                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                  UNITED STATES COURT OF APPEALS                      June 12, 2008
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-1163
          v.                                            (D. Colorado)
 BENITO GARCIA,                                (D.C. No. 05-cr-00404-REB-5)

               Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BALDOCK, and BRISCOE, 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 F ED . R. A P P . P. 34(a)(2); 10 TH C IR . R.

34.1(G). The case is therefore ordered submitted without oral argument.

      Benito Garcia appeals the district court’s sentence imposed for his

jury conviction for a drug conspiracy conviction. He argues that the district

court did not make particularized findings as to (1) the scope of the criminal


      *
       This order and judgment is not binding precedent except under the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.
activity he agreed to undertake regarding the conspiracy, and (2) the total

amount of drugs involved that were foreseeable to him. Reviewing for plain

error, we affirm Mr. Garcia’s sentence.

                              I. BACKGROUND

      Mr. Garcia became the focus of a Boulder County (Colorado) Drug

Task Force investigation that initially centered on Donald Jason Skinner in

May 2004. Mr. Skinner was identified as the leader of a drug distribution

organization (hereinafter “SDO”), and the purpose of the investigation,

which involved fifteen to twenty local law enforcement officers and

eventually a number of DEA agents, was to observe Mr. Skinner in order to

identify his associates and the source of the drugs.

      In the course of the investigation, the officers obtained Mr. Skinner’s

cell phone records and conducted extensive surveillance of the SDO through

various methods, including the use of global positioning tracking devices

installed on Skinner’s vehicles. An undercover detective, Janet Aguirre,

was eventually able to make seven controlled purchases of drugs from the

SDO between May 10 and July 19, 2005. In addition, two bags containing

methamphetamine were found hidden under the hood of one of Mr. Skinner’s

cars on May 24, 2005. On September 7, 2005, the investigators executed an

arrest warrant for Mr. Skinner and search warrants for locations used by the

SDO for drug distribution activities.

                                        -2-
       Mr. Skinner decided to cooperate with the investigation and supplied

information about the source of his drugs, his associates in the SDO. He

also initiated monitored contacts with other SDO participants and suppliers.

Mr. Skinner identified Mr. Garcia as a delivery person for the drugs

supplied by Santiago Mena-Flores, nicknamed “Chago.” Mr. Skinner stated

he met with Mr. Garcia at least fifty times. Other witnesses also described

Mr. Garcia as a delivery person for “Chago.” A jury convicted Mr. Garcia

of conspiracy to possess with the intent to distribute more than fifty grams

of methamphetamine (actual); more than 500 grams of a mixture and

substance containing a detectable amount of methamphetamine, a quantity

of a mixture and substance containing a detectable amount of cocaine and a

quantity of a mixture and substance containing a detectable amount of

marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), (b)(1)(C)

and (b)(1)(D); and 18 U.S.C. § 2.

      The government filed a sentencing statement claiming that the

conspiracy involved the distribution of more than 15 kilograms of

methamphetamine, establishing a starting base offense level of 38 as

provided by U.S.S.G. § 2D1.1(c)(1). The defendant’s sentencing statement

urged that a better view of the evidence established a drug quantity at 12

kilograms, based on the total quantity estimated by the government in plea

agreements with Mr. Garcia’s codefendants. Mr. Garcia also pointed out that

                                       -3-
no independent evidence supported the trial testimony quantity estimates of

his coconspirators that the total quantity of methamphetamine exceeded 15

kilograms over the course of the conspiracy. According to Mr. Garcia, the

resulting base offense level would be 36 pursuant to U.S.S.G. § 2D1.1(c)(2).

      In the presentence report (PSR), the probation officer urged the

adoption of the government’s position. Mr. Garcia filed three objections to

the PSR, arguing that (1) for the reasons proffered in his sentencing

statement, the base offense level should be 36, not 38; (2) he should receive a

mitigating role adjustment under U.S.S.G. § 3B1.2; and (3) he should receive

a safety-valve reduction under U.S.S.G. § 5C1.2.

      The parties agreed that Mr. Garcia’s mitigating role in the offense

justified a two-level downward adjustment pursuant to U.S.S.G. § 3B1.2.

The parties and the probation officer also agreed that Mr. Garcia qualified

for “safety valve” relief pursuant to U.S.S.G. § 5C1.2. These provisions

triggered additional decreases under U.S.S.G. § 2D1.1(a)(3) and (b)(11) to

the offense level. The application of these decreases resulted in a total

offense level of 30 under the government’s version and 29 under the

defendant’s version. The resulting imprisonment ranges were 97 to 121

months’ imprisonment under the government’s position or 87 to 108 months’

imprisonment under Mr. Garcia’s analysis.

      The district court resolved this dispute at the sentencing hearing in

                                       -4-
favor of the government’s position. The court then imposed an imprisonment

term of 97 months.

                                II. DISCUSSION

      Mr. Garcia challenges the district court’s lack of particularized

findings as to the scope of the conspiracy and as to the amount of the

contraband underlying the imposition of a 97-month sentence. Mr. Garcia

maintains that the trial evidence did not establish when he joined the

conspiracy, how often he made deliveries, or the quantities involved in each

delivery. Because the district court made no findings as to the extent and

scope of his role in the conspiracy, or as to the total amount of drugs

involved that were foreseeable to him, he argues that his sentence is

unreasonable.

      A. Standard of Review

      Our appellate review of Mr. Garcia’s sentence “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.” United States v. Smart, 518 F.3d 800, 803 (10th Cir.

2008). Here, Mr. Garcia “challenges only the procedural reasonableness of

his sentence, which requires, among other things, a properly calculated

Guidelines range.” United States v. Saavedra, 523 F.3d 1287, 1289 (10th

Cir. 2008). See United States v. Ellis, 525 F.3d 960, 964 (10th Cir. 2008)

                                        -5-
(“A sentence is procedurally unreasonable if the court failed to calculate (or

improperly calculated) the Guidelines range, treated the Guidelines as

mandatory, failed to consider the § 3553(a) factors, selected a sentence based

on clearly erroneous facts, or failed to adequately explain the chosen

sentence.”) (internal alterations and quotations omitted). In determining

whether the district court correctly calculated the recommended Guidelines

range through application of the Guidelines, we review de novo the district

court’s legal conclusions and any factual findings for clear error, giving due

deference to the district court's application of the Guidelines to the facts.

United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).

      Mr. Garcia argues that because he sought a lower sentence before the

district court, he preserved his objection to the calculus used by the district

court, and therefore, we review for harmless error. The government

acknowledges that Mr. Garcia asked the district court to hold him

accountable for only 12 kilograms of contraband, rather than 15 kilograms.

In so doing, Mr. Garcia pointed to the testimony of certain co-conspirators

who pleaded guilty and whose relevant offense conduct was established by

the plea agreement at 12 kilograms. The district court rejected this request

and adopted the PSR’s recommendation that the offense involved the

distribution of more than 15 kilograms of methamphetamine. Mr. Garcia

lodged no further objection to the district court’s calculations.

                                        -6-
      As the government observes:

      [Mr. Garcia] did not assert below the argument that he now asserts
      to this Court: that, in calculating the advisory guideline range, the
      district court failed to adequately explain its determination of
      Defendant’s relevant offense conduct by making “detailed and
      particularized findings” about the scope of [Mr. Garcia]’s
      agreement with the other conspirators and the foreseeability of the
      “magnitude of the criminal activity of the others.” Aplt. Brf. at 6,
      7-8. [Mr. Garcia] therefore failed to raise, and thereby preserve for
      review, the claim that he now brings before this Court for the first
      time, and this Court may notice [Mr. Garcia]’s new claim, if at all,
      only under the stringent plain error standard.

Aple’s Br. at 16. “Under the plain error standard, [this court] will not review

the district court’s factual findings relating to sentencing, but will review for

particularly egregious or obvious and substantial legal error . . . .” United

States v. Heredia-Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003) (quoting

United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir. 1994)); see F ED . R.

C RIM . P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”)

      B. Analysis

      We hold that Mr. Garcia cannot demonstrate that the district court’s

sentencing methodology rises to the level of an error that was “particularly

egregious” or “obvious and substantial.” Heredia-Cruz, 328 F.3d at 1288

(internal quotation marks omitted). Furthermore, to the extent Mr. Garcia

argues that the district court clearly erred in its determination of drug

quantity because it relied on either the testimony of co-conspirators or

                                        -7-
because the government did not corroborate the estimates his co-conspirators

provided, there is ample evidence in the record to support the reasonableness

of the district court’s sentence and sentencing procedure. Mr. Garcia

concedes that he was responsible for the distribution of 12 kilograms of

methamphetamine. As the government points out, Mr. Garcia was a runner

for Chago and met with Mr. Skinner more than fifty times to deliver drugs

and collect payment for previously delivered drugs. Mr. Skinner paid Chago

thousands of dollars for the previously delivered methamphetamine and

cocaine. He was involved in frequent and ongoing delivery of large

quantities of drugs for the SDO. Because the district court found the

testimony of the testifying co-conspirators to be credible, and thus it

committed no error when it found Mr. Garcia responsible for 15 kilograms of

methamphetamine.

                              III. CONCLUSION

      Accordingly, because the district court’s failure to make particularized

findings did not amount to plain error in this case, we AFFIRM Mr. Garcia’s

sentence.



                                             Entered for the Court,


                                             Robert H. Henry
                                             Chief Circuit Judge

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