                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 28 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                     No. No. 02-5185
 v.                                           (Northern District of Oklahoma)
                                                  (D.C. No. CR-01-4-C)
 NOE ROSALES,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, McWILLIAMS, and O’BRIEN, Circuit Judges.


I.    INTRODUCTION

      Appellant-defendant Rosales was indicted for the unlawful distribution of

methamphetamine and cocaine. He pleaded guilty pursuant to a plea agreement

with the government. At sentencing, the district court set Rosales’ base offense

level at 34 under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1


      *
       This order and judgment is not binding precedent, except under the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. 36.3.
because Rosales’ offense involved more than 1.5 kilograms but less than 5

kilograms of methamphetamine. Included within that calculation were 907 grams

of methamphetamine that Rosales authorized a confidential informant (“CI”) to

sell. The district court imposed a two-level upward adjustment to Rosales’

offense level, ruling that he was an organizer or leader under U.S.S.G. § 3B1.1(c).

The district court did not make any factual findings to support this upward

adjustment. The district court refused to make a downward adjustment for being

a minor participant under U.S.S.G. § 3B1.2, but again failed to make factual

findings on the record to support its conclusion. In addition, the district court

denied Rosales a separate evidentiary hearing to determine his eligibility for a

downward adjustment under U.S.S.G. § 2D1.1(b)(6)’s safety valve provision. The

district court also refused to depart downward pursuant to U.S.S.G. § 5K1.1(a)(4)

because it concluded that Rosales was not in danger of retaliation. Rosales

appeals.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a)(2), this court: (1) affirms the district court’s inclusion of 907 grams of

methamphetamine in the calculation of Rosales’ base offense level under U.S.S.G.

§ 2D1.1; (2) remands to the district court for specific factual findings to support

its conclusion that Rosales is an organizer or leader under U.S.S.G. § 3B1.1; (3)

affirms the district court’s denial of an evidentiary hearing on the applicability of


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the safety valve; (4) affirms the district court’s denial of Rosales’ motion for a

downward adjustment for being a minor participant under U.S.S.G. § 3B1.2; and

(5) dismisses Rosales’ appeal of the district court’s refusal to depart downward

from the sentencing guidelines pursuant to U.S.S.G. § 5K1.1(a)(4), because it

lacks jurisdiction to review this claim.

II.   BACKGROUND

      Noe Rosales was part of a drug conspiracy operating in California, Utah,

and Oklahoma which involved more than five individuals. The conspiracy

operated from at least March 1996 to February 2001, although Rosales only

pleaded guilty to participating in the conspiracy from December 2000 onward.

Evidence in the record indicates that Rosales was second-in-command of the drug

conspiracy, under his father’s leadership. Although in at least one instance

Rosales had to seek his father’s final authorization for pricing, Rosales generally

set prices for the drugs, directed subordinates, and negotiated with customers.

      In February 2001, Rosales personally authorized the sale of two pounds of

methamphetamine in a recorded telephone conversation with a CI. Prior to that,

Rosales had negotiated with a Drug Enforcement Agency (“DEA”) undercover

agent and with the CI for the sale of an additional 965.5 grams of

methamphetamine.




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       Rosales was indicted along with his co-conspirators for the unlawful

distribution of methamphetamine and cocaine. Rosales entered into a plea

agreement with the government in which the government stipulated that Rosales

was a minor participant in the conspiracy. The plea agreement makes it clear,

however, that the stipulation is not binding upon the sentencing court. Rosales

pleaded guilty to one count of “Possession of a Controlled Dangerous Substance

with Intent to Distribute” in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

       Rosales’ attorney argued at sentencing that Rosales was in danger of

retaliation because his father cooperated with the government. The attorney

argued that the court should grant Rosales a downward departure because of his

fear of retaliation. The court did not grant the downward departure and sentenced

Rosales to 168 months of imprisonment, 500 hours of drug abuse treatment, three

years of supervised release, and a $5000 fine.



III.   DISCUSSION

       This court reviews the factual findings of a district court regarding

sentencing, including those findings supporting the imposition of upward or

downward adjustments, for clear error. See United States v. Valdez-Arieta, 127

F.3d 1267, 1270 (10th Cir. 1997); United States v. Pedraza, 27 F.3d 1515, 1530

(10th Cir. 1994); United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993). This


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court reviews de novo, but gives due deference to, the district court’s application

of the sentencing guidelines to the facts. United States v. James, 157 F.3d 1218,

1219 (10th Cir. 1998); Valdez-Arieta, 127 F.3d at 1270. This court reviews a

district court’s denial of a defendant’s request for an evidentiary hearing on

sentencing matters for an abuse of discretion. See United States v. Wagner, 994

F.2d 1467, 1473 (10th Cir. 1993).

      A.     Two-level increase for being an Organizer or Leader under

             U.S.S.G. § 3B1.1(C)

      Rosales argues that the district court committed clear error because it failed

to make factual findings on the record when it imposed a two-level increase to

Rosales’ base offense level for being an organizer or leader under U.S.S.G. §

3B1.1. Rosales objected to the pre-sentence report’s (“PSR”) factual findings that

supported its conclusion that he was an organizer or leader. To support a

conclusion that a defendant is an organizer or leader, a district court must make

specific findings on the record which describe the defendant’s exercise of control

or decision-making authority and which provide this court with a clear picture of

the reasoning it employed in sentencing the defendant. United States v. Spears,

197 F.3d 465, 469 (10th Cir. 1999); United States v. Wacker, 72 F.3d 1453, 1477

(10th Cir. 1995). Such findings must be made even if the record overwhelmingly

supports the enhancement. Spears, 197 F.3d at 469. This court must remand the


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case for specific findings when a district court either fails to make specific

findings to support its conclusion that a defendant is an organizer or leader or

merely adopts the disputed factual findings and guideline application in the PSR.

Wacker, 72 F.3d at 1477; Pedraza, 27 F.3d at 1530-31.

      In this case, the district court failed to make factual findings when it

concluded that Rosales was an organizer or leader. Instead, the district court

referred to the PSR and the affidavit of Agent Katz, an undercover DEA agent,

but did not point out the facts within these documents upon which it based its

conclusion that Rosales was a leader or organizer.

      Rosales argues that the record does not provide support for the district

court’s conclusion that he was an organizer or leader. Factors that can support an

upward adjustment for being an organizer or leader include the exercise of

decision-making authority, the nature of participation in the commission of the

offense, the recruitment of accomplices, the claimed right to a larger share of the

fruits of the crime, the degree of participation in planning or organizing the

offense, and the degree of control or authority exercised over others. United

States v. Anderson, 189 F.3d 1201, 1211 (10th Cir. 1999). Evidence in the record

does support a conclusion that some of these factors were present in this case.

Given the district court’s failure to make factual findings, however, this court is

unable to review whether the court committed clear error in concluding that


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Rosales is an organizer or leader within the meaning of U.S.S.G. § 3B1.1. See

United States v. Ivy, 83 F.3d 1266, 1292 (10th Cir. 1996). Therefore, this court

remands this issue to the district court to make specific factual findings to

support its conclusion that Rosales is an organizer or leader under U.S.S.G. §

3B1.1. Id.

      B.     Base offense level predicated upon a finding that the offense

             involved an additional 907 grams of methamphetamine

      Rosales argues that the district court clearly erred in finding that his

offense involved an additional 907 grams of methamphetamine, and thereby erred

in increasing his base offense level under U.S.S.G. § 2D1.1. Rosales contends

that the affidavit upon which the district court based this finding was

uncorroborated hearsay without sufficient indicia of reliability. A district court

can rely on hearsay in a sentencing proceeding. Fed. R. Evid. 1101(d)(3). Such

hearsay must, however, bear adequate indicia of reliability. U.S.S.G. § 6A1.3(a);

Ortiz, 993 F.2d at 207. Corroborating evidence in the record may give the

hearsay statements adequate indicia of reliability. Ortiz, 993 F.2d at 207.

      In this case, the district court based its finding that Rosales’ offense

involved an additional 907 grams of methamphetamine on the affidavit of DEA

Agent Katz. This court agrees with the government that Agent Katz’s affidavit

contains sufficient indicia of reliability to be a proper basis for the district court’s


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factual finding that Rosales’ offense involved an additional 907 grams of

methamphetamine. Agent Katz is an experienced law enforcement officer who

personally spoke to Rosales about the drugs and purchased the drugs from the

enterprise. Rosales authorized the CI to sell 907 grams of methamphetamine in a

recorded telephone conversation. This recorded telephone conversation, the

transcripts of which were available to the district court at sentencing, corroborates

Katz’s affidavit with respect to the quantity of drugs involved in the offense. See

Ortiz, 993 F.2d at 207-08. Thus, Katz’s affidavit had sufficient indicia of

reliability and the district court’s factual finding that Rosales’ offense involved an

additional 907 grams of methamphetamine is not clearly erroneous. This court

affirms the district court’s determination that Rosales’ base offense level is 34

pursuant to U.S.S.G. § 2D1.1.

      C.     Failure to decrease base offense level for being a minor

             participant under U.S.S.G. § 3B1.2

      Rosales argues that the district court erred in concluding that he was not a

minor participant under U.S.S.G. § 3B1.2 because “there was substantial evidence

in the record indicating that [] Rosales was . . . a minor participant,” including a

stipulation to that effect in his plea agreement. A defendant’s role is minor if his

actions in the enterprise made him substantially less culpable than the average

participant. U.S.S.G. § 3B1.2, application n.3(A). A defendant is not entitled to a


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downward adjustment under U.S.S.G. § 3B1.2, however, when his base offense

level is predicated only on the drugs that he was personally involved in

distributing, as opposed to those distributed by the conspiracy as a whole. See

James, 157 F.3d at 1220. Furthermore, if a defendant has received a lower

offense level by virtue of being convicted of an offense significantly less serious

than warranted by his actual criminal conduct, a reduction for a mitigating role

under § 3B1.2 is not warranted. U.S.S.G. § 3B1.2, application n.3(B).

      In this case, Rosales’ plea agreement eliminated a 20-year minimum

sentence and reduced his maximum sentence from life to 20 years. Because this

fact precludes Rosales’ qualification for a downward adjustment as a minor

participant, this court affirms the district court’s denial of Rosales’ motion for a

downward adjustment for being a minor participant under U.S.S.G. § 3B1.2. 1




      1
        The district court failed to make any factual findings to support its
conclusion that Rosales was not a minor participant in the conspiracy. This court,
however, merely relies on facts that demonstrate that Rosales does not qualify for
an adjustment for being a minor participant in the first place. This court therefore
need not rely upon a factual finding concerning the comparative quantity and
gravity of Rosales’ conspiratorial action. See U.S.S.G. § 3B1.2, application
n.3(A). The district court’s failure to make the requisite factual findings to
support a substantive conclusion that Rosales’ actions rendered him something
other than a minor participant is therefore irrelevant to this court’s disposition of
this issue.

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      D.     Failure to grant an evidentiary hearing to determine eligibility

             for a decrease in base offense level pursuant to U.S.S.G. §

             2D1.1(b)(6)

      Rosales argues that the district court abused its discretion by failing to

grant the evidentiary hearing he requested to determine his eligibility for a

downward adjustment pursuant to the safety valve criteria of U.S.S.G. § 2D1.1

(b)(6). The sentencing guidelines state that the parties must be given an adequate

opportunity to present information to the court regarding disputed factors that are

important to sentencing. U.S.S.G. § 6A1.3. An opportunity to present

information is adequate in many cases if the defendant has some opportunity to be

heard, even if only by means of statements of counsel or affidavits of witnesses.

See United States v. Rutter, 897 F.2d 1558, 1566 (10th Cir. 1990). An evidentiary

hearing may sometimes be necessary to resolve a dispute. Id. It is within the

sentencing court’s discretion to determine the appropriate procedure in light of

the nature of the dispute. See id.

      In this case, Rosales had the opportunity to present evidence under

U.S.S.G. § 2D1.1 (b)(6) at sentencing, and he chose not to do so. In addition,

Rosales’ counsel made the safety valve arguments to the district court in Rosales’

Sentencing Memorandum. Therefore, Rosales had an adequate opportunity to

present information to the district court regarding the disputed factors that are


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important to sentencing under the safety valve provision. See Rutter, 897 F.2d at

1566. 2

          Because Rosales had an adequate opportunity at sentencing to present

evidence regarding the relevant disputed factors and chose not to, this court holds

that the district court did not abuse its discretion when it denied Rosales a

separate evidentiary hearing to determine his eligibility for a downward

adjustment pursuant to U.S.S.G. § 2D1.1 (b)(6). See Rutter, 897 F.2d at 1566.

This court therefore affirms the district court’s denial of the evidentiary hearing.

          E.    Downward departure based on fear of retaliation

          Rosales argues that the district court committed clear error when it found

that he was not in danger of retaliation and thus concluded that he is ineligible for

a downward departure pursuant to U.S.S.G. § 5K1.1(a)(4). This court does not

have jurisdiction to review a district court’s refusal to depart from the sentencing

guidelines, either downward or upward, unless the court refused to depart because

it interpreted the guidelines to deprive it of the authority to do so. United States

v. Busekros, 264 F.3d 1158, 1159 (10th Cir. 2001). Jurisdiction to review is not

conferred on this court by a district court’s mere statement that it does not have


       In addition, the district court concluded that Rosales was a leader or
          2

organizer. Because the district court did not make the requisite factual findings
when it concluded that Rosales was a leader or organizer, however, this court
does not rely on this determination in concluding that the district court did not
abuse its discretion when it denied Rosales an evidentiary hearing.

                                           -11-
the authority to depart from the guidelines based on the defendant’s specific

circumstances. United States v. Miranda-Ramirez, 309 F.3d 1255, 1258 (10th

Cir. 2002).

      In this case, nothing in the record indicates that the district court

interpreted the guidelines to deprive it of the authority to depart pursuant to

U.S.S.G. § 5K1.1(a)(4). In fact, the district court denied the downward departure

based on Rosales’ particular circumstances. This court therefore dismisses

Rosales’ appeal of the district court’s refusal to depart from the guidelines

pursuant to U.S.S.G. § 5K1.1(a)(4) for a lack of jurisdiction. Busekros, 264 F.3d

at 1159.

IV. CONCLUSION

      For the foregoing reasons, this court AFFIRMS the district court’s

sentencing order in part, REMANDS this case to the district court for it to make

specific factual findings on the organizer or leader issue, and DISMISSES

Rosales’ appeal under U.S.S.G. § 5K1.1(a)(4) for lack of jurisdiction.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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