                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 28, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-3010
                                                  (D.C. No. 2:14-CR-20096-JAR-7)
OMAR FRANCISCO                                                (D. Kan.)
ORDUNO-RAMIREZ,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Defendant Omar Francisco Orduno-Ramirez pleaded guilty without a plea

agreement to one count of conspiracy to distribute more than 50 grams of

methamphetamine. He appeals his sentence, arguing the district court erred in

denying his request for a mitigating-role sentence reduction. Because the district

court properly applied the Sentencing Guidelines, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument. This order and judgment is not binding precedent,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.
      I. Background.

      Defendant was a participant in a drug-trafficking operation that transported

and distributed methamphetamine from Arizona to Kansas City, Kansas. Defendant

asserted at sentencing that he was a minor participant in the illegal drug operation

and requested a two-level downward adjustment to his sentence. See U.S. Sentencing

Guidelines Manual (USSG) § 3B1.2(b) (U.S. Sentencing Comm’n 2016). The

district court denied this request, ruling he was not a minor participant. On appeal,

Defendant argues the district court erroneously compared his role to typical minor

role participants, and not co-participants in the actual offense, as required by the

commentary to § 3B1.2. The following information regarding Defendant’s role in the

criminal activity is taken from Defendant’s change of plea hearing and testimony

from an FBI agent at Defendant’s sentencing hearing.

      Vicencio Olea-Monarez was the head organizer responsible for distributing the

methamphetamine in Kansas City and elsewhere. Olea-Monarez obtained the

methamphetamine from Gabriel Agustin Lopez, who lived in Phoenix, Arizona.

Lopez obtained his methamphetamine from his boss, Javier, who also lived in

Phoenix, as well as a Mexican supplier. Olea-Monarez hired Defendant and Hector

Valdez to transport the drugs and the cash drug-sale proceeds between Phoenix and

Kansas City. Defendant was the primary courier for a time. Olea-Monarez also hired

some people to outfit the vehicles used to transport the drugs and cash, to unload the

drugs, and to sell the drugs.



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      Defendant was stopped for a traffic violation in July 2014, during which the

police found drug proceeds stashed in a secret compartment of the car. Defendant

then selected and recommended to Olea-Monarez a new driver, named Ruben, to take

over as the operation’s drug and cash courier. Defendant provided Ruben with the

necessary information to transport the drugs and cash to and from Kansas City.

      Defendant, Olea-Monarez, and Lopez also participated in two marijuana

growing and distributing operations in Kansas and Arkansas. Olea-Monarez agreed

to give Lopez half of his marijuana sale proceeds. Defendant drove illegal aliens,

who had been smuggled into Arizona from Mexico, to work as slave laborers at the

marijuana fields. Defendant drove the illegal aliens from Arizona to Kansas and

brought them food and water at the grow site. He also transported the marijuana

seeds from Mexico, obtained fertilizer for the marijuana grow operation from his

wife’s flower shop in Phoenix, and provided supplies to the Kansas and Arkansas

marijuana grow operations. The FBI agent testified at the sentencing that it appeared

that Defendant had knowledge of the methods and trade craft used to cross illegal

aliens from Mexico into the United States.

      Defendant frequently spoke with Olea-Monarez. They discussed topics related

to smuggling the illegal aliens; obtaining the marijuana fertilizer; concerns that

courier Valdez was being surveilled by police; the arrangements for Defendant to

drop off a vehicle at Javier’s Phoenix residence; and hiring Ruben as the new drug

courier. Evidence also showed that Defendant had some interaction with Lopez and

Lopez’s boss, Javier, all of whom lived in Phoenix. Defendant interviewed with

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Lopez, explaining he had been a courier for Olea-Monarez on four prior occasions.

Defendant took a car to Lopez to show him how it could be outfitted to transport the

drugs and cash. Lopez asked Defendant to rent a car and determine if it could be

outfitted as a courier car. On one occasion, Lopez gave Defendant $500 because he

was out of money. Defendant drove a vehicle containing cash drug-proceeds from

his Phoenix home and left it at Javier’s Phoenix residence. Javier gave Defendant the

marijuana seeds to transport to Kansas and gave him the money to buy the fertilizer.

Lopez and Javier met Defendant once at his Phoenix residence. Defendant took

Ruben to Lopez to be interviewed by Javier as the new courier.

      Sentencing. Defendant was sentenced in January 2017. The Presentence

Report (PSR) calculated Defendant’s total offense level as 36. Defendant had no

criminal history, and the PSR recommended a sentencing range of 188 to 235

months’ imprisonment. Defendant sought a two-level reduction under USSG

§ 3B1.2(b), arguing he was only a minor participant in the drug operation. He argued

he was merely a minimally-paid courier, with no involvement in the actual

distribution of drugs other than getting it from Phoenix to Kansas City. The

government opposed this reduction, pointing to the evidence that Defendant

repeatedly transported both drugs and drug proceeds for the organization, recruited a

new courier after he was arrested, and was instrumental in the marijuana operation by

providing seeds, fertilizer, and illegal aliens as workers. The government also

referred to the evidence that Defendant worked with the heads of the drug operation,

noting he had extensive communications with Olea-Monarez and had at least some

                                          4
interaction and face-to-face meetings with Lopez and Javier. The district court

denied Defendant’s request for a minor-role adjustment under § 3B1.2(b), and

sentenced him to 144 months’ imprisonment.

      II. Discussion.

      Sentencing Guideline Section 3B1.2(b) provides a two-level reduction to a

defendant’s offense level if he was a minor participant. A “minor participant” is one

“who is less culpable than most other participants in the criminal activity, but whose

role could not be described as minimal.” USSG § 3B1.2, cmt. n.5. The defendant

bears the burden of proving a mitigating role in the offense by a preponderance of the

evidence. United States v. Salas, 756 F.3d 1196, 1207 (10th Cir. 2014). Whether to

grant a reduction in the offense level based on a defendant’s participation in the

offense “involves a determination that is heavily dependent upon the facts of the

particular case.” USSG § 3B1.2 cmt. n.3(C). In reviewing a district court’s

application of the Sentencing Guidelines, we review legal questions, including the

interpretation of a particular guideline, de novo and review any factual

determinations for clear error. United States v. Craig, 808 F.3d 1249, 1255

(10th Cir. 2015). Defendant offers no argument or reason why any of the district

court’s findings are clearly erroneous.

      Prior to 2015, the Guidelines did not specify, and the circuit courts took

different approaches, as to whether a defendant’s role in the criminal activity was to

be compared with that of the other participants in the specific criminal activity or

with a typical offender committing the same type of offense. See United States v.

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Caruth, 930 F.2d 811, 815 (10th Cir. 1991) (holding that both comparisons were

relevant). In 2015, the Sentencing Commission issued Amendment 794 to resolve

the circuit split. It amended the commentary to § 3B1.2 to take the position that, in

deciding whether a defendant played a minimal or minor role, “the defendant is to be

compared with the other participants in the criminal activity.” See USSG, app. C

sup., amend. 794 (Nov. 1, 2015). Amendment 794 also added to § 3B1.2’s

commentary the following non-exhaustive list of factors that the district court

“should consider” among the “totality of the circumstances”:

      (i) the degree to which the defendant understood the scope and structure of
      the criminal activity;
      (ii) the degree to which the defendant participated in planning or organizing
      the criminal activity;
      (iii) the degree to which the defendant exercised decision-making authority
      or influenced the exercise of decision-making authority;
      (iv) the nature and extent of the defendant’s participation in the commission
      of the criminal activity, including the acts the defendant performed and the
      responsibility and discretion the defendant had in performing those acts;
      (v) the degree to which the defendant stood to benefit from the criminal
      activity.
Id.; USSG § 3B1.2, cmt. 3(C).

      On appeal, Defendant argues the district court did not follow Amendment 794,

but erroneously compared him to typical minor role participants, not co-participants

in the actual offense. We disagree. The record clearly demonstrates that the district

court correctly applied Amendment 794.

      The district court recognized its responsibility to assess Defendant’s role in the

operation relevant to the other participants in this drug operation. It described
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Defendant’s role in the operations at length, describing in particular where his role

was in the overall hierarchy, the nature and scope of his involvement, whether he was

someone who organized, supervised, led or managed aspects of the operations, and

whether his role was greater or less than the average participant. It made detailed

findings as to the role of all the various categories of participants in the criminal

activity. It found that Olea-Monarez headed up the operation in terms of selling the

methamphetamine, and that his suppliers, Lopez and Javier, were his bosses. The

district court also found there were categories of persons less involved in the

operation, namely, those to whom Olea-Monarez distributed the drugs and who, in

turn, sold the drugs to customers, but who had no other involvement in the operation,

as well as those who were hired by for Olea-Monarez to work on the vehicles and

who arranged some drug sales.

      The district court concluded Defendant’s role was less than that of

Olea-Monarez, Lopez, or Javier, but had substantially more involvement in the

operation than those hired by Olea-Monarez and the illegal workers, particularly

because he had direct contact with those above Olea-Monarez, namely Lopez and

Javier. The district court found that Defendant was integral to the transportation

aspects of the drug operation, driving drugs and delivering drug proceeds to and from

Kansas City; was not walled off from contact with the top members of the

organization, but had significant direct contact with Olea-Monarez, and discussed

operational details with him; was involved in the transportation and care of the

smuggled illegal aliens; was responsible for selecting Ruben as the new courier; and

                                            7
supported the marijuana operation by delivering workers, seed, and supplies, playing

a key role in providing the fertilizer from his wife’s flower shop. Based on these

findings, the district court ruled Defendant was not entitled to a sentence reduction as

a minor participant.

       The district court made only one brief reference to typical couriers in drug

conspiracies, stating that in many drug conspiracies, drug couriers are totally walled

off from contact with the top members of the organization, and never meet or talk

with the top organizers and typically do not even know their names, but are simply

paid a small amount of money to drive back and forth. The district court did contrast

this typical conduct with that of Defendant, who had had significant direct contact

with Olea-Monarez and met with Lopez and Javier. But this brief reference to typical

couriers does not indicate that the district court relied in any significant way on a

comparison with typical couriers. To the contrary, the primary focus of the district

court’s entire discussion and analysis was a detailed comparison of Defendant’s role

with that of the other participants in this criminal activity. The district court

discussed the relative culpability of the other participants in this criminal activity in

relation to the Defendant’s role.

       Further, the district court discussed the relevant factors listed in Amendment

794. In particular, it noted the evidence that Defendant understood the scope and

structure of the criminal activity, participated to varying degrees with Olea-Monarez

and Lopez in planning the criminal activities, and influenced the exercise of

decision-making authority by selecting the new courier. Defendant argues he was a

                                            8
mere courier, but that role does not necessarily entitle him to a minor role

adjustment. See United States v. Martinez, 512 F.3d 1268, 1276 (10th Cir. 2008)

(“[W]e have consistently refused to adopt a per se rule allowing a downward

adjustment based solely on a defendant’s status as a drug courier.” (internal quotation

marks omitted)). But the district court found that Defendant’s role was more than

that of a mere courier. He contributed to the drug operations by recruiting a new

courier, and he aided and managed that courier, participated in the marijuana

operations by providing seeds, fertilizer, and illegal alien workers, and enjoyed the

trust of, and interacted with, the top drug organizers. The court’s factual findings as

to Defendant’s role and participation in the criminal activity are not clearly

erroneous, and it did not err in its application of § 3B1.2 when it determined

Defendant was not entitled to the minor participant sentence reduction.

      Affirmed.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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