than five
      participants, to include Pedro Candelas, Sylvia Silva, Rafael
      Zanabria, Felipe Gallardo-Gallegos, Danny Calleja, and others.

Id. These findings were not clearly erroneous. Accordingly, we affirm the

district court’s enhancement based on Mr. Candelas being the leader or organizer

of a conspiracy involving at least five participants.

      II. Obstruction of Justice:

      The Guidelines regarding obstruction of justice provide as follows:

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the
      defendant’s offense of conviction and any relevant conduct; or (ii) a
      closely related offense, increase the offense level by 2 levels.

USSG §3C1.1. Once again, the district court specifically made findings on this

enhancement:

             Specifically, the defendant contacted Silva’s mother and
      threatened to harm Silva or her children if she talked to the police.
      Further, the defendant sent Danny Calleja, a criminal participant

                                          -9-
      within the defendant’s heroin distribution organization, to find Silva.
      The defendant’s objection to the obstruction of justice is overruled.

We discern no error in this finding either, which was amply supported by the

record and Ms. Silva’s testimony.

      III. Failure to Give Credit for Time Served in State Prison:

      Mr. Candelas next argues that the government deliberately waited until

almost a year following the arrests of his co-conspirators, and some six to eight

months after his co-conspirators were indicted, to indict him on the same

conspiracy charge. He further avers that the government knew that, during that

time period, he was serving a sentence in New Mexico state prison on similar

state heroin-related charges, and that prosecutors deliberately delayed his

indictment so that he would not be afforded the chance to serve his federal

sentence concurrently with his state sentence. This argument is meritless.

      In support of his argument, Mr. Candelas relies upon a recent decision of

our court, United States v. Fay, 547 F.3d 1231 (10 th Cir. 2008), in which we

observed as follows:

             The sentencing Reform Act of 1984, 18 U.S.C. § 3551 et. seq.,
      28 U.S.C. §§ 991-98, contains a series of provisions governing
      various aspects of sentencing. Among those provisions is 18 U.S.C.
      § 3584(a), which provides that, “if a term of imprisonment is
      imposed on a defendant who is already subject to an undischarged
      term of imprisonment, the terms may run concurrently or
      consecutively[.]” The district court in the present case concluded that
      the statute’s use of the modifier “undischarged” signaled that
      Congress did not intend to allow a district court to direct that a new


                                        -10-
      prison term run concurrently with a completed, or discharged, prison
      term.

Id. at 1235. This provision does not mandate that sentences run concurrently,

even if one is undischarged; it simply says they may do so. Furthermore, it is

indisputable that Mr. Candelas’s state sentence was discharged by the time he was

sentenced to his current sentence. Finally, as the district court noted, “[t]he

conduct relevant to the state conviction is considered prior criminal history, not

relevant conduct, and therefore [is] not appropriate for a sentence offset under”

the Guidelines. Tr. of Sentencing Hr’g at 62, R. Vol. 3 at 68.

      IV. Sentencing Disparities:

      Finally, Mr. Candelas makes a very brief argument that the district court

erred in rejecting his request in his sentencing memorandum to consider

sentencing disparities between himself and his co-conspirators. He points out that

Ms. Silva received no prison time; Mr. Gallegos was sentenced to time served;

and Mr. Zanabria was sentenced to thirty-three months. By contrast, he received

a ninety-seven month sentence. The district court specifically addressed and

rejected this argument, stating that “the Court finds that sentencing disparities

between defendants was created by cooperation agreements with the government

and substantial assistance reductions for which the defendant should not receive

an equal benefit because he did not provide substantial assistance.” Id. There is

nothing erroneous about that determination.


                                         -11-
                         CONCLUSION

For the foregoing reasons, the sentence is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




                               -12-
