                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3802
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

            Juan Carlos Arteaga Talavera, also known as Mario Solis

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                             Submitted: June 12, 2013
                                Filed: July 2, 2013
                                  [Unpublished]
                                 ____________

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
                        ____________

PER CURIAM.

     Juan Carlos Arteaga Talavera appeals his sentence for conspiracy to distribute
methamphetamine, distribution of methamphetamine, and possession with intent to
distribute methamphetamine. Talavera argues that the district court1 incorrectly
applied a two-level sentencing guideline enhancement for obstruction of justice,
procedurally erred by treating the advisory sentencing guideline range as mandatory,
and imposed a substantively unreasonable sentence. We affirm.

       On October 26, 2011, a grand jury indictment charged Talavera and three other
individuals with conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A); nine counts of distribution of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and one count of possession with
intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A). Talavera’s three co-defendants pleaded guilty, and on August 6, 2012, trial
commenced on the nine counts against Talavera.2 Talavera’s co-defendant, Juan
Carlos Perez, testified at trial that while the two men were incarcerated at the Polk
County Jail in Des Moines, Iowa, Talavera threatened physical harm to persons who
cooperated with the Government in his criminal prosecution. Perez testified that
Talavera said “[t]hat people who were cooperating, it would be best if they shot them
in the head.”

       The jury returned a guilty verdict on all counts. The draft Presentence
Investigation Report (“PSR”) recommended that the district court impose a two-level
enhancement under United States Sentencing Guideline (“USSG”) § 3C1.1 for
obstruction of justice based on Perez’s trial testimony concerning Talavera’s alleged
threat. Talavera did not object to the inclusion in the PSR of that portion of Perez’s
testimony, nor did he object to the application of the obstruction of justice
enhancement. As a result, the final PSR included the two-level enhancement in the
sentencing guideline calculation. At sentencing, the district court found that, based

      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
      2
          Two of the methamphetamine distribution counts were unrelated to Talavera.

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on the PSR, Talavera had a total offense level of 40, a criminal history category of I,
and an advisory guideline range of 292-365 months. Talavera agreed that the district
court’s guideline calculation was correct but argued that the district court should vary
downward from the guideline range based on his less culpable role in the conspiracy
and the sentences of his co-defendants. The district court ultimately imposed a
sentence of 292 months’ imprisonment. Talavera appeals.

       When reviewing a sentence, “[w]e ‘must first ensure that the district court
committed no significant procedural error,’” such as improperly calculating the
applicable guideline range or treating the guideline range as mandatory. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). Talavera first argues that the district court
erred in applying a two-level enhancement for obstruction of justice. Ordinarily, we
review a district court’s factual findings underlying an enhancement for obstruction
of justice for clear error and review its construction and application of the guidelines
de novo. United States v. Mabie, 663 F.3d 322, 334 (8th Cir. 2011). However,
where, as here, a defendant fails to object to the enhancement, our review is limited
to plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005).

      Pursuant to USSG § 3C1.1, a defendant is subject to a two-level enhancement
for obstruction of justice if:

      (1) 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 (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense . . . .

Application Note 4(A) states that an example of the type of conduct warranting the
enhancement is “threatening, intimidating, or otherwise unlawfully influencing a co-

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defendant, witness, or juror, directly or indirectly, or attempting to do so.” To apply
the enhancement, the district court must find that the defendant obstructed justice by
a preponderance of the evidence. United States v. Wisecarver, 644 F.3d 764, 773 (8th
Cir. 2011). Here, the district court properly applied the obstruction of justice
enhancement because based on Perez’s trial testimony, the court found that the
Government had demonstrated by a preponderance of the evidence that Talavera had
threatened his co-defendant Perez. See United States v. Crume, 422 F.3d 728, 732
(8th Cir. 2005) (holding that the district court properly applied the obstruction of
justice enhancement based on evidence that the defendant threatened fellow prisoners
with harm if they were to provide information to the Government). Talavera argues
that Perez’s trial testimony was not credible because it was motivated by the prospect
of a lower sentence. On cross-examination, however, Talavera fully explored Perez’s
motives for testifying. Moreover, “[a] district court has wide discretion at sentencing
as to the kind of information considered or its source,” United States v. Atkins, 250
F.3d 1203, 1212 (8th Cir. 2001), and the district court’s decision to find Perez’s
testimony credible was not clearly erroneous, see United States v. Smith, 576 F.3d
513, 516 (8th Cir. 2009) (“[A]ssessing a witness’s credibility is a duty for the district
court, and its assessment is ‘virtually unreviewable on appeal’” (quoting United
States v. Ralph, 480 F.3d 888, 890 (8th Cir. 2007))). Accordingly, we find no error,
much less plain error in the district court’s application of the obstruction of justice
enhancement.3




      3
        Talavera also argues that the district court was required to undertake a review
of the evidence independent of the jury verdict, citing United States v. Negrete, 537
F.3d 918, 922 (8th Cir. 2008). This argument is unavailing as the “independent
evaluation requirement” is unique to a district court’s determination of whether to
apply the obstruction of justice enhancement based on the defendant’s commission
of perjury. See id.


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       Talavera also contends that the district court procedurally erred by treating the
advisory guideline range as mandatory. Because Talavera did not raise this argument
before the district court, we again review it for plain error. See Pirani, 406 F.3d at
549. We cannot conclude that the district court erred at all, let alone plainly erred,
because the district court explicitly stated that the guidelines “are no longer
mandatory.” The district court also was aware of—and expressly considered—its
ability to vary downward from the guideline range. Thus, the district court did not
procedurally err in imposing Talavera’s sentence.

        If the sentence is procedurally sound, we then review the substantive
reasonableness of the sentence under an abuse-of-discretion standard, taking into
account the totality of the circumstances. Feemster, 572 F.3d at 461. Talavera
contends that his sentence is substantively unreasonable because there is an
unwarranted disparity between his sentence and the sentences imposed on his three
co-defendants. See 18 U.S.C. § 3553(a)(6). Talavera points out that Teodolo
Garcia—the leader of the conspiracy—received a sentence of 220 months, while
Perez, who testified against Talavera at trial, received a sentence of 30 months.
Talavera asserted at sentencing that he should receive a sentence similar to Barajas
Garcia, who received a sentence of 151 months, because they had similar levels of
culpability. However, “[a] sentence that falls within a properly-calculated advisory
guidelines range . . . is presumptively reasonable on appeal,” United States v.
Frausto, 636 F.3d 992, 997 (8th Cir. 2011), and Talavera’s arguments attacking the
substantive reasonableness of his sentence are without merit. Although Talavera
might have been equally, or even less, culpable than his co-defendants, the district
court correctly noted that Talavera was not similarly situated to his co-defendants,
explaining that other factors such as Talavera’s decision to go to trial, Perez’s
decision to cooperate with the Government, and Talavera’s threat to Perez all affected
his sentence. See United States v. Jones, 612 F.3d 1040, 1045 (8th Cir. 2010) (“[I]t
is not an abuse of discretion to impose a sentence that results in disparity between co-



                                          -5-
defendants where there are legitimate distinctions between co-defendants.”); see also
United States v. Chaika, 695 F.3d 741, 746 (8th Cir. 2012) (holding that the disparity
between the defendant’s sentence and the lower sentence of a more culpable co-
conspirator was warranted because “[a] defendant’s cooperation with the government
is a legitimate basis for sentencing disparity”). Accordingly, we conclude that the
district court did not abuse its discretion in imposing Talavera’s sentence.

      For the foregoing reasons, we affirm.
                      ______________________________




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