                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          April 19, 2019

                                                                           Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                              Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-1031

 LUCIO IVAN LOZANO,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:15-CR-00360-RM-1)
                       _________________________________

Anna M. Davide, Miami, Florida, for Defendant-Appellant.

Marissa R. Miller, Assistant United States Attorney (Robert C. Troyer, United States
Attorney, with her on the brief), Office of the United States Attorney, Denver, Colorado,
for Plaintiff-Appellee.
                        _________________________________

Before LUCERO, SEYMOUR, and KELLY, Circuit Judges.
                  _________________________________

SEYMOUR, Circuit Judge.
                   _________________________________

      Lucio Lozano was charged with involvement in a multi-year cocaine

trafficking conspiracy between individuals in Mexico and Colorado. In October

2017, Mr. Lozano pled guilty to conspiracy to distribute and possession with intent to

distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(ii)(II).
He was subsequently sentenced to 180 months imprisonment and five years

supervised release. He challenges the district court’s application of two sentencing

enhancements: (1) a two-level guidelines increase for maintaining a premise for the

purpose of distributing a controlled substance, and (2) a three-level aggravated role

enhancement. We affirm.

                                           I.

      In his plea agreement, Mr. Lozano stipulated that the conspiracy involved at

least 50 kilograms but less than 150 kilograms of cocaine. Based on their analysis of

seized notebooks, DEA investigators believed this conspiracy may be responsible for

drug transactions involving over six million dollars and 70 kilograms of cocaine.

Several co-conspirators are discussed throughout the facts stipulated in the plea

agreement but the actors most relevant to the present case are Mr. Keneth Molina-

Villalobos and Mr. Jose Lara-Gallegos. DEA agents determined that these two

individuals were responsible for the conspiracy’s day-to-day operations in Colorado.

Both were in contact with Mr. Lozano about matters such as the currency packaged

and transferred to load drivers, the status of drivers and cocaine, and records of

cocaine sales. Both Mr. Molina-Villalobos and Mr. Lara-Gallegos drove vehicles

that were registered to Mr. Lozano. In addition, the stipulated facts include one

occasion where Mr. Molina-Villalobos called Mr. Lozano immediately as a load left

the Colorado operation, and another occasion where Mr. Lozano texted Mr. Molina-

Villalobos to ask if he had finished his assignment.



                                            2
      The stipulation of facts outlines four specific drug transportation and

distribution ventures relevant to the conspiracy: (1) the “Lucero Loads,” (2) the

“Mota Load,” (3) the “First Neufeld Load,” and (4) the “Second Neufeld Load.”

These facts are consistent with a regular and reoccurring business enterprise

conveying substantial quantities of drugs from Mexico to Colorado. For example,

DEA investigators located approximately fifteen kilograms of cocaine in the “Lucero

load” that they intercepted in August 2014, and Mr. Lucero admitted he had

previously delivered approximately twenty such loads to Colorado, with most of the

cocaine going to Mr. Lozano. When DEA investigators followed this lead, they

learned that Mr. Lozano had rented a house at 9544 Josephine Street in Thornton,

Colorado (“the Josephine house”).

      The DEA set up pole cameras at the Josephine house and conducted routine

surveillance from January to November 2015. During that time, they observed

various activities taking place at the house that appeared to be drug-related. Two of

the ventures detailed in the stipulation of facts explicitly utilized the Josephine house:

the “Mota Load” used the house for a lengthy transaction spanning from January 31

to February 6, 2015, and the “First Neufeld Load” used the house on March 3 and 4,

2015. DEA agents concluded that both transactions used the Josephine house to

unload drugs from couriers’ cars and to fill them with bulk currency. Mr. Molina-

Villalobos confirmed this conclusion in a post-arrest interview, admitting that he

used the Josephine house to “take bricks out of cars [he] received from various

people.” Aplt. App. at 33–34.

                                            3
       Although the lease for the Josephine house was in Mr. Lozano’s name and he

was responsible for paying the utilities, DEA surveillance determined that he did not

live in the house consistently. He lived in Mexico for the first six months of

surveillance, he returned to live in the Josephine house from mid-June to early

November 2015, and he was seen transporting personal items from the house to a

storage unit that November. Mr. Lara-Gallegos lived in the Josephine house during

the periods that Mr. Lozano lived in Mexico. Mr. Lara-Gallegos later moved to 2191

Carrol Court, in Thornton, Colorado. A search warrant was never issued for the

Josephine house and a warranted search of Mr. Lozano’s storage unit uncovered only

personal items. But a March 2016 warrant executed on Mr. Lara-Gallegos’

subsequent residence at 2191 Carrol Court revealed various tools of the trade,

including a kilogram press and a kilogram stamp, money packaging materials, scales,

mixing bowls with white residue, a vacuum sealer, and three notebooks that detailed

a litany of transactions. These notebooks recorded Mr. Lozano as making over

$200,000 from just fourteen individual transactions.

       Mr. Lozano pled guilty but he objected to the two sentencing enhancements

recommended in the plea agreement and presentence report. With respect to the two-

level enhancement for maintaining a premise, Mr. Lozano argued that Mr. Lara-

Gallegos was the individual in control of the Josephine house during the time it was

used for the drug trafficking activity described in the stipulation of facts, that the

house was not used primarily for drug distribution but only as a residence, and that he

allowed his co-conspirator to live in the house not for the purpose of enabling drug

                                             4
activity but because of Mr. Lara-Gallegos’ familial connection to him as well as Mr.

Lara-Gallegos’ undocumented status. The government countered that the stipulated

facts suggest the activity occurring at the house actually exceeded the two specific

ventures outlined. It also argued that the magnitude of the loads being trafficked

through the house showed the large-scale nature of the drug-trafficking activity, and

therefore a constant flow of people through the house was not required.

      With respect to the three-level aggravated role enhancement, Mr. Lozano

argued that his role as a middleman in the conspiracy did not compel the conclusion

that he managed any of his co-conspirators, that his provision of means to Mr.

Molina-Villalobos and Mr. Lara-Gallegos was not because of a managerial role over

them but because of their undocumented status, and that he operated within his own

“box” in the conspiracy and only exercised control relative to that restricted box. In

response, the government emphasized Mr. Lozano’s instruction to and the

accountability of Mr. Molina-Villalobos and Mr. Lara-Gallegos, and his superior

knowledge of both the south and north end of the trafficking activity. The

government further argued that Mr. Lozano provided the means to his co-conspirators

to enable their drug-related activities, and that he regularly received payouts

exceeding those of his co-conspirators because of his oversight and control over the

Colorado drug-trafficking activities.

      At sentencing, the district court overruled both objections and increased the

defendant’s offense level accordingly. Mr. Lozano appeals, contending the district

court clearly erred in the application of both sentencing enhancements. We disagree.

                                           5
                                           II.

       The district court’s factual findings are reviewed for clear error, while its legal

conclusions are reviewed de novo. United States v. Eaton, 260 F.3d 1232, 1237 (10th

Cir. 2001). Factual findings are clearly erroneous only if they are without factual

support in the record or if this court, considering all the evidence, is left with a

definite and firm conviction that a mistake has been made. United States v. Zar, 790

F.3d 1036, 1046 (10th Cir. 2015). The evidence is viewed in the light most favorable

to the government. Id.

       If the district court's account of the evidence is plausible in light of the record
       viewed in its entirety, the court of appeals may not reverse it even though
       convinced that had it been sitting as the trier of fact, it would have weighed the
       evidence differently. Where there are two permissible views of the evidence,
       the factfinder's choice between them cannot be clearly erroneous.

Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985). We afford “great

deference to the district court’s application of the Guidelines to the facts.” Eaton,

260 F.3d at 1237.

   A. The “Stash-House” Enhancement

       Mr. Lozano first argues that the district court erred in applying a two-level

sentencing enhancement under U.S.S.G. § 2D1.1(b)(12), which increases a

defendant’s base offense level two points if he “maintained a premise for the purpose

of manufacturing or distributing a controlled substance.” The government must

prove this by a preponderance of the evidence. See, e.g., United States v. Gambino-

Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008). Both parties agree that the evidence

here concerns only drug distribution (not manufacturing). The commentary to §

                                             6
2D1.1(b)(12), which is authoritative, explains that “distributing a controlled

substance need not be the sole purpose for which the premises was maintained, but

must be one of the defendant’s primary or principal uses for the premises, rather than

one of the defendant’s incidental or collateral uses for the premises.” § 2D1.1, cmt.

n.17; see also United States v. Murphy, 901 F.3d 1185, 1190 (10th Cir. 2018). This

determination of “primary” use requires consideration of the frequencies of the

lawful and unlawful activity at the premises. § 2D1.1, cmt. n.17; see Murphy, 901

F.3d at 1191.

        And the frequent/substantial metric is a reciprocal sliding scale. A substantial
        drug distribution that regularly and quickly passes through the home (two or
        three days) on a bi-monthly or tri-monthly basis may qualify as a primary use
        of the premises for drug-related purposes much the same as an exquisitely
        frequent, but relatively paltry, operation.

Id. In the same way that a residence is considered to be a home 100% of the time

even when not occupied 100% of the time, a home may be used for the primary

purpose of unlawful drug activity even when such activity is not constant. Id. The

analysis comes down to a ‘totality of the circumstances’ evaluation, which includes:

        (1) the frequency and number of drugs sales occurring at the home; (2) the
        quantities of drugs bought, sold, manufactured, or stored in the home; (3)
        whether drug proceeds, employees, customers, and tools of the drug trade
        (firearms, digital scales, laboratory equipment, and packaging materials) are
        present in the home, and (4) the significance of the premises to the drug
        venture.

Id. at 1191–92. The facts found to be sufficient to support an enhancement in one

case may not be necessary to support that enhancement in other cases. See id. at

1195.


                                            7
       The district court explained that Mr. Lozano had no reason to finance the

Josephine house other than for facilitation of the drug-distribution network.

Although Mr. Lozano leased and paid the utilities at the Josephine house, the court

found that it was not Mr. Lozano’s living place. In so doing, the court noted that

“[w]ith respect to the presentence report, as well as the [] bail report, there are

addresses listed that he lives at, where his wife lives, where his family lives. This

place doesn’t show up as among that list.” Aplt. Aplt. App. at 115. The court

rejected as unsupported Mr. Lozano’s proffered explanation of using the house to

charitably host relatives, noting that “[h]e is not, drugs aside, a wealthy man. There’s

no reason to believe that he is using this as a familial house.” Id. at 86. Accordingly,

the district court found that Mr. Lozano could have no logical primary interest for the

house “other than a place where these drug loads [were] brought, unloaded, replaced

with money and moved on.” Id. at 85–86.

       Mr. Lozano challenges these factual findings on appeal. He argues that the

premises were not maintained by him but by Mr. Lara-Gallegos, and that other facts

such as the lack of drug paraphernalia found in Mr. Lozano’s storage unit plus his

familial relationship with Mr. Lara-Gallegos compel the conclusion that he was

primarily using the house as a home and not for drug distribution. But the district

court’s factual findings are supported by the record, and Mr. Lozano’s presentation of

different facts as forming a different view of the evidence cannot undermine the

district court’s plausible account. First, as the government aptly notes on appeal, a

defendant’s day-to-day control of a property is only one part of the inquiry as to

                                            8
whether he maintained that property. See § 2D1.1, cmt. n.17. This comment to §

2D1.1 first asks whether the defendant owned or rented the place, which Mr. Lozano

unquestionably did. The inquiry also includes “the extent to which the defendant

controlled access to” the premises; here, Mr. Lozano controlled who resided in the

house in his absence (Mr. Lara-Gallegos) and he provided vehicles enabling access to

and from the premises to both this resident and Mr. Molina-Villalobos, a regular

visitor. Id. The record supports the district court’s finding that Mr. Lozano

“maintained” the premises.

      Second, the district court properly looked to both the size and scope of Mr.

Lozano’s use of the house for cocaine distribution in determining that this was a

primary use. See Murphy, 901 F.3d at 1192 (“But looking to both the size and the

scope of the drug-related use of the home . . . ensures the enhancement will not apply

when that use is truly ‘incidental.’”). Employing logic analogous to the sliding scale

described in Murphy, the district court recognized that in the same way a constant

flow of people through the house to pick up paltry quantities of drugs is consistent

with a primary use for distribution, so is fewer uses of the house that are individually

greater in magnitude. Considering the scale of the drug loads being moved through

the house, the court explained that “you have to look at, kind of, the nature of the

enterprise that we're talking about. What we're talking about is multiple kilogram

loads, very large. We're not talking about retail sales and retail distribution.” Aplt.

App. 82.



                                            9
       Moreover, the district court found that the frequency of the transactions using

the house likewise supported the application of the sentencing enhancement. It

inferred that these transactions were more numerous than the two specifically

outlined, supporting this inference by citing stipulated facts such as Mr. Molina-

Villalobos’s statements about the house receiving drug shipments from “various”

people, which the court interpreted as meaning “more than two.” Id. at 86; see also

id. at 83–84 (“[T]here’s no suggestion, no reasonable interpretation of these facts,

that suggests that there was drug activity, and then it, for some reason, stopped

during the entirety of the time of the Josephine house ownership . . . . That’s not

consistent with the recurring nature of the loads.”).

       The court explained that it was looking at the totality of the circumstances,

stating that “I take [the facts] as a picture, and what that picture says is, recurring use

of that house . . . .” Id. at 86. Based on all of the circumstances, the court found it

more likely than not that Mr. Lozano maintained the residence for the purpose of

distributing cocaine. Given the evidence discussed above, we cannot say that the

district court clearly erred in so finding.

   B. The Aggravated Role Enhancement

       Mr. Lozano next contends that the record does not support a three-level

sentencing enhancement under U.S.S.G. § 3B1.1(b), which applies if the defendant

was a manager or supervisor (but not an organizer or leader) and the criminal activity

involved five or more participants. Id. Mr. Lozano need only manage or supervise

one of his co-conspirators to qualify for the three-level enhancement. See, e.g.,

                                              10
United States v. Gonzales Edeza, 359 F.3d 1246, 1248 (10th Cir. 2004). “[T]he term

‘supervisor’ [is] satisfied upon a showing that the defendant exercised any degree of

direction or control over someone subordinate to him.” United States v. Backas, 901

F.2d 1528, 1530 (10th Cr. 1990) (emphasis added); see also id. (“In order to be a

supervisor, one needs merely to give some form of direction or supervision to

someone subordinate in the criminal activity . . . .”).

       Once again, the district court here looked at the whole picture to find that Mr.

Lozano was a manager or supervisor of some members of the conspiracy, specifically

Mr. Lara-Gallegos and Mr. Molina-Villalobos. In reaching this conclusion, the court

reviewed the list of considerations included in the Guidelines’ commentary. The court

focused most heavily on Mr. Lozano’s exercise of decision-making authority over these

co-conspirators, including provision of the means that enabled their trafficking activities,

and his routine claim to a larger share of the profits despite his lack of on-the-ground

involvement. It found that “[t]here are all of the indications that he has the ability to

exercise decision-making authority. People report to him. They report about drugs. They

report about money. They are not doing that for no reason.” Aplt. App. at 119. The court

discarded alternate explanations for the communications that occurred between Mr.

Lozano and his co-conspirators, reasoning that

       he is providing means, and . . . when you look at this, and they are reporting to
       him [] you can say, Well, it doesn't mean in isolation that he is the boss. But
       when they report numbers up to him, and he corrects them, Uh-huh, buddy.
       When they report problems to him, all of these things are signs of somebody
       who is the boss. Not just somebody who you call, because he is a consultant to
       the drug organization. And you are asking him, Hey, how do I get this fixed?
       Or, What would you do if? I suppose that's a possible interpretation, but it is

                                              11
      hardly a probable one, and certainly not one found by me by a preponderance
      of the evidence.

Id. at 118. Assessing the complete picture created by the evidence, the district court

reasoned:

      If you are controlling the dope and you are controlling the home and you are
      controlling the cars[,] and the people that are doing the low-level grunt work
      of the organization . . . are family members that are dependent upon you for
      transportation, for housing, you are in control.

Id. at 121. The court further found that Mr. Lozano received a larger share in the

fruits of the crime, noting that the ledgers found by DEA agents listed Lozano as

consistently collecting a sizeable cut of the profits—a larger share than anyone else

on the Colorado side of the conspiracy. As the government highlighted, these are

substantial payoffs “for someone who doesn’t show his face on pole cameras. . . . He

is not the one driving around town having to pick up load drivers, yet he gets big

payouts, and that’s because he is in charge.” Id. at 107.

      Based on these facts and corresponding inferences, the district court found by

a preponderance of the evidence that Mr. Lozano exercised some degree of control

over individuals subordinate to him. Mr. Lozano contends again on appeal that he is

a mere middleman who did not manage or supervise any other individuals, submitting

that although at times he would direct other individuals to complete tasks unrelated to

the conspiracy, he never directed or ordered them to do anything in furtherance of the

conspiracy. He relies heavily on the district of New Mexico’s decision in United

States v. Cervantes-Chavez, 59 F. Supp. 3d 1295, 1324 (D.N.M. 2014), arguing that

he too purchased and sold drugs in arms-length or quasi-arms-length transactions but

                                          12
did not supervise or manage any of the individuals to which he sold drugs. In that

case, however, “no single, identifiable individual ha[d] been proposed to the Court as

someone whom Cervantes-Chavez organize[d], le[d], manage[d], or supervise[d].”

Id. at 1324. In contrast, the government here identified two specific individuals who

were supervised by Mr. Lozano and provided factual support regarding each of them.

Moreover, our standard for reviewing the evidence is different from that of the

district court in Cervantes-Chavez, and Mr. Lozano’s ability to proffer a reasonable

alternate view of the evidence is not sufficient to undermine the district court’s

factual findings. At the sentencing hearing, the government cited to numerous

specific examples in the record of Mr. Lozano’s control over his co-conspirators, and

the district court was not clearly erroneous in relying on these examples to infer Mr.

Lozano’s role as a supervisor or manager. Nor was it clearly erroneous in choosing

the government’s proffered explanations for these specific examples over Mr.

Lozano’s.

      Furthermore, even some of Mr. Lozano’s own statements acknowledge the

district court’s view of the evidence as valid. For instance, he argued during the

sentencing hearing that both his and the government’s proffered explanations for why

he provided his coconspirators with means were reasonable. On appeal he argues

that his own depiction of his role in the conspiracy is “just as likely” as the

explanation offered by the government and accepted by the district court. Aplt. Br. at

23. But these equivalencies are not sufficient to meet the clearly erroneous standard



                                           13
of review, under which we must affirm the district court’s account of the evidence if

it is plausible in light of the record as a whole. See Anderson, 470 U.S. at 573–74.

      The district court’s factual findings are supported by the record, and we

therefore affirm.




                                          14
