                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 18, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 11-4110
          v.                                             (D. of Utah)
 CRUZ DEJESUS ORTIZ,                            (D.C. No. 09-CR-00080-DAK)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Cruz Dejesus Ortiz pleaded guilty in the District of Utah to possession of

50 grams or more of methamphetamine with intent to distribute, an offense

carrying a mandatory minimum sentence of 10 years’ imprisonment. As part of

his plea agreement, the government agreed to recommend the district court apply

the statutory “safety valve,” which would allow Ortiz to avoid the mandatory



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
minimum. See 18 U.S.C. § 3553(f). The presentence report (PSR), however,

found Ortiz to be ineligible for safety-valve relief because he was an “organizer,

leader, manager, or supervisor in any criminal activity” involving less than five

participants. See United States Sentencing Guidelines (USSG) § 3B1.1. The

court accepted the findings of the PSR and sentenced Ortiz to the mandatory

minimum. Ortiz appeals his sentence, arguing the district court should have

applied the safety valve.

      Because we find the district court did not clearly err in finding Ortiz was a

leader or supervisor in a drug conspiracy, we AFFIRM the court’s judgment.

                                I. Background

      Most of the facts underlying Ortiz’s conviction are not in dispute. Ortiz

and his nephew, Manuel Higuera, were involved with methamphetamine

distribution in the Ogden, Utah area. Both were arrested in connection with

search warrants executed on two homes in the Ogden area where significant

quantities of methamphetamine and cocaine were found.

      After waiving his Miranda rights, Higuera gave a statement to the police

describing the nature of his relationship with Ortiz. According to the uncontested

police report:

      Cruz would call him on occasion and tell him to get the cocaine and
      package up whatever amount he tells him to. Manuel would then get
      the cocaine from the washer and dryer [where it was hidden] and
      package it and then someone would show up at the house and he


                                        -2-
      would sell drugs to them. Manuel said the money would then go to
      Cruz.

Aplt. Br. at 5–6. The government charged Ortiz with methamphetamine and

cocaine possession with intent to distribute.

      Ortiz and the government arrived at a plea bargain. Ortiz agreed to plead

guilty to possession of 50 grams or more of methamphetamine with intent to

distribute. The government agreed to drop the cocaine charges and to recommend

safety-valve relief, contingent upon Ortiz cooperating with a government

debriefing (which he did prior to sentencing). The plea agreement contained the

following caveats:

      I understand that the Court can make no decision as to what the
      sentence will be until the Presentence Report has been received and
      reviewed by the judge. I further understand that the Court is not
      obligated in any way to follow the recommendation of the
      government concerning sentencing matters. If the Court does not
      follow the government’s recommendation, I know that I will not be
      allowed to withdraw my plea of guilty.
      ...
      Based on information presently known to it, the government believes
      that the defendant may meet the criteria of [the safety valve]. . . . [I]f
      the government does not believe the defendant has fulfilled . . . any .
      . . [safety-valve] requirement by the time of sentencing, it shall be
      free to so advise the Court . . . .

R., Vol. 1 Supp., at 6–7.

      The PSR found Ortiz qualified as “an organizer, leader, manager, or

supervisor in any criminal activity” under USSG § 3B1.1(c). The PSR based this

finding on the police report’s uncontested statement that Ortiz would “tell


                                          -3-
[Higuera] to get the cocaine and package up whatever amount he tells him to.”

The PSR interpreted this statement as meaning Ortiz would “instruct” Higuera —

i.e., give him orders — thus implying a supervisory role. Such a supervisory role

would render Ortiz ineligible for safety-valve relief.

      Ortiz objected to the PSR on the grounds that it mischaracterized his

relationship with Higuera. Ortiz explained that although he and Higuera would

sometimes fill drug orders for each other, there was no hierarchy between the

two, and they would share the profits from each deal. Ortiz argued that Higuera’s

statement that Ortiz would “tell him” what to do was not intended to carry the

meaning that Ortiz instructed or ordered Higuera, but rather that Ortiz merely

advised Higuera in furtherance of their “equal partnership.” R., Vol. 1, at 15.

Thus, Ortiz urged the court to reject the PSR’s role-related findings and instead

apply the safety valve as the plea agreement called for.

      At Ortiz’s sentencing hearing, Ortiz reiterated his objections. The court

asked for the government’s view of the correct disposition. The government

responded:

      It was contemplated when we put together the plea agreement that
      this defendant may qualify for safety valve. So we did put that in the
      plea agreement. However, when the pre-sentence report came out, it
      talked about how Mr. Cruz would call Manuel Higuera and ask him
      to get drugs, and that that was, in fact, supervising. And I couldn’t
      disagree with that. So we filed a non-objection to the pre-sentence
      report based on that.




                                         -4-
R., Vol. 2, at 10. Ortiz, in response, pointed out that all the information in the

PSR was known to the government at the time of the plea agreement. See R., Vol.

2, at 13. Ortiz also testified personally that his relationship to Higuera was not

supervisory in nature, and that they would share the profits from their sales. See

id. at 14–15.

      After hearing the arguments, the court found Ortiz ineligible for safety-

valve relief. The court reasoned: “[I]t doesn’t take much under these guidelines

to be a leader or organizer. 1 You give a few directions, and there you have it. So

I think that on the record I have in front of me, that he probably does qualify for

that.” Id. at 17. The court then sentenced Ortiz to the mandatory minimum of

120 months’ imprisonment.

                                  II. Discussion

      Ortiz claims the district court erred in denying him safety-valve relief. He

argues the district court’s factual findings regarding his role were without support

in the record, and he urges us to vacate his sentence and remand with instructions

to apply the safety valve.




      1
         While this comment did not literally encompass the “manager” or
“supervisor” roles enumerated in the Guidelines, the PSR and the context of the
sentencing hearing make clear that the court was referring to the § 3B1.1(c)
enhancement generally. As Ortiz acknowledges, “the district court relied on
either the ‘leader’ role or the ‘supervisor’ role to enhance Appellant’s sentence.”
Aplt. Br. at 14.

                                          -5-
      We pause to note that Ortiz does not argue his sentence should be vacated

based on the government’s apparent change in position between the time the plea

agreement was executed and the time of sentencing. To the contrary, Ortiz

explicitly states he “is not seeking remand on the government’s breach or to

withdraw his plea because it would be a futile exercise.” Aplt. Br. at 4.

Accordingly, we will not consider whether the government’s actions below might

justify a remand.

      Whether the defendant acted as a supervisor for guidelines purposes is an

issue of fact we review for clear error. United States v. Snow, 663 F.3d 1156,

1162 (10th Cir. 2011), cert. denied, 182 L. Ed. 2d 219 (2012). Under this

standard, “[w]e will not disturb the court’s factual findings unless they are

without support in the record, or unless after reviewing all the evidence we are

left with the definite and firm conviction that a mistake has been made.” United

States v. Swanson, 360 F.3d 1155, 1165–66 (10th Cir. 2004) (quoting United

States v. Burridge, 191 F.3d 1297, 1301 (10th Cir. 1999)). A defendant need not

be a drug kingpin to qualify as a supervisor for guidelines purposes; rather, he

“‘needs merely to give some form of direction or supervision to someone

subordinate in the criminal activity for which the sentence is given.’” United

States v. Ivory, 532 F.3d 1095, 1104–05 (10th Cir. 2008) (quoting United States v.

Backas, 901 F.2d 1528, 1530 (10th Cir. 1990)).




                                         -6-
      Here, the evidence regarding whether Ortiz was a supervisor was

conflicting. In support of that finding was Higuera’s statement to the police,

which indicated the following facts: (1) customers would place drug orders with

Ortiz; (2) Ortiz would “tell” Higuera to package the drugs; (3) customers would

pick up the orders from Higuera; and (4) the proceeds would “go to” Ortiz. One

can fairly infer from these facts that Ortiz was the primary manager of the

transactions, and Higuera played a subordinate role. This inference flows not

only from the fact that Ortiz told Higuera what to do, but also from Ortiz’s

control of the terms of the deal and the proceeds. In addition, Higuera’s

statement indicated he knew about some, but not all, of Ortiz’s drug stashes,

suggesting Higuera’s involvement was less extensive than Ortiz’s.

      Weighing against the finding of Ortiz’s supervisory role is his testimony at

sentencing that “[w]ith me, there was no organization, nor was there any manager

of anyone. With regard to the drugs, if I didn’t have any and Manuel did, then we

would get them from one another. And as you know, one always shares profit,

what we would get from it.” R., Vol. 2, at 14–15. This testimony, if believed,

would tend to suggest Ortiz and Higuera were roughly equal operators, and that

Ortiz did not hold a supervisory role. Of course, this testimony was self-serving

and subject to the court’s credibility determination.

      It is not our role, on clear-error review, to second-guess the district court’s

weighing of the evidence and assessments of credibility. It is enough for us to

                                         -7-
say that the district court’s finding had support in the record. Having no definite

and firm conviction that the district court erred, we must therefore uphold its

finding that Ortiz was an “organizer, leader, manager, or supervisor” under USSG

§ 3B1.1(c).

                                III. Conclusion

      Because the district court did not clearly err in finding the safety valve

inapplicable, we AFFIRM the court’s judgment. 2

                                       ENTERED FOR THE COURT,

                                       Timothy M. Tymkovich
                                       Circuit Judge




      2
          This court grants Appellee’s Motion to Correct Appellee’s Brief.

                                         -8-
