U.S. v. Virgen-Chavarin
| Decision Date | 03 December 2003 |
| Docket Number | No. 02-8052.,No. 02-8076.,02-8052.,02-8076. |
| Citation | 350 F.3d 1122 |
| Parties | UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Miguel VIRGEN-CHAVARIN, Defendant-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David A. Kubicheck, Assistant United States Attorney (Matthew H. Mead, United States Attorney and Patrick J. Crank, Assistant United States Attorney, on the brief), Casper, WY, for Plaintiff-Appellee.
Ronald G. Pretty, Cheyenne, WY, for Defendant-Appellant.
Before HENRY, BALDOCK, and TYMKOVICH, Circuit Judges.
A grand jury indicted Martin Jimenez-Oliva ("Martin"), Miguel Virgen Chavarin ("Chavarin"), Aurelio Topete-Plascencia ("Topete"), Melchor Jimenez-Oliva ("Melchor"), Laurencio Jimenez-Oliva ("Laurencio"), Lorenzo G. Delgado ("Delgado"), Roberto Montoan-Herrera ("Herrera"), Angel Contreras-Castellanos ("Castellanos"), and Joseph Ramirez ("Ramirez") for various violations of Titles 8, 18, and 21 of the United States Code.1 The Indictment charged Chavarin with (1) conspiracy to possess with intent to distribute, and to distribute, methamphetamine and cocaine, (2) distribution of methamphetamine, and (3) aiding and abetting the distribution of methamphetamine. Chavarin pled guilty to each count after plea negotiations with the Government failed.2
At the conclusion of a three day sentencing hearing, the district court found Chavarin's base offense level under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") was thirty six. The district court denied Chavarin's request for (1) a two level reduction of his base offense level pursuant to the "safety valve" provisions of the Guidelines, and (2) a four level downward adjustment for his mitigating role in the offense. The district court, however, adjusted Chavarin's base offense level downward three levels for timely acceptance of responsibility. With a final base offense level of thirty three, and a criminal history category of I, the district court sentenced Chavarin to a term of 135 months imprisonment. Both Chavarin and the Government appeal from the district court's final sentence. See 18 U.S.C. § 3742(a),(b). We have jurisdiction under 18 U.S.C. § 3742 and affirm.
In 1999, Jorge Contreras was the leader of an organization that distributed controlled substances in Casper, Wyoming. Contreras, like his predecessors and successors in Casper, was part of a larger organization that distributed controlled substances, primarily methamphetamine and cocaine, in several states. The leaders of the smaller organizations, like Contreras in Casper, were supplied with drugs from Mexico, California, and Arizona. The larger organization would deliver the drugs, in amounts between seven and fifty pounds, into Casper approximately every fifteen days. At the time each shipment would arrive, the individuals in the Casper organization would deliver the money they had made from the previous delivery, absent their share of the proceeds. Eventually, the money would be transported back to Mexico. If the leaders or members of the Casper organization were arrested, the larger organization in Mexico would recruit new members to replace the arrestees.
In May 1999, Jorge Contreras moved into a residence with Defendant Herrera. During the time Contreras and Herrera were in charge of the Casper organization, they distributed approximately 200 pounds of methamphetamine. Contreras was arrested on December 11, 1999; however, Herrera disappeared and was not apprehended.
In early 2000, Manuel Lopez-Soberanis arrived in Casper to replace Contreras. In March 2000, Lopez-Soberanis was arrested. He was replaced the next month by Defendant Martin. It is believed that Martin's brother, Defendant Laurencio, joined him in Casper in November 2000. At various intervals thereafter, the remaining Defendants joined Martin and Laurencio in Casper to partake in the distribution of methamphetamine and cocaine.
Martin's organization distributed controlled substances in Casper primarily from three locations: an apartment at 948 North Park Avenue ("North Park Apartment"); a house at 211 ½ K Street; and a house at 530 Chestnut Street ("Chestnut House"). Generally, Defendants Chavarin and Topete would obtain methamphetamine from Martin at the North Park Apartment. Defendant Delgado testified that he observed Chavarin and Topete obtain at least a pound of methamphetamine from both the North Park Apartment and Chestnut House.3 Delgado also testified that he obtained a pound of methamphetamine from Martin. While the organization primarily distributed drugs from the North Park Apartment and Chestnut House, they stored some of their controlled substances at Delgado's "stash house."
Meanwhile, Agents Steve Woodson and Thomas Duncan of the United States Drug Enforcement Administration ("DEA") testified that they began to investigate Martin and his associates. On April 5, 2001, the DEA, through a confidential informant, purchased 112.4 grams of methamphetamine from Defendants Martin and Topete. On April 13 and May 4, 2001, the DEA purchased another 55.7 and 109.7 grams of methamphetamine from Martin and Topete respectively.
Martin returned to Mexico in the summer of 2001 and has never been apprehended. After Martin left, Defendant Laurencio assumed control over the Casper organization. During the summer of 2001, Laurencio met his methamphetamine sources from Arizona at Delgado's house on two or three occasions. On one such occasion, Laurencio called Topete, Chavarin, Castellanos, and Herrera and told them that the source was at Delgado's house. Those individuals arrived shortly and paid the source an undetermined amount of money.
In August 2001, the confidential informant introduced Agent Duncan, who was working undercover, to Laurencio and Topete. On August 12, 2001, Agent Duncan met Laurencio and Chavarin to consummate a prearranged deal for half a pound of methamphetamine. During the transaction, Laurencio and Chavarin "fronted" (i.e., sold on credit) Agent Duncan a half pound of methamphetamine. On August 19, 2001, Agent Duncan arranged to pay Laurencio — the person Agent Duncan felt he was "doing the deals with" — for the methamphetamine that had been fronted the previous week. Agent Duncan paid Laurencio and Topete $5,000 for the methamphetamine. At that meeting, Agent Duncan was fronted another half pound of methamphetamine.
On August 28, 2001, Agent Duncan met Laurencio and Topete to pay for the methamphetamine. At this transaction, Laurencio and Topete were only able to front Agent Duncan two ounces of methamphetamine. Agent Duncan expressed his dissatisfaction with dealing in such small quantities. Laurencio replied that he would work on obtaining larger quantities of methamphetamine.
Delgado testified that in early September 2001, an unidentified Mexican male driving a station wagon with Arizona plates met Laurencio at Delgado's house. The driver of the station wagon asked Laurencio for tools in order to obtain drugs from the vehicle's spare tire. After cutting open the spare tire, the driver of the station wagon retrieved approximately six pounds of methamphetamine and an unknown quantity of cocaine from the tire.
On September 13, 2001, Agent Duncan met with Defendants Laurencio, Melchor, and Chavarin. Agent Duncan paid Laurencio for the two ounces of methamphetamine he was fronted on August 28, 2001. Laurencio also directed Chavarin to give Agent Duncan more methamphetamine. Chavarin fronted Agent Duncan another pound of methamphetamine. On September 28, 2001, Agent Duncan met Laurencio and paid him for that pound of methamphetamine. During the deal, Laurencio informed Agent Duncan that a problem had arisen and that he would be returning to Mexico for two weeks. Laurencio also said that Agent Duncan could continue to deal with Topete while he was gone. Agent Duncan then discussed the possibility of obtaining larger quantities of methamphetamine from Laurencio. Laurencio agreed to provide Agent Duncan with six pounds of methamphetamine in late October when he returned from Mexico.
The DEA decided to arrest Laurencio before he left for Mexico. Laurencio and Herrera were arrested on September 28, 2001. On October 3, 2001, Topete fronted Agent Duncan a half pound of methamphetamine. Topete also agreed to deliver another four pounds of methamphetamine to Agent Duncan. The next day, the DEA arrested Topete and Chavarin. Delgado was arrested on November 30, 2001. After Delgado's arrest, the DEA searched his house and seized over a pound of methamphetamine.
On appeal, Chavarin challenges the district court's (1) finding that he was not entitled to the benefit of the Guidelines' safety valve provisions, (2) finding that he was not entitled to a four level downward adjustment on his base offense level for his minimal participation in the conspiracy, (3) failure to correct irregularities that allegedly occurred in the preparation of his presentence investigative report ("PSR"), and (4) witness credibility findings. We discuss each in turn.
First, Chavarin challenges the district court's finding that he was not entitled to the benefit of the Guidelines' safety valve provisions. See U.S.S.G. §§ 2D1.1(b)(6), 5C1.2(a). The district court found Chavarin was not entitled to the "safety valve" because he did not provide "all information and evidence [he had] concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan[.]" (R. Vol. 6 at 689). We review a district court's application of the Guidelines' safety valve provisions for clear error. United States v. Roman-Zarate, 115 F.3d 778, 784 (10th Cir.1997). We are cognizant that the district court's application of the safety valve is fact specific and dependent on credibility determinations that cannot be replicated with the same accuracy on...
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