                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       May 28, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-4241
          v.                                               (D. Utah)
 ELEUTERIO GUTIERREZ,                            (D.C. No. 06-CR-119-PGC)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in 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.

      Defendant and appellant, Eleuterio Gutierrez, pled guilty to one count of

selling of citizenship papers, in violation of 18 U.S.C. § 1427, and two counts of

aggravated identity theft, in violation of 18 U.S.C.§ 1028A. He was sentenced to


      *
        This order and judgment is not binding precedent except under the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.
a term of thirty-six months and a day. Gutierrez appeals his sentence, which we

affirm.



                                 BACKGROUND

      The following facts are as stated in the United States Probation Office

Presentence Report (“PSR”), prepared in connection with the imposition of a

sentence in this case, as well as Gutierrez’s statement made in advance of his

guilty plea. On November 7, 2006, a confidential informant (“CI”) contacted

Gutierrez’s co-defendant, Veronica Carrillo, and arranged to purchase two United

States birth certificates. The meeting, at Carrillo’s Logan, Utah, residence, was

surreptitiously recorded. At some point in the meeting, Carrillo stated that she

had sold over 300 United States birth certificates. Carrillo told the CI that she

“would call the CI in a week or so when she received the birth certificates and

social security cards from her source in Texas.” Statement by Def. in Advance of

Plea at 5, R. Vol. Supp. IV.

      Approximately one week later, on November 14, 2006, United States Postal

Inspectors in Salt Lake City intercepted a U.S.P.S. Express Mail envelope from El

Paso, Texas, addressed to Carrillo at her house in Logan. Law enforcement

authorities obtained a search warrant, opened the envelope and discovered another

envelope inside. This envelope was addressed to Carrillo, with a return address

for Gutierrez in El Paso, Texas. The envelope contained two Illinois birth

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certificates and two social security cards. The authorities resealed the documents

back in the envelope and returned the envelope to circulation for delivery to

Logan, Utah.

      The following day, the CI contacted law enforcement agents and stated that

Carrillo had just contacted the CI to let the CI know that Carrillo had received a

male birth certificate and it was available for pick up. Agents thereafter observed

the CI meet with Carrillo at Carrillo’s residence. The CI received a male Illinois

birth certificate and a social security card. The CI then provided Carrillo with

$300 in order to obtain an additional birth certificate.

      On November 22, 2006, a similar series of transactions occurred, and

Carrillo received another birth certificate (this one female) and accompanying

social security card in an envelope from Texas with a return address of Gutierrez.

Carrillo contacted the CI and stated that she had received the female birth

certificate. On November 24, the CI went to Carrillo’s house and, after paying an

additional $300, was given the birth certificate and social security card. A similar

series of transactions occurred on November 28, with authorities intercepting a

third express mail envelope from Gutierrez in El Paso and addressed to Carrillo,

inside of which were two birth certificates and two social security cards.

      Carrillo was arrested on December 12, 2006. Law enforcement authorities

found a ledger at her house, which detailed twenty-three transactions in which

individuals purchased or ordered identity documents from Carrillo. The ledger

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included information about prices, contact information, whether the requested

identity documents were for a man or a woman, and any age parameters.

Additionally, agents “found in Ms. Carrillo’s house records of money transfers

from Ms. Carrillo to Gutierrez, which correspond to orders for documents placed

with Ms. Carrillo.” United States Probation Office Presentence Report (“PSR”) at

¶ 12, R. Vol. III.

       On December 22, 2006, Gutierrez was arrested when he entered the United

States in El Paso, Texas. Gutierrez apparently admitted selling documents to

Carrillo.

       As indicated, Gutierrez pled guilty and a PSR was prepared in connection

with sentencing. The PSR calculated that, pursuant to United States Sentencing

Commission, Guidelines Manual (“USSG”) § 2L2.1, Gutierrez’s base offense

level was eleven. He received a four-level increase because he had two prior

convictions for felony immigration and naturalization offenses. He received a

further, three-level increase pursuant to USSG § 2L2.1(b)(2)(A) because the

offense involved between six and twenty-four documents. After a reduction for

acceptance of responsibility, Gutierrez’s total adjusted offense level was fifteen.

With a criminal history category of II, Gutierrez’s advisory sentencing Guidelines

range was twenty-one to twenty-seven months. However, because Gutierrez also

pled guilty to two counts of aggravated identify theft, he was faced, pursuant to




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18 U.S.C. § 1028A, with a mandatory two-year sentence to be served

consecutively to his advisory Guidelines sentence.

      Prior to sentencing, Gutierrez filed a written objection to the three-level

upward adjustment for six or more documents under USSG § 2L2.1(b)(2)(A).

The government responded, explaining why it believed the adjustment applied:

             Here, the PSR describes conduct by the defendant which
      demonstrate that he trafficked at least 6 documents. First, in a
      conversation recorded by law enforcement, Carrillo had earlier
      bragged to the CI that she had sold more than 300 birth certificates to
      others in the past. While this statement was possible embellishment
      on Carrillo’s part, it is undisputed that Carrillo sold more than the
      intercepted documents. When agents searched Carrillo’s home
      following her arrest, agents discovered a ledger containing details of
      23 transactions relating to the sale of documents as well as money
      transfer receipts from Carrillo to Gutierrez for the orders placed by
      her. There is no evidence that Carrillo had any other source for the
      documents she sold and, in fact, she told agents that Gutierrez was
      her only source. It is therefore reasonable to conclude that he was
      the source for the documents listed on the ledger particularly when
      Gutierrez’ criminal history is considered, including two prior
      convictions relating to the fraudulent use of immigration-related
      documents. Collectively, this uncharged conduct establishes a
      sufficient basis for the Court to concluded that the defendant has
      participated in the trafficking of at least 6 documents to Carrillo.

Resp. to Sent. Mem. at 5-6, R. Vol. I.

      The court found that the government had met its burden of establishing that

Gutierrez’s conduct involved six or more documents. The court ultimately

reduced Gutierrez’s total offense level to twelve, instead of fifteen, because of

Gutierrez’s intellectual impairments, and imposed a sentence of twelve months

and one day for the document sale conviction and a consecutive term of twenty-

                                         -5-
four months for the aggravated identity theft. Thus, the final sentence was for

thirty-six months and a day.

      Gutierrez appeals, arguing only that there was insufficient proof that the

offense involved six or more documents.



                                  DISCUSSION

      “In reviewing a criminal sentence, we first determine whether the district

court correctly applied the Guidelines to arrive at the applicable sentencing

range.” United States v. Chavez-Calderon, 494 F.3d 1266, 1268 (10 th Cir. 2007).

“In so doing, ‘we review factual findings for clear error and legal determinations

de novo.’” Id. (quoting United States v. Kristl, 437 F.3d 1050, 1054 (10 th Cir.

2006) (per curiam)). “When a defendant objects to a fact in a presentence report,

the government must prove that fact at a sentencing hearing by a preponderance

of the evidence.” United States v. Wilken, 498 F.3d 1160, 1169 (10 th Cir. 2007)

(further quotation omitted). Accordingly, the government had to prove by a

preponderance of the evidence that Gutierrez’s offense involved at least six

documents.

      The district court found the government had met its burden of proof,

relying on the ledger, Carrillo’s statements about the number of documents she

had obtained and Gutierrez being her only source, and because it “really wouldn’t

make any sense to think that somebody would have two different sources of

                                        -6-
documents for an operation like this you just need one source and that source was

the defendant.” Tr. of Sent. Hr’g at 9, R. Vol. II. We agree with the district

court. As the government aptly summarized it, the record reveals the following:

      Government investigators, over the course of two weeks, intercepted
      three Express Mail envelopes containing five birth certificates, which
      envelopes were mailed from Gutierrez in Texas to Carrillo in Utah.
      Gutierrez admitted in his plea agreement that he sold the five birth
      certificates . . . to Carrillo. Carrillo told a confidential informant,
      during a surreptitiously recorded meeting, that she had sold over 300
      birth certificates. During that same meeting, Carrillo told the
      confidential informant, who had placed an order for a birth
      certificate, that the document would come from Carrillo’s source in
      Texas in a week or so. Approximately one week later, an Express
      Mail envelope containing the requested birth certificate was mailed
      from Gutierrez’s El Paso, Texas, address and was received by
      Carrillo in Utah. In addition, Carrillo told a government agent that
      Gutierrez was her supplier. Furthermore, documents showing money
      transfers from Carrillo to Gutierrez, and a ledger detailing 23
      separate transactions, were found in Carrillo’s residence. In light of
      this evidence, the record fully supports the district court’s conclusion
      that Gutierrez’s offense involved at least six documents.

Appellee’s Br. at 12-13. That is sufficient to establish the existence of six or

more documents.



                                  CONCLUSION

      For the foregoing reasons, the sentence is AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge


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