                                                                           FILED
                           NOT FOR PUBLICATION                               JUL 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30143

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00096-BLW-1

  v.
                                                 MEMORANDUM*
JESUS OCTAVIO ARREOLA-
BELTRAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                              Submitted July 9, 2013**
                                 Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Jose Octavio Arreola-Beltran (“Arreola-Beltran”) appeals two separate two-

level upward adjustments to his sentence, and the substantive reasonableness of his

sentence. He was convicted by a jury for possession with intent to deliver

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
methamphetamine and conspiracy with intent to distribute methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Arreola-Beltran was convicted

in a joint-trial with co-defendant Lucio Landeros-Valdez (“Landeros-Valdez”).

The third participant in the crime, Jose Gabriel Virgen (“Virgen”), cooperated with

the government and testified at the joint-trial. We have jurisdiction under 28

U.S.C. § 1291 and we affirm.

1. Arreola-Beltran appeals a two-level upward adjustment for his role as an

“organizer, leader, manager, or supervisor in any criminal activity” of at least “one

or more other participants.” U.S.S.G. § 3B1.1(c) cmt. n.2. We review the district

court’s factual finding that Arreola-Beltran was an organizer or leader of criminal

activity for clear error. United States v. Rivera, 527 F.3d 891 (9th Cir. 2008). We

review the application of the Sentencing Guidelines to the facts for abuse of

discretion. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

      Here, the district court did not err in finding that there were critical facts that

corroborated Jose Gabriel Virgen’s (“Virgen”) testimony that Arreola-Beltran was

the leader of the small drug organization: (1) Arreola-Beltran was the only co-

defendant to have phone contact with the confidential informant and undercover

officers; (2) Arreola-Beltran told the confidential informant he was sending Virgen

to the sale because Arreola-Beltran was nervous that Arreola-Beltran, Landeros-


                                           2
Valdez, and Virgen were being followed; (3) at the controlled sale Virgen told

Sargent Banda that he needed to confer with Arreola-Beltran about making a larger

sale; and (4) at the time of arrest Arreola-Beltran possessed the monetary proceeds

from the controlled sale.

      The district court did not abuse its discretion in applying the two-level

upward adjustment because evidence was sufficient to “sustain a finding” that

Arreola-Beltran “exercised some control over others involved in the commission of

the offense.” United States v. Avila, 95 F.3d 887, 889 (9th Cir. 1996) (internal

citation omitted).

2. Arreola-Beltran appeals an additional two-level upward adjustment to his

sentence for obstruction of justice. We review “a district court’s determination of

the reliability of evidence used at sentencing for an abuse of discretion.” United

States v. Felix, 561 F.3d 1036, 1040 (9th Cir. 2009) (citing United States v. Marin-

Cuevas, 147 F.3d 889, 895 (9th Cir. 1998)).

      At sentencing, the district court sua sponte raised the issue of obstruction of

justice because Arreola-Beltran provided false information to a probation officer




                                          3
during the preparation of his Presentence Report.1 See § 3C.1 cmt. n.4(H)

(obstruction of justice sentencing enhancement applies where defendant provides

materially false information to probation officer with respect to presentence

investigation).

      Here, there is ample evidence that Arreola-Beltran knew of the drugs and

willingly participated in the criminal activity. When he was interviewed by the

probation officer, against the advice of counsel, Arreola-Beltran stated that he did

not know there were drugs in Virgen’s car until he, Landeros-Valdez, and Virgen

were arrested. At his own sentencing hearing, however, Arreola-Beltran testified

that he found out about the drugs when he, Landeros-Valdez, and Virgen arrived in

Oregon, and that Virgen asked Arreola-Beltran to help with the sale in exchange

for money. Thus, because of Arreola-Beltran’s own admission, the district court

did not abuse its discretion in finding that Arreola-Beltran obstructed justice by

providing materially false information to the probation officer preparing his

Presentence Report.




      1
        The Government had previously raised a two-level adjustment for
obstruction of justice on the independent ground that Arreola-Beltran allegedly
made threats to co-defendant Virgen. Arreola-Beltran argues that there was
insufficient evidence to support these allegations. We do not reach this argument.

                                          4
       3. We review the substantive reasonableness of the 240 month sentence

imposed on Arreola-Beltran for abuse of discretion. Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc) (citations omitted).

       In Carty, we stated that “[t]he overarching statutory charge for a district

court is to ‘impose a sentence sufficient, but not greater than necessary’ to reflect

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

punishment; to afford adequate deterrence; to protect the public; and to provide the

defendant with needed educational or vocational training, medical care, or other

correctional treatment.” 520 F.3d at 991 (quoting 18 U.S.C. §§ 3553(a) and

(a)(2)).

       At sentencing, the district court explained the basis for Arreola-Beltran’s

240 month sentence sufficiently to permit meaningful appellate review. Id. at 992.

The district court reasoned that Arreola-Beltran’s 240 month Guidelines-range

sentence was appropriate because: (1) co-defendant Virgen cooperated during the

investigation, whereas Arreola-Beltran did not; (2) Arreola-Beltran pled guilty to

drug trafficking in Idaho in 2008 but left the jurisdiction before the charge could be

effectuated; (3) Arreola-Beltran lacked a record of employment even though he has

been in the United States on and off since he turned eighteen, indicating that his


                                           5
sole occupation is dealing methamphetamine; and (4) methamphetamine is a very

serious drug that destroys many lives. Thus, the district court did not abuse its

discretion when it imposed a 240 month sentence on Arreola-Beltran.

      AFFIRMED.




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