                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 13, 2007
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                            __________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 06-1414
 v.                                           (D.Ct. No. 05-cr-00374-EW N-10)
                                                          (D . Colo.)
 ADAM LUCERO, a/k/a “Gadam,”

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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 Adam Lucero pled guilty to one count of conspiracy to distribute



      *
         This order and judgment is not binding precedent except under the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 possess with intent to distribute cocaine, a Schedule II controlled substance,

in violation of 21 U.S.C. §§ 841(a)(1) and 846. 1 He now appeals his 110-month

sentence on grounds the district court erred in determining he was not a minor

participant in the drug trafficking activity and failing to hold an evidentiary

hearing to determine the quantity of drugs attributable to him. W e exercise

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm M r.

Lucero’s sentence. 2



                               I. Factual Background

      Based on an investigation concerning several individuals involved in drug

trafficking, authorities obtained evidence establishing M r. Lucero conspired to

purchase quantities of cocaine or crack cocaine from both Victor Valdez and

Christopher G arduno for resale to customers. As later stipulated to by M r.

Lucero, one transaction involved one-half ounce of crack cocaine 3 delivered to


      1
         The indictment brought forty drug trafficking and related charges against
tw enty-three defendants; count one implicated M r. Lucero.
      2
         This appeal is related to another appeal before this court, United States v.
Trujillo, No. 06-1501, in which M anuel Trujillo was also indicted regarding the
same drug trafficking investigation. However, our dispositions on each case are
written separately given the facts and sentencing issues involved are
comparatively distinct.
      3
        One ounce is 28.35 grams, resulting in one-quarter ounce being the
equivalent of approximately 7.09 grams and one-half ounce the equivalent of
approximately 14.18 grams. See United States Sentencing Guidelines
                                                                   (continued...)

                                         -2-
him from M r. Valdez on July 6, 2005. Specifically, M r. Lucero stipulated that

during his telephone conversation with M r. Valdez on July 6, 2005, M r. Valdez

advised he w as “cooking” or manufacturing crack cocaine for delivery to M r.

Lucero later that day, and that evening at 9:30 M r. “Valdez delivered the half-

ounce of crack” to him. R., Supp. Vol. 3 (Plea A greement at 5 (¶ 14)). M r.

Lucero also stipulated M r. Garduno delivered to him one-quarter ounce of crack

on August 4, 2005, one-quarter ounce of crack on August 8, 2005, and one-half

ounce of crack on August 15, 2005. 4



                            II. Procedural Background

      Following his arrest, the final superseding indictment charged M r. Lucero

with conspiracy to possess with intent to distribute and to distribute five

kilograms or more of cocaine and fifty grams or more of “crack cocaine,” in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii), and (b)(1)(A)(iii), and § 846. In

his plea agreement, M r. Lucero agreed to plead guilty to one count of conspiracy

to distribute and possess with intent to distribute cocaine, a Schedule II controlled



      3
       (...continued)
(“G uidelines” or “U .S.S.G.”) § 2D1.1 (M easurement Conversion Table).
      4
        As a result, the drug quantity amount stipulated to by M r. Lucero, and
confirmed by authorities during the investigation, totaled at least forty-two and
one-half grams of cocaine base, also known as crack cocaine, purchased by M r.
Lucero from M r. V aldez and M r. G arduno.


                                         -3-
substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846, but stipulated his plea

did not include an admission he was involved in obtaining the drug quantities

contained in the indictment. Instead, M r. Lucero noted he was pleading to the

lesser included conspiracy offense of five grams or more of cocaine base as set

forth in 21 U.S.C. § 841(b)(1)(B)(iii). For the purpose of relevant conduct under

U.S.S.G. § 1B1.3(a)(1)(B), he stipulated the total drug quantity for which he was

accountable was between thirty-five and fifty gram s of cocaine base, which, under

the Guidelines, supports a base offense level of 30. U.S.S.G. § 2D1.1(c)(5) (Drug

Quantity Table). He also stipulated he purchased crack cocaine for redistribution

to others.



      During the change of plea hearing, M r. Lucero again admitted he purchased

crack cocaine for redistribution to others. A discussion ensued concerning the

types and quantities of drugs M r. Lucero purchased. During that discussion, and

despite his stipulation otherw ise, M r. Lucero informed the court that with regard

to his purchase from M r. Valdez the government was mislabeling it as crack when

it was in fact powder cocaine. Following the district court’s questioning on this

subject, M r. Lucero ultimately stated, “I take accountability, Your Honor, for 35

grams or more of crack, between 35 and 50. But I never purchased more than 50

grams, Your Honor.” R., Supp. Vol. 2 at 61-62. At the conclusion of the hearing,

M r. Lucero did not withdraw his stipulation he was accountable for thirty-five to

                                         -4-
fifty grams of crack cocaine and acknowledged he still w ished to plead guilty.



      Following the district court’s acceptance of M r. Lucero’s guilty plea, a

probation officer prepared a presentence report and arrived at a base offense level

of 30, based on thirty-five to fifty grams of crack cocaine attributed to M r. Lucero

as a result of his stipulation to that amount. The probation officer recommended

a three-level reduction for acceptance of responsibility, but recommended against

M r. Lucero’s request for a two-level reduction for being a minor participant,

explaining M r. Lucero operated as an independent distributor of cocaine and the

fact this did not make him substantially less culpable than the other participants.

W ith a total offense level of 27 and a criminal history category of VI, the

resulting advisory Guidelines range calculation totaled 130 to 162 months

imprisonment.



      Thereafter, M r. Lucero filed a motion for a reduction of sentence,

requesting a two-level offense reduction based on his claim he was a minor

participant in the drug trafficking organization under U .S.S.G. § 3B1.2. In

making his argument, M r. Lucero summarily claimed that “in comparison to the

other co-defendants, [he] was a minor participant because he was less culpable

and less involved than the other participants,” and “his role was far less than

others in the case who received lesser sentences.” R., Supp. Vol. 3 (M otion at 2

                                          -5-
(¶¶ 5-6). In response, the probation officer continued to maintain no mitigating

role adjustment was warranted and that M r. Lucero failed to assert any additional

facts which would establish his minor role.



      For reasons not fully disclosed in the record, two sentencing hearings were

continued with no sentence imposed. 5 At the third and last sentencing hearing,

M r. Lucero’s counsel argued the transaction between M r. Lucero and M r. Valdez

resulted in M r. Lucero being responsible for only twenty to thirty-five grams of

crack cocaine, and not the thirty-five to fifty grams he stipulated to in his plea

agreement and at the time of the change of plea hearing, which would reduce his

base offense level from 30 to 28 for a lesser sentence. In support, counsel offered

into evidence an unsworn, handwritten statement from M r. Valdez, who, counsel

explained, could not appear that day to testify. 6 The district court declined to

accept the statement, noting it lacked credibility given it was an unsworn



      5
         At least one hearing was continued in order to determine if M r. Lucero
was the individual arrested and convicted of the shoplifting charge included in his
criminal history report. Even though it was later determined M r. Lucero was not
the person who committed the crime, his criminal history points did not change as
it w as not assessed when calculating his criminal history category.
      6
         M r. Valdez’s handwritten statement, which was provided to the district
court at the sentencing hearing and signed by “Victor Valdez,” states: “To w hom
it may concern, To clarify for all parties involved, I, Victor V aldez, on July 6th
2005 delivered a half ounce (14 grams) of cocaine, not cocaine base, to Adam
Lucero at a residence in Denver, CO at approximately 9:30 p.m.” R., Supp. Vol.
3 (U ndated Valdez Statement).

                                          -6-
statement from a convicted felon and gang member. In addition, the district court

noted the untimeliness of counsel’s quantity challenge, pointing out it was not

raised at the two prior sentencing hearings. Nevertheless, the district court asked

whether counsel wanted to continue the sentencing hearing again in order to

present M r. Valdez for testimony. After conferring with M r. Lucero, counsel

stated, “H e prefers to go forward, Your Honor.” R., Supp. Vol. 1 at 5. The court

then advised, “the offense level will be 30 if he goes forward, period, end of

discussion,” and then asked, “why wasn’t it brought to the Court’s attention long

ago?” Id. After counsel conferred with M r. Lucero, counsel stated the issue was

raised at the change of plea hearing, to w hich the court responded, “Look, there

was no objection to the base offense level in the presentence report, was there? So

don’t tell me it’s not new.” Id. at 5-6. In response, counsel stated, “Y our Honor,

we’re prepared to proceed forw ard.” 7 Id. at 6.



      In imposing the sentence, the district court noted the minor participant



      7
         Later, in his statement to the court and in regard to the disputed Valdez
transaction, M r. Lucero stated:

      I was just trying to state what I feel is a fact, what I know is a fact
      about that specific transaction. But I appreciate that you give [sic]
      me the opportunity to speak with you. And the last thing I w ant to
      do is mess up a good thing, so I’m ready to accept whatever is
      handed down to me today.

R., Supp. Vol. 1 at 8.

                                          -7-
adjustment applied “if the defendant is less culpable than most other participants.”

Id. at 9. The district court then stated:

      Here the defendant ... bought quantities of crack cocaine from the co-
      defendant, Christopher Garduno, for redistribution purposes. He was
      not under the direction and control of Christopher Garduno. He did it
      on his ow n. He operated as an independent distributor.

            Based upon this information, it does not appear that the
      defendant was less culpable than other participants, and the Court will
      make no role adjustment. 8

Id.



      After adopting the factual findings in the presentence report and relying on

the advisory Guidelines calculations, the district court noted the Guidelines

sentencing range was 130 to 162 months imprisonment. Before imposing the final

sentence, the district court stated it had considered the sentencing factors in 18

U.S.C. § 3553, including the nature and circumstances of the offense, the history

and characteristics of M r. Lucero, and the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, provide just punishment

for the offense, afford adequate deterrence, protect the public, and provide M r.

Lucero with needed rehabilitation, professional supervision, and educational,

vocational or other correctional treatment.

      8
        In its related sentencing memorandum, the district court reiterated the
same reasoning on why the two-point minor participant adjustment under
U.S.S.G. § 3B1.2 cmt. n.5 did not apply to M r. Lucero.


                                            -8-
      After announcing the factors it considered, the district court granted the

government’s motion for a downward departure on grounds M r. Lucero provided

substantial assistance, although it indicated it did so without enthusiasm because

no evidence demonstrated M r. Lucero’s remorsefulness about his conduct. In

sentencing M r. Lucero, the district court noted that other than the facts contested

with respect to the role adjustment, neither the government nor M r. Lucero

challenged any other aspect of the presentence report. Finally, after finding no

misrepresentation of M r. Lucero’s criminal history, the district court sentenced

him to 110 months incarceration.



                                   III. Discussion

      On appeal, M r. Lucero continues to contest the district court’s finding he

was not a minor participant in the drug trafficking organization and alleges the

district court erred in refusing to conduct an evidentiary hearing after M r. Lucero

challenged the factual accuracy of the drug amount attributed to him.



                    A. Drug Quantity Evidentiary Hearing Claim

      Regarding his contention the district court erred in failing to conduct an

evidentiary hearing on the contested drug amount, M r. Lucero claims the district

court erroneously determined no dispute arose over the amount of drugs involved

in his case even though M r. Lucero objected to the factual accuracy of the drug

                                          -9-
amount used in the presentence report. In support, he refers to M r. Valdez’s

statement submitted to the district court 9 but attaches to his appellate brief a typed

and notarized affidavit from Mr. Valdez for our review. 10



      “W e review the denial of an evidentiary hearing for an abuse of discretion.”

United States v. Smith, 413 F.3d 1253, 1282 (10th Cir. 2005), cert. denied, 126 S.

Ct. 1093 (2006). In this case, M r. Lucero is raising a Booker issue, contending an

evidentiary hearing was necessary to establish beyond a reasonable doubt the facts

in support of the drug quantity used for sentencing purposes. However, the

Supreme Court reaffirmed in United States v. Booker that where, like here, the



      9
         W hile the undated, unsw orn, and handwritten statement is contained in
the record on appeal as an attachment to the presentence report, it is unclear when
it was provided to the probation officer. In addition, it is unsworn; was not
admitted into evidence or accepted as credible evidence by the district court at the
sentencing hearing; and contradicts the evidence obtained by authorities during
the investigation and M r. Lucero’s own stipulation on the type of cocaine he
purchased from M r. V aldez.
      10
          W e note M r. Valdez’s “new” typed, sworn affidavit is a document never
provided to the district court. Generally, even in a criminal trial, “[t]his court
will not consider material outside the record before the district court.” See United
States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). M oreover, even if w e
exercised equitable power to supplement the record on appeal, M r. Valdez’s
affidavit, when considered together with evidence obtained by the authorities and
M r. Lucero’s own stipulation, leaves us w ith the conclusion the affidavit would
not establish beyond any doubt the proper resolution of the pending issue or lead
us to believe the interests of justice would best be served by allowing
supplementation of the record or remand for an evidentiary hearing. Id. at 1192-
93.


                                          -10-
defendant makes an admission of the relevant facts, no such finding is required.

Specifically, it held “[a]ny fact (other than a prior conviction) which is necessary

to support a sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the defendant or proved to

a jury beyond a reasonable doubt.” Booker, 543 U.S. 220, 244 (2005) (emphasis

added).



      In this case, M r. Lucero’s guilty plea was supported by a plea agreement in

which he explicitly stipulated: 1) he purchased “crack” cocaine from M r. Valdez;

and 2) he was accountable for a drug quantity of thirty-five to fifty grams of

cocaine base for the purpose of calculating his base offense level. At his change

of plea hearing, he continued his stipulation, stating, “I take accountability, Your

Honor, for 35 grams or more of crack, between 35 and 50. But I never purchased

more than 50 grams, Your Honor.” R., Supp. Vol. 2 at 62. W hile he raised some

disagreement over the type of drug he purchased from M r. Valdez, M r. Lucero did

not withdraw his stipulation he purchased cocaine base from him or that he was

accountable for thirty-five to fifty grams of crack cocaine.



      Following his change of plea hearing, the record discloses M r. Lucero never

filed a formal objection to the drug quantity used in the presentence report.

Admittedly, at his sentencing hearing M r. Lucero contended he should be

                                         -11-
responsible for only twenty to thirty-five grams of cocaine base, as supported by

the unsworn, undated and handwritten statement from M r. Valdez. 11 However, he

did not pursue the issue and instead indicated he preferred to go forward, both

after the district court denied admission of the statement and offered to conduct an

evidentiary hearing to accommodate M r. Valdez’s testimony, and again, after it

advised M r. Lucero the base offense level w ould stand at 30 if he went forw ard.

Based on these circumstances, it is clear the district court did not abuse its

discretion in failing to conduct an evidentiary hearing on the drug quantity.



                           B. M inor Participant Objection

      Regarding his contention he was a minor participant, M r. Lucero now

expounds on that contention, claiming he was less culpable than most other

defendants because he: 1) had less drug amounts attributed to him than the other

defendants; 2) was not the focus of the undercover investigation; 3) w as not a

supervisor or manager within the organization; 4) had no knowledge about the

scope or structure of the organization; and 5) had no knowledge about other

participants at or above his level. However, M r. Lucero provides no specific



      11
         Nothing in the record indicates M r. Lucero filed a formal objection to
the quantity or type of cocaine applied in determining the base level amount. Our
determination is further evidenced by the district court’s inquiry on why the
quantity issue had not been brought to the court’s attention long ago and its
observation no previous objection was raised on the base offense level in the
presentence report.

                                         -12-
information to support these contentions.



      Section 3B1.2 of the G uidelines provides a range of adjustments for a

defendant who “plays a part in committing the offense that makes him

substantially less culpable than the average participant.” U .S.S.G. § 3 B1.2 cmt.

n.3(A). M ore specifically, § 3B1.2(b) allows the trial court to reduce a

defendant’s offense level by two levels if he or she was a “minor participant in any

criminal activity.” Commentary to § 3B1.2 also establishes “[a] defendant who is

accountable ... only for the conduct in which the defendant personally was

involved and who performs a limited function in concerted criminal activity is not

precluded from consideration for an adjustment ....” Id. at cmt. n.3(A ).



      W e review for clear error the district court’s refusal to award a defendant a

minor role reduction under U .S.S.G. § 3B1.2. See United States v. Virgen-

Chavarin, 350 F.3d 1122, 1130-31 (10th Cir. 2003). Under this standard, “[w]e

will not disturb a district court’s finding of fact unless it is without factual support

in the record, or if after reviewing the evidence we are left with the definite and

firm conviction that a mistake has been made.” United States v. Santistevan, 39

F.3d 250, 253-54 (10th Cir. 1994) (quotation marks and citations omitted). The

district court’s decision on whether to apply a minor role adjustment is “heavily

dependent upon the facts of the particular case,” and “in weighing the totality of

                                           -13-
the circumstances, [it] is not required to find, based solely on the defendant’s bare

assertion, that such a role adjustment is warranted.” U.S.S.G. § 3B1.2 cmt. n.3(C).

The defendant bears the burden of proving, by a preponderance of the evidence,

that he is entitled to a reduction under § 3B1.2. See Virgen-Chavarin, 350 F.3d at

1131. “A defendant’s own testimony that others were more heavily involved in a

criminal scheme may not suffice to prove his minor or minimal participation, even

if uncontradicted by other evidence.” United States v. Salazar-Samaniega, 361

F.3d 1271, 1278 (10th Cir. 2004).



      In this case, in pleading for a minor role reduction, M r. Lucero summarily

told the district court that “in comparison to the other co-defendants, [he] was a

minor participant because he was less culpable and less involved than the other

participants,” and that “his role was far less than others in this case who have

received lesser sentences.” R., Supp. Vol. 3 (M otion at 2 (¶¶ 5-6)). On appeal,

M r. Lucero continues to assert self-serving statements, but provides no specific

evidence to contradict the district court’s determination that no minor role

adjustment was warranted given he purchased quantities of crack cocaine for

redistribution purposes and was not under the direction and control of the seller,

but acted an as an independent distributor for redistribution purposes. Because

M r. Lucero’s self-serving assertions are clearly insufficient to meet his burden of

establishing entitlement to a minor role reduction, we cannot say the district court

                                         -14-
erred in failing to grant a minor role adjustment under U .S.S.G. § 3B1.2. In

addition, it is clear from his own stipulation that M r. Lucero acted as an

independent distributor of drugs by buying crack cocaine from M r. Valdez and M r.

Garduno and reselling it on his own to others. Clearly, such conduct does not lend

itself to a “minor role” in assessing the relevant drug trafficking conduct and it

was not error to conclude M r. Lucero was not less culpable than most other

participants.



      Finally, we have reviewed for reasonableness the length of M r. Lucero’s

sentence, as guided by the factors in 18 U.S.C. § 3553(a). See United States v.

Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). 12 In this case, it is

clear M r. Lucero’s sentence was properly calculated and a rebuttable presumption

exists as to its reasonableness, which M r. Lucero has not overcome. Id. at 1053-

55.




      12
         W e require reasonableness in two respects: “the length of the sentence,
as well as the method by which the sentence was calculated.” Kristl, 437 F.3d at
1055 (emphasis omitted). If the district court, as here, “properly considers the
relevant Guidelines range and sentences the defendant within that range, the
sentence is presumptively reasonable.” Id.

                                          -15-
                          IV. Conclusion

For these reasons, we A FFIRM M r. Lucero’s sentence.



                              Entered by the C ourt:

                              W ADE BRO RBY
                              United States Circuit Judge




                                -16-
