                                                                             FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 14, 2011
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 09-3346
                                             (D.C. No. 2:08-CR-20106-KHV-1)
    CARLOS GUADALUPE                                     (D. Kan.)
    BELTRAN-AGUILAR,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.


         Carlos Guadalupe Beltran-Aguilar (“Aguilar”) appeals his 360-month

sentence for possessing fifty grams or more of methamphetamine with intent to

distribute, conspiring to distribute and to possess fifty grams or more of

methamphetamine with intent to distribute, and maintaining a residence for those

purposes. He argues that the district court erred procedurally, by applying an


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
importation enhancement to his base offense level, and substantively, by imposing

an unreasonably long sentence. We affirm.

                                  B ACKGROUND

      Jose Viera, a Mexican national in this country illegally, was a

methamphetamine dealer in Kansas City, Kansas. In early 2008, Viera and his

girlfriend, Perla Flores, moved into a house on Metropolitan Avenue. They used

the house to store and cut “half pound” portions of methamphetamine obtained

from Mexican nationals Jose Antonio Beltran-Salazar (“Salazar”) and Roberto

Quinonez-Quintero (“Quintero”). R., Vol. 2 at 923. Appellant Aguilar was one

of Quintero’s assistants and a lawful permanent U.S. resident.

      According to Flores, in April of 2008, Salazar and Quintero’s U.S. supply

of methamphetamine ran out, prompting Viera, Salazar, and Quintero to travel to

Mexico for a “meeting.” Id. at 926-27, 929-30. Flores was apparently unfamiliar

with Aguilar at this time. But border patrol records show that Aguilar also

crossed into Mexico in April, and that he re-entered the U.S. through Arizona on

June 30, driving a vehicle registered to a woman in Omaha, Nebraska. The

vehicle was not searched. Several days later, Viera, Quintero, and another one of

Quintero’s assistants, Jose Torres-Garcia (“Garcia”), attempted to enter the U.S.

at other locations, but they were apprehended and returned to Mexico. No drugs

were found in their possession. Eventually, they succeeded in entering the U.S.,

and they traveled to Omaha.

                                        -2-
      On July 18, 2008, Viera, Quintero, Aguilar, and Garcia arrived at the

Metropolitan Avenue residence with four to six pounds of methamphetamine.

They spent the next two weeks in the home, cutting and distributing the drug.

Flores testified that Aguilar “was always there with them” providing assistance.

Id. at 991.

      In August 2008, Aguilar moved into a residence on North 50th Street in

Kansas City. On August 27, 2008, police officers conducting surveillance

observed Aguilar leave that residence in a vehicle with Nebraska license plates

and proceed to a store, where he bought a box of laundry detergent. Aguilar then

returned to the home. After about twenty-five minutes, Aguilar emerged with

Quintero, Salazar, and Garcia. Aguilar and Garcia got into a black Honda and

followed Quintero and Salazar, who were driving the Nebraska-licensed vehicle.

Both vehicles eventually proceeded north on the interstate toward Nebraska.

      After about an hour, a Missouri state trooper stopped the Honda, which was

being driven by Aguilar, for speeding. When the trooper walked up to the

passenger compartment, he noticed multiple air fresheners and two prepaid cell

phones, and that both Aguilar and Garcia were wearing bracelets depicting Jesus

Malverde, “the patron saint of . . . drug smugglers.” Id. at 587. A consensual

search of the vehicle yielded the box of laundry detergent, inside of which were

two pounds of 69% pure methamphetamine wrapped in cellophane. Aguilar and

Garcia were arrested. A search of Aguilar’s wallet revealed a wire transfer

                                        -3-
receipt from earlier in the day indicating that money had been sent to Salazar’s

address in Mexico. Further, a trooper scrolled through the numbers in one of the

cell phones and recognized international phone numbers. The trooper testified

that in his experience, methamphetamine has an international source—“Mexico.”

Id. at 598. An agent with the Bureau of Immigrations and Customs Enforcement

(ICE) similarly testified that “the majority of the time, [methamphetamine] is

brought in from Mexico” because the precursor ingredients are more accessible

there. Id. at 172-73.

      After being arrested, Aguilar consented to a search of the North 50th Street

residence, and he gave officers the keys. Inside, they found $18,000 in cash on a

closet shelf, along with a Western Union receipt bearing a fake name used by

Quintero for a money transfer to Mexico. Also found in the house were a digital

scale, a drug ledger, cellophane, methamphetamine cutting agent, and shrines to

Santa Muerte (Saint Death) and Jesus Malverde. A 9mm handgun was found in

Aguilar’s bedroom.

      Several months later, Viera and Flores were arrested. A search of their

residence revealed a drug ledger, bundles of cash, and several receipts bearing a

fake name used by Viera to wire money to Mexico.

      Aguilar was tried by a jury and convicted on three counts: (1) possessing

more than fifty grams of methamphetamine with intent to distribute;

(2) conspiring to distribute and to possess more than fifty grams of

                                         -4-
methamphetamine with intent to distribute; and (3) managing or controlling a

place to distribute or store methamphetamine. The U.S. Probation Office

prepared a presentence report (PSR), setting the base offense level at thirty-six,

and then applying a two-level enhancement for the gun found in Aguilar’s

bedroom. Both the government and Aguilar objected and filed memoranda. The

government argued that the amount of methamphetamine at issue in the

conspiracy required a base offense level of thirty-eight, and that in addition to the

gun enhancement, there should have been a two-level enhancement for importing

methamphetamine into the U.S. Aguilar contested those points and argued that he

was entitled to a four-level downward adjustment as a minimal participant in the

conspiracy, and that the 18 U.S.C. § 3553(a) factors warranted a lenient sentence.

      At the sentencing hearing, the district court determined that the amount of

methamphetamine exceeded 1.5 kilograms, thereby providing a base offense level

of thirty-eight. See U.S.S.G. § 2D1.1(c)(1). The court also applied the gun and

importation enhancements, reaching a Guidelines sentence of 360 months to life

imprisonment on the trafficking and conspiracy counts, and 240 months to life on

the drug-residence count. As to the importation enhancement, the court

explained: “the evidence is overwhelming in this case that this was a Mexican-

based drug cartel and [Aguilar] had to know that the methamphetamine in this

case originated from Mexico.” R., Vol. 2 at 1175-76.




                                          -5-
      The court also heard argument as to whether Aguilar was entitled to a

minimal-participant adjustment and to a downward variance based on the

§ 3553(a) factors. The court found that while Aguilar was not “a minor or

minimal player in the conspiracy,” id. at 1190, it could consider his relative

culpability “in deciding where within the guideline range [he] should be

sentenced,” id. at 1191. Regarding Aguilar’s request for a guidelines variance

based on his youth, recent fatherhood, and his claim that “[he] was not aware of

the activities that [his friends] were engaged in,” id. at 1195, the district court

imposed a 360-month sentence, explaining:

      I realize this is a long sentence and I realize that I have discretion to
      give you a lower sentence. In declining to do that, I am satisfied not
      only by the reasons the government has stated, [1] but what I see is an
      utter lack of acceptance of responsibility and . . . false
      minimalization of your role in this offense and also the effort to
      somehow lay this off on your friends which, frankly, is pretty
      offensive to me . . . . I think it’s obvious that you were a knowing
      and voluntary and maybe even eager participant in everything that
      you did.

Id. at 1210.




1
      In support of a sentence within the Guidelines range, the government
argued that Aguilar clearly knew what was transpiring, given that he controlled a
house from which methamphetamine was stored and distributed, had shrines and a
bracelet associated with narcotics trafficking, and was involved in the distribution
of “enough methamphetamine to affect hundreds of users,” id. at 1204. Further,
the government asserted that Aguilar “chose to leave his son to engage in this
drug trafficking and only stopped when he got arrested.” Id. at 1206.

                                           -6-
                                    D ISCUSSION

      We review a sentence for reasonableness, applying an “abuse-of-discretion

standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

Reasonableness review has both procedural and substantive components. United

States v. Martinez, 610 F.3d 1216, 1223 (10th Cir.), cert. denied, 131 S. Ct. 543

(2010). “Review for procedural reasonableness focuses on whether the district

court committed any error in calculating or explaining the sentence.” United

States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). “Review for

substantive reasonableness focuses on whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” Id. (quotation omitted).

             I. Procedural Reasonableness - Importation Enhancement

      So long as a defendant is not a minor or minimal participant in the criminal

activity, the Sentencing Guidelines provide a two-level enhancement if “the

offense involved the importation of . . . methamphetamine.” U.S.S.G.

§ 2D1.1(b)(4). Aguilar argues that there was insufficient evidence to establish

that the methamphetamine in this case was imported from Mexico. He

acknowledges, however, that the government must prove a sentencing

enhancement by only a preponderance of the evidence. United States v.

Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008).




                                         -7-
      Here, the evidence indicated that the methamphetamine possessed and

distributed by the conspirators originated in Mexico and that Aguilar would have

known of that fact. 2 Specifically, Flores testified that Salazar, Quintero, and

Viera traveled to Mexico in April 2008 after exhausting the methamphetamine

they had in this country. That same month, border patrol records indicate that

Aguilar also crossed into Mexico. While in Mexico, Salazar, Quintero, and Viera

had a meeting to discuss continuing their methamphetamine operation. After

being in Mexico for two months, Aguilar and the others began their attempts to

re-enter the U.S. Aguilar, the only one in the group who was a lawful permanent

resident, entered separately from his co-conspirators. The clear import of that

separate entry was to avoid the suspicion that would have been aroused by coming

across with undocumented Mexican nationals. Further, when Quintero, Viera,

and Garcia were apprehended attempting to cross the border, they were not

carrying any methamphetamine. Yet, when everyone arrived at the Metropolitan

Avenue residence after a stop in Nebraska, they had four to six pounds of

methamphetamine. It is fairly obvious that Aguilar drove that methamphetamine


2
       The plain language of § 2D1.1(b)(4) appears to impose a scienter
requirement only when “the offense involved . . . the manufacture of . . .
methamphetamine from listed chemicals that the defendant knew were imported
unlawfully.” When the offense is the importation of methamphetamine, the
Guideline is silent regarding knowledge of the drug’s foreign origination. In any
event, we need not resolve this issue because the preponderance of the evidence
in this case establishes that Aguilar would have known that he and his co-
conspirators were operating with methamphetamine imported from Mexico.

                                         -8-
across the border. Indeed, there was no methamphetamine-manufacturing

equipment at either of the Kansas City residences, there were multiple

wire-transfer receipts showing funds sent to Mexico, and both a state trooper and

an ICE agent associated with this case testified about their general experience

with methamphetamine coming from Mexico.

      Aguilar argues, however, that it is just as likely that the methamphetamine

originated in Nebraska. But if that were true, the conspirators would not have had

to travel to Mexico when they ran out of methamphetamine in April. Further,

when Aguilar was arrested, he was transporting methamphetamine to Nebraska.

If Nebraska were the source, they would not have had to transport

methamphetamine there.

      Aguilar asserts that “Flores[ ] testified that the supply of drugs at issue in

the present conspiracy originated in Nebraska.” Opening Br. at 15. But he

misinterprets the record. Flores testified that Viera said they met Salazar in

Nebraska at a place “where he had the drug meth.” R., Vol. 2 at 934. She did

not, however, testify as to where the methamphetamine originated. Rather, it

appears she was attempting to describe the place from which Salazar operated in

Nebraska. In any event, her confusing testimony on this point does not detract

from the other evidence in this case showing Mexico as the origination source.

      Despite attempting to rely on Flores’s testimony, Aguilar suggests that

little weight can be given to her testimony insofar as it indicates a Mexican

                                          -9-
origination because she erroneously believed that Aguilar was caught trying to

cross the border with the others. That erroneous belief as to a minor detail hardly

impugns her testimony, though. The basis of her confusion could easily be

explained by the fact that she had been told the conspirators all met near the

Arizona border checkpoint and were planning on crossing together. Thus, when

the conspirators who eventually crossed together were caught, it would not be

unreasonable for her to mistakenly believe that Aguilar was among them.

      We conclude that a preponderance of the evidence showed that the

methamphetamine in this case came from Mexico, and that Aguilar, as the

individual who drove it across the border, arrived with it in Kansas City, and

assisted in preparing it for distribution, knew of its foreign origination. Thus, the

district court properly applied the importation enhancement to Aguilar’s

base-offense level.

               II. Substantive Reasonableness - Downward Variance

      A sentence within a properly calculated Guidelines range is presumptively

reasonable. United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010). The

defendant may rebut the presumption “by showing that his sentence is

unreasonable in light of the sentencing factors delineated in 18 U.S.C. § 3553(a).”

United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008). In

determining reasonableness, however, “we must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the [sentence

                                         -10-
imposed].” United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165 (10th Cir.

2010) (quotations omitted).

      Aguilar contends that his 360-month sentence is unreasonable because he

was a mere drug courier, with limited involvement in the conspiracy. Drug

couriers, however, “are an indispensable component of drug dealing networks.”

United States v. Martinez, 512 F.3d 1268, 1276 (10th Cir. 2008) (quotation

omitted). And there was evidence that Aguilar was more than a drug courier and

had significant involvement in the conspiracy. In this regard, Flores testified that

while Aguilar lived in her home, he was always with the co-conspirators, giving

them assistance in preparing the methamphetamine for distribution. And when

Aguilar moved into the North 50 Street residence, he was the one who bought the

laundry detergent box used to hide the two pounds of methamphetamine later

found by state troopers. Also, after being arrested, a wire transfer receipt for

money sent earlier that day to Mexico was found in his wallet. Further, a gun was

found in his bedroom, and there were narcotics-oriented shrines throughout the

residence. Consequently, like the district court, we are not persuaded by

Aguilar’s assertion that he played only a limited role in the conspiracy.

Nevertheless, we note that the district court considered the extent of his

involvement in selecting a sentence at the bottom of the Guidelines range.

      Finally, Aguilar argues that his 360-month sentence is unreasonable

because it exceeds the sentences given to Flores (30 months), Garcia (120

                                         -11-
months), and Viera (324 months). Under 18 U.S.C. § 3553(a)(6), sentencing

courts must “avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.” But “disparate

sentences are allowed where the disparity is explicable by the facts on the

record.” United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006) (quotation

omitted). Further, a co-conspirator’s “decision to accept responsibility and assist

the government does not create an unwarranted disparity under § 3553(a)(6).”

United States v. Haley, 529 F.3d 1308, 1312 (10th Cir. 2008).

      The disparity between Aguilar’s sentence and Flores’s sentence is readily

explained by the fact that she pleaded guilty and testified for the government.

Garcia and Viera also pleaded guilty and were sentenced accordingly. The fact

that Aguilar’s sentence more closely resembles Viera’s rather than Garcia’s

reflects Aguilar’s and Garcia’s disparate levels of involvement in the conspiracy.

      The district court did not abuse its discretion in refusing to grant Aguilar a

downward variance and sentencing him within the Guidelines range.




                                         -12-
                                 C ONCLUSION

      The judgment of the district court is AFFIRMED. 3

                                                 Entered for the Court



                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




3
       Aguilar has requested permission to file a pro se supplemental appellate
brief. But he has been represented by counsel throughout this appeal.
Consequently, we “invok[e] our policy of addressing on direct appeal only those
issues raised by counsel,” and we do not address the issues raised in Aguilar’s
proffered pro se brief. United States v. McDermott, 64 F.3d 1448, 1450 n.1
(10th Cir. 1995). Accordingly, Aguilar’s motion to file a pro se supplemental
brief is DENIED.

                                      -13-
