                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          August 20, 2010
                                  TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff–Appellee,
                                                            No. 10-1142
 v.                                              (D.C. No. 1:08-CR-00309-WYD-1)
                                                             (D. Colo.)
 NATHAN VALDEZ,

        Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Nathan Valdez appeals his sentence, arguing that the district court abused its

discretion by imposing a four-level sentencing enhancement pursuant to U.S.S.G.

§ 2B1.1(b)(2)(B). Exercising jurisdiction under 18 U.S.C. § 3742(a), and 28 U.S.C.

§ 1291, we affirm.


      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
       While serving as a postal employee, Valdez opened letters and removed their

contents. He pled guilty to three counts of delay of mail in violation of 18 U.S.C.

§ 1703(a), and three counts of theft of mail matter by an employee in violation of § 1709.

A Presentence Investigation Report (“PSR”) calculated a base offense level of six, and

added four levels under U.S.S.G. § 2B1.1(b)(2)(B) because the offense “involved 50 or

more victims.” Valdez objected to this enhancement. Following a sentencing hearing at

which testimony was presented, the district court found that the four-level enhancement

was appropriate and sentenced Valdez to a term of six months’ home confinement and

three years’ probation. Valdez timely appealed.

       Valdez contends that insufficient evidence supported the district court’s finding

that his crimes involved fifty or more victims. “When considering the calculation of a

Guidelines sentencing range, we review legal questions de novo and we review any

factual findings for clear error, giving due deference to the district court’s application of

the Guidelines to the facts.” United States v. Gambino-Zavala, 539 F.3d 1221, 1227-28

(10th Cir. 2008) (quotation and alterations omitted). The government bears the burden of

establishing facts at a sentencing hearing by a preponderance of the evidence. United

States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008). We will not reverse a district

court’s factual finding unless our “review of the entire record leaves us with the definite

and firm conclusion that a mistake has been made.” Id. (quotation omitted).

       At the sentencing hearing, Misti Drager, a special agent with the U.S. Postal

Service, testified about a report from Mike Hurley, a supervisor at the main Pueblo,
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Colorado post office. Hurley reported to Drager that seventy-five to one hundred pieces

of mail had been opened. Drager testified that her investigation verified Hurley’s

account. She also testified that video surveillance showed Valdez tampering with “at

least 39 pieces” of mail. Drager admitted that she received fewer than fifty pieces of

tampered mail from Hurley “because he forwarded on many of those pieces before he . . .

started forwarding them to me.” Further, only thirty-five opened pieces of mail were

submitted into evidence. Nevertheless, Drager clarified that Valdez opened other pieces

of mail beyond these thirty-five, and stated under oath that between the video

surveillance, the letters provided by Hurley, and statements from letter carriers, Valdez

opened “at least 75” pieces of mail.

       Under our deferential clearly erroneous standard of review, this testimony is

sufficient to support the district court’s factual finding that Valdez opened at least fifty

pieces of mail, and thus there were at least fifty victims. See U.S.S.G. § 2B1.1, app.

n.4(C)(i) (intended recipient counts as a victim for Guidelines purposes). Valdez

complains that some of Drager’s testimony was not based on personal knowledge. But

“hearsay statements may be considered at sentencing if they bear some minimal indicia

of reliability.” Cook, 550 F.3d at 1296 (quotation omitted). The statements from letter

carriers relayed by Drager clear “this low hurdle.” Id. Drager verified that Valdez sorted

the pieces of mail that letter carriers reported as opened. Further, a hidden video camera

recorded Valdez opening mail, behavior consistent with the carriers’ reports.

       Finally, Valdez appears to argue in conclusory fashion that the district court
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abused its discretion in denying a motion for a downward variance. However, Valdez

does not advance any reasoned argument in support of this contention in his opening

brief; he simply asserts that the court could have considered a lesser term of probation

“given the factors under § 3553(a).” Valdez has accordingly waived this argument. See

Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (“[C]ursory statements,

without supporting analysis and case law, fail to constitute the kind of briefing that is

necessary to avoid application of the forfeiture doctrine.”).

       For the foregoing reasons, we AFFFIRM.


                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




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