                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0631n.06
                                                                                           FILED
                                           No. 10-6193                                Jun 18, 2012
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES,                                    )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   WESTERN DISTRICT OF TENNESSEE
RUBEN GAUNA,                                      )
                                                  )
       Defendant-Appellant.                       )                   OPINION
                                                  )


       Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Defendant Ruben Gauna appeals the sentence

imposed by the district court following his guilty plea to conspiracy to possess marijuana with the

intent to distribute, in violation of 18 U.S.C. §§ 812, 841(a)(1), and 846. Following a sentencing

hearing, the district court attributed twenty-eight pounds of marijuana and three ounces of crack

cocaine to Gauna and sentenced him to sixty months imprisonment. Gauna asserts that the district

court clearly erred in calculating the amounts of marijuana and crack cocaine attributable to him and

by attributing drug amounts to him based on his conspiracy involvement without making

particularized findings regarding the scope of that conspiracy. Gauna also challenges the district

court’s application of the obstruction of justice enhancement. For the following reasons, we

AFFIRM Gauna’s sentence.
No. 10-6193, Unites States v. Gauna


                                       I. BACKGROUND

       This case stems from the murder of Tennessee State Trooper Calvin Jenks, who was shot and

killed by Alejandro Gauna1 on January 6, 2007, after Trooper Jenks stopped the car in which

Alejandro was riding. Alejandro purchased three pounds of marijuana from his brother Ruben

Gauna and traveled from Austin, Texas to Tennessee in a rented Toyota with a coconspirator.

Alejandro and the coconspirator were stopped by Trooper Jenks in Tipton County, Tennessee.

Investigators later learned Alejandro and the driver of the car were involved in drug trafficking with

Ruben Gauna and others.

       On April 28, 2009, a federal grand jury returned an indictment charging Ruben Gauna and

three codefendants with conspiracy to possess with intent to distribute marijuana, in violation of 18

U.S.C. §§ 812, 841(a)(1), and 846. On December 11, 2009, Gauna pled guilty to this charge in a

written plea agreement. In exchange for the plea, the Government agreed to recommend a three-

level reduction for acceptance of responsibility.

       Gauna’s Presentence Report (“PSR”) set his base offense level at 26, adding a two-level

enhancement for possession of a weapon and a two-level enhancement for obstruction of justice,

thereby yielding a total offense level of 30. The Government subsequently recommended that certain

drug amounts described in the PSR not be included in Gauna’s relevant conduct and, in a Second

Addendum to the PSR, his base offense level was reduced to 16, yielding a total offense level of 20.

A Third Addendum to the PSR included a three-level reduction for acceptance of responsibility,



       1
         Alejandro Gauna and the Defendant-Appellant Ruben Gauna are brothers. For clarity, we
refer to Alejandro Gauna as “Alejandro” and Ruben Gauna as “Gauna” where their full names are
not used.
No. 10-6193, Unites States v. Gauna


reducing the total offense level to 17. Finally, a Fourth Addendum to the PSR was filed after the

Government supplied the Probation Office with additional information from a witness willing to

testify that she observed Gauna in conspiracy to traffic three ounces of crack cocaine. Gauna then

had a base offense level of 32, a total offense level of 31, and a criminal history category of V, which

yielded an advisory guideline range of 168 to 210 months, restricted by a statutory maximum of 60

months.

        At a sentencing hearing on September 22, 2010, the district court heard testimony from three

Government witnesses. Tennessee Bureau of Investigation Special Agent David Harmon testified

regarding a January 2007 sworn statement by Kimberly Young, the girlfriend of coconspirator

Emilio Fernandez. Young said she saw a trash bag in which she counted twenty-eight bricks of

marijuana that was delivered to Ruben Gauna at the trailer where the Gauna brothers, Young, and

Fernandez lived. Harmon testified officers found a trash bag that contained marijuana residue in a

garbage can inside the residence.

        The second Government witness, Jennifer Hernandez, testified that Gauna’s brother,

Alejandro, lived with her for six months to one year prior to 2006, during which time she

occasionally purchased marijuana from Alejandro. She testified that Alejandro only became a “big

time seller” when he moved out—about the time Ruben Gauna was released from jail and moved

in with Alejandro. Hernandez testified that she purchased marijuana at least three times a week from

Alejandro in 2006; that Ruben Gauna was with Alejandro most of those times and gave her

marijuana on a few occasions; and that she saw crack cocaine at the Gaunas’ residence “just about

every time” she went to buy marijuana there. On one occasion when the Gaunas were both present,
No. 10-6193, Unites States v. Gauna


Hernandez observed “at least like two ounces, two and a half ounces” of crack cocaine packaged for

distribution.

        Finally, codefendant Emilio Fernandez testified that he met Gauna’s brother, Alejandro, in

October 2006; that he purchased crack cocaine from Alejandro once or twice a day; and that on at

least two occasions, he purchased crack cocaine from Gauna. On one of these occasions, Fernandez

testified that Gauna “fronted” him crack cocaine supplied by Alejandro and Guana told Fernandez

that he had just gotten out of jail and he would go back if necessary because he would kill Fernandez

if Fernandez didn’t pay his brother back the money. Fernandez testified Gauna was with Alejandro

about half of the times that Fernandez purchased crack cocaine from Alejandro.

        In December 2006, Alejandro and Ruben Gauna moved in with Fernandez and Fernandez’s

girlfriend, Kimberly Young, in their trailer home. The Gauna brothers kept a safe in an empty room

in the trailer. Both Alejandro and Ruben Gauna used the safe. Fernandez testified he observed bags

of crack and bags of powder cocaine in the safe, totaling over an ounce of crack cocaine during the

time the Gaunas lived there. Fernandez testified it was obvious to him that Ruben Gauna was

involved in drug distribution with Alejandro.

        Fernandez testified that after Alejandro shot and killed Trooper Jenks, Ruben Gauna

repeatedly called Fernandez. Over several calls, Gauna warned him “something had happened,”

police would be coming to the trailer home, and he should get out of the house. Gauna instructed

Fernandez not to tell police that the Gaunas had been staying at the trailer and to report falsely that

the car Alejandro was driving had been stolen.
No. 10-6193, Unites States v. Gauna


        At the close of all evidence, and after hearing from Gauna, his attorney, and the Government,

the district court attributed twenty-eight pounds (estimating one pound per bundle) of marijuana and

three ounces of crack cocaine to Gauna. The district court confirmed this yielded a Guideline Range

of 168 to 210 months, but sentenced Gauna to the statutory maximum of 60 months’ imprisonment.

                                           II. DISCUSSION

A.      Calculation of Drugs Attributable to Gauna

        1.      Standard of Review

        This Court reviews a sentencing court’s determination of the quantity of drugs attributable

to a defendant for clear error. United States v. Jackson, 470 F.3d 299, 310 (6th Cir. 2006). “[A]

finding is clearly erroneous when although there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.”

United States v. Vasquez, 352 F.3d 1067, 1070 (6th Cir. 2003) (alteration in original) (quoting

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). “A reviewing court may not reverse

a finding of the trier of fact merely because it would have decided the matter differently.” Id. at

1070-71. Rather, “[i]f the district court’s account of the evidence is plausible in light of the record

viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently.” Id. (alteration in original)

(quoting Anderson, 470 U.S. at 573-74).

        “The government must prove the amount to be attributed to a defendant by a preponderance

of the evidence.” United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004) (quoting United

States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)). “A reviewing bench should sustain a
No. 10-6193, Unites States v. Gauna


sentencing court’s factual finding if it was supported by some minimum indicium of reliability

beyond mere allegation.” Hernandez, 227 F.3d at 699 (citations and internal quotation marks

omitted). If “the exact amount of drugs involved is uncertain, the court may make an estimate

supported by competent evidence.” United States v. Keszthelyi, 308 F.3d 557, 576 (6th Cir. 2002)

(citation omitted). District courts may approximate the quantity of drugs for sentencing purposes

based upon circumstantial evidence as long as they err on the side of caution. See United States v.

Elder, 90 F.3d 1110, 1127 (6th Cir. 1996).

       2.      Marijuana

       Gauna argues the district court erred in attributing twenty-eight pounds of marijuana to him

because the court failed to credit Fernandez’s PSR statement that he only saw eight bundles of

marijuana. At the sentencing hearing, Special Agent Harmon testified that Young told him she

observed twenty-eight bundles of marijuana delivered to Gauna and that she counted those bundles.

Gauna points to Fernandez’s PSR statement that he observed Rivera Arvizu, a supplier of marijuana

to Ruben Gauna, come to their trailer residence in early January 2007 and bring eight bundles of

marijuana to Gauna. The PSR also states that Fernandez overheard Gauna say, shortly before

Alejandro’s drive to Tennessee, that Gauna sold Alejandro three pounds of marijuana and, as a

result, he did not have enough marijuana for his customers. Although Fernandez testified at the

sentencing hearing, neither the Government nor Gauna’s counsel questioned him regarding the

amount of marijuana he observed. Gauna asserts Fernandez’s PSR statement that he saw eight

bundles should overcome Young’s statement because Fernandez was in a better position to know
No. 10-6193, Unites States v. Gauna


the quantity of marijuana given Young’s PSR statement that Fernandez acted as an interpreter

between Arvizu and Gauna for the drug deal.

        At the sentencing hearing, Gauna’s counsel presented the court with Fernandez’s PSR

statement to dispute Young’s claim of twenty-eight bundles. The district court found Young’s

statement and the testimony of Special Agent Harmon to be credible. Gauna’s counsel noted that

the district court had also found Fernandez’s hearing testimony credible, to which the court

responded that the statements could be reconciled because someone might see only eight bundles,

though there could be twenty-eight bundles in total, or one could have seen them at different times.

In crediting Young’s statement, the district court essentially made credibility determinations

regarding Special Agent Harmon’s testimony and the statements provided by Young and Fernandez.

        “The sentencing court’s credibility determinations, like other factual findings, must be

accepted on review unless shown to be clearly erroneous.” United States v. Hurst, 228 F.3d 751, 761

(6th Cir. 2000). This Court “accords great deference to such credibility determinations,” United

States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999), because the district court is “in the

best position to judge credibility,” United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)

(finding it not clearly erroneous for the district court to credit testimony and articulate, on its own,

plausible explanations for apparent inconsistencies). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S.

at 574; see also United States v. Dillard, 438 F.3d 675, 681 (6th Cir. 2006) (holding district court’s

reconciliation of seemingly contradictory testimony was not clearly erroneous). As the district court

reasoned, the statements of Young and Fernandez could be reconciled because it is possible
No. 10-6193, Unites States v. Gauna


Fernandez only observed a subset of the marijuana Arvizu brought Gauna.2 The court’s crediting

of Young’s statement that she counted twenty-eight bundles and its reasoning that this statement was

reconcilable with Fernandez’s testimony were not clearly erroneous.

       3.      Crack Cocaine

       Gauna argues the district court clearly erred in attributing three ounces of crack cocaine to

him because this estimate was based on the unreliable testimony given by Jennifer Hernandez. The

PSR attributed three ounces of crack cocaine to Gauna based on Hernandez’s statement that she

observed three ounces on one particular occasion. Hernandez’s sentencing hearing testimony,

however, only established two ounces during that incident, which the Government conceded at the

hearing. However, Emilio Fernandez testified he observed an ounce of crack cocaine in the Gaunas’

safe, bringing the total to three ounces, which the district court noted was a “very, very, very

conservative determination.”

       Gauna disagrees that Hernandez’s testimony established even two ounces because he asserts

her testimony was not reliable. Gauna points out that, when asked to approximate the amount of

total crack cocaine Hernandez witnessed whenever she went to the Gaunas’ residence, Hernandez

testified she “really didn’t know” because “crack cocaine is totally different from marijuana” and

“little bitty stones sitting up there, you don’t know what it is, if it is half an ounce, a whole ounce,


       2
         Notably, although Young testified that Fernandez acted as an interpreter during the drug
transaction between Gauna and Arvizu—and Gauna relies on this to argue Fernandez is a more
credible witness—Fernandez stated Gauna sent him to the back room as soon as Arvizu arrived and
that Fernandez only knew that the bundles contained marijuana because he later found marijuana
residue on the kitchen floor. Even if the two statements could not be reconciled, it would not be
clear error for the district court to credit Young’s statement that she snuck back and actually counted
twenty-eight bundles over Fernandez’s statement that he saw Arvizu bring in eight bundles before
he was sent to the back room.
No. 10-6193, Unites States v. Gauna


you don’t know.” The Sentencing Guidelines establish a minimum indicia-of-reliability standard

that evidence must meet in order to be admissible in sentencing proceedings. U.S.S.G. § 6A1.3(a)

(2009). “Thus, pursuant to § 6A1.3, ‘the district court is obligated to rely on reliable evidence at

sentencing.’” United States v. Christman, 509 F.3d 299, 305 (6th Cir. 2007) (citation omitted).

When asked about her ability to identify particular quantities of crack cocaine, Hernandez testified,

“I have seen it on the street . . . and knew what it was. I knew about how much it was too.” She

testified she had seen the same amount of crack cocaine before, she was familiar with it because her

family members used crack cocaine, she knew an ounce of crack cocaine was about twenty-eight

grams, and that an ounce of crack cocaine was smaller than an ounce of marijuana. Despite her

concerns about identifying amounts, Hernandez ultimately stated that she observed more than two

and a half ounces but less than ten ounces over the period in which she visited the Gaunas’ residence.

       Gauna is correct that Hernandez’s testimony reveals she was more confident in the amount

of crack cocaine she witnessed on the one particular incident than the total amount she observed over

the entire period during which Gauna was present. However, neither the Government nor the district

court attributed the larger amount (potentially ten ounces) to Gauna. Hernandez consistently testified

at the hearing that she observed at least two ounces of crack cocaine on one occasion. Although

Hernandez’s PSR statement estimated three ounces on one occasion and her hearing testimony only

estimated two, the Government asked Hernandez to be conservative in her estimates at the hearing.

Gauna questioned Hernandez’s credibility at the sentencing hearing and the district court expressly

found her to be a credible witness and also stated that Fernandez’s observance of crack cocaine in

Gauna’s residence corroborated Hernandez’s testimony.
No. 10-6193, Unites States v. Gauna


       Gauna cites United States v. Robison, 904 F.2d 365 (6th Cir. 1990), to support his argument

that Hernandez’s testimony was unreliable.           However, Hernandez’s testimony is clearly

distinguishable from the unreliable testimony in that case. In Robison, this Court held the witness’s

testimony about cocaine quantities was not “sufficiently accurate” because the witness admitted (1)

she was a heavy drug user subject to periods of memory loss; (2) the time period at issue in the case

was “a very hazy time” because of her level of drug usage; (3) she could not initially fix an estimate

of drugs and felt pressured into doing so; and (4) her estimate “was totally a guess” for which she

had “no factual basis.” Id. at 371-72. Hernandez’s lack of confidence in estimating an aggregate

amount of observed crack cocaine over an extended period of time does not rise to the level of

unreliability exhibited in Robison.

       Gauna does not directly challenge the reliability of Fernandez’s testimony that he observed

an ounce of crack cocaine in Gauna’s safe. Instead, Gauna asserts no other testimony provided

reliable evidence of crack cocaine amounts attributable to him because no witness ever observed him

dealing in crack cocaine. However, this argument lacks foundation because Fernandez testified that

he purchased crack cocaine from Gauna on two separate occasions. As with Hernandez, the district

court found Fernandez a credible witness. Gauna has failed to demonstrate that the district court

clearly erred in its assessment of the credibility of Hernandez and Fernandez or its finding that three

ounces of crack cocaine should be attributed to Gauna.

       4.      Scope of the Conspiracy

       Gauna argues the district court erred by finding Gauna responsible for three ounces of crack

cocaine attributable to Alejandro without making individualized findings concerning the scope of
No. 10-6193, Unites States v. Gauna


the conspiracy to which Ruben Gauna agreed. For a defendant to be held accountable for the actions

of coconspirators, “(1) the conduct must be in furtherance of the jointly undertaken criminal activity;

and (2) the conduct must be reasonably foreseeable in connection with that criminal activity.”

United States v. Campbell, 279 F.3d 392, 399 (6th Cir. 2002) (citing U.S.S.G. § 1B1.3, cmt. n.2).

“[I]ndividualized findings regarding the scope of the conspiracy and the duration and nature of each

defendant’s participation in the scheme” are required, United States v. Meacham, 27 F.3d 214, 217

(6th Cir. 1994), and a preponderance of reliable evidence must establish both scope and

foreseeability, United States v. Critton, 43 F.3d 1089, 1098-99 (6th Cir. 1995).

       Gauna does not dispute a foreseeability finding; rather, he argues that the court did not make

any particularized findings regarding the scope of the criminal activity to which Gauna agreed.

However, the record shows the court did make a finding regarding the scope of the conspiracy, as

it noted that the court had looked at the drug conspiracy and the scope of the drug conspiracy, and

“we have gone through that and set that out in a lot of detail.” The discussion preceding this

statement recounts the Government’s argument that the drug conspiracy, in addition to marijuana,

included a conspiracy to sell and distribute crack cocaine as evidenced by the testimony of

Hernandez and Fernandez. After discussing the witnesses’ credibility, the court concluded “the

evidence in the case that has been presented by the government supports the position that Mr. Ruben

Gauna and his brother were involved in a drug distribution operation, that it involved marijuana and

cocaine trafficking, that it was one conspiracy.”

       The district court’s finding that a preponderance of the evidence showed a conspiracy to

distribute both marijuana and crack cocaine was not clearly erroneous. Although mere presence
No. 10-6193, Unites States v. Gauna


alone will not support a finding of conspiracy, presence is a material and probative factor which may

be considered, and a defendant’s participation in the conspiracy’s common purpose and plan may

be inferred from the defendant’s actions and reactions to the circumstances. See United States v.

Hodges, 935 F.2d 766, 773 (6th Cir. 1991) (citing United States v. Christian, 786 F.2d 203, 211 (6th

Cir. 1986)). There is sufficient evidence that Gauna participated in a conspiracy to sell crack

cocaine, including Fernandez’s testimony that Gauna (1) sold him crack cocaine on two occasions,

(2) threatened to kill Fernandez if he did not pay Alejandro for the “fronted” drugs, and (3) shared

a safe with his brother in which both powder and crack cocaine were stored. Therefore, the district

court made the requisite finding that the scope of the conspiracy to which Gauna agreed included the

sale of crack cocaine and such a finding was not clearly erroneous.

A.      Sentencing Enhancement for Obstruction of Justice

        1.      Standard of Review

        This Court has utilized two different standards of review when examining a district court’s

application of the sentencing enhancement for obstruction of justice under U.S.S.G. § 3C1.1,

including both a tri-partite standard of review and a more deferential standard that applies clear error

review to the entire analysis. See United States v. Cole, 359 F.3d 420, 430-31 (6th Cir. 2004).

Under the three-part standard, this Court first reviews the factual determinations made by the district

court for clear error. United States v. Middleton, 246 F.3d 825, 845-46 (6th Cir. 2001). “Second,

a district court’s conclusion that a given set of facts constitutes obstruction of justice is a mixed

question of law and fact that we review de novo. Finally, once a district court has determined that

a defendant has obstructed justice, then application of a two-level enhancement at that point is
No. 10-6193, Unites States v. Gauna


mandatory, and we review the enhancement de novo.” Id. (citation omitted). In contrast, in United

States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), this Court held that a clear error standard

of review was appropriate for reviewing sentencing enhancements under U.S.S.G. § 3C1.1 where

“the sole issue before the district court is a fact-bound application of the guideline provisions.” Id.

at 390. We have not yet endorsed a particular approach, Cole, 359 F.3d at 431, but we need not

decide this issue here because the district court’s decision in this case is correct under either

standard.

        2.      Analysis

        The district court applied a two-level sentencing enhancement for obstruction of justice based

on the phone calls from Gauna to Fernandez, which the court characterized as “a persistent tipoff.”

Guidelines § 3C1.1 provides for a two-level enhancement if “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.” Obstruction of justice can include

“destroying or concealing or directing or procuring another person to destroy or conceal evidence

that is material to an official investigation or judicial proceeding . . . , or attempting to do so,” as long

as it is not solely conduct that occurs “contemporaneously with arrest (e.g., attempting to swallow

or throw away a controlled substance).” Id., cmt. n.4(D).

        Gauna disputes the factual basis for the enhancement solely on the ground that there was no

evidence presented at the hearing establishing that Gauna advised Fernandez to dispose of drug

evidence when he and Young left the trailer. This argument is irrelevant because the district court

did not rely on destruction of drugs from the house. Rather, the district court concluded that a
No. 10-6193, Unites States v. Gauna


preponderance of the evidence showed the phone calls were made in an attempt to remove

individuals from the area and to obstruct the investigation. Fernandez testified, and Gauna did not

dispute, that Gauna called him several times to warn Fernandez the police were coming, to tell him

to get out of the house, to direct him to report the car as stolen, and to instruct him not to mention

that the Gaunas lived at the trailer. At argument, Gauna’s counsel characterized the phone calls as

merely informing Fernandez that police were coming to their residence. This ignores Fernandez’s

undisputed testimony that Gauna also directed Fernandez to report as stolen the vehicle Alejandro

had been riding in and to lie to law enforcement about whether the Gauna brothers lived with

Fernandez. This Court has previously held that an obstruction enhancement was properly applied

where a defendant called another person from jail asking him to report a getaway vehicle as stolen.

United States v. Waldon, 206 F.3d 597, 609 (6th Cir. 2000) (“This telephone call clearly qualifies

as an attempt on the part of Waldon to direct another person to conceal evidence material to the

investigation.”). Based on Fernandez’s testimony, the district court did not clearly err in finding

these facts and, even under the less deferential de novo standard, the court properly applied the

enhancement to Gauna.

       Alternatively, Gauna argues that, even if there were facts sufficient to trigger the

enhancement, his conduct fell within the “contemporaneously with arrest” exception. Application

note 4(D) of Guidelines § 3C1.1 states that, if the defendant’s obstructive actions “occurred

contemporaneously with arrest (e.g., attempting to swallow or throw away a controlled substance),

it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted

in a material hindrance to the official investigation or prosecution of the instant offense or the
No. 10-6193, Unites States v. Gauna


sentencing of the offender.” This Court considered the application of this exception in Waldon,

finding that the exception did not apply because Waldon made the phone call six hours after his

arrest and, therefore, his actions were not an immediate attempt at obstruction. 206 F.3d at 608-09.

       Gauna argues that his phone calls were made contemporaneously with Alejandro’s arrest.

At the sentencing hearing, Fernandez could not remember the exact times of the phone calls but it

is undisputed that Gauna called Fernandez multiple times. See United States v. Swoveland, 51 F.

App’x 516, 517 (6th Cir. 2002) (a thirty-minute period between defendant’s arrest and phone call

to a third party requesting destruction of evidence in her home was sufficient time “to contemplate

her actions before the call was made”). Gauna clearly had time to contemplate his actions, if not

before the first phone call, at least before his later calls. Therefore, the “contemporaneously with

arrest” exception does not apply and the district court properly applied the obstruction of justice

enhancement to Gauna’s sentence.

                                      III. CONCLUSION

       For the foregoing reasons, we AFFIRM Gauna’s sentence.
