United States of America v. Felipe Noriega, Jr.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1211
___________________________
United States of America
Plaintiff - Appellee
v.
Felipe Noriega, Jr.
Defendant - Appellant
___________________________
No. 21-1324
___________________________
United States of America
Plaintiff - Appellee
v.
Edgar Javier Alcantar Cuevas, also known as Edgar Alcantar
Defendant - Appellant
___________________________
No. 21-1419
___________________________
United States of America
Plaintiff - Appellee

-- 1 of 16 --

-2-
v.
Robert Alan McCleary, also known as Robert McCleary
Defendant - Appellant
___________________________
No. 21-1421
___________________________
United States of America
Plaintiff - Appellee
v.
Miguel Angel Alcantar Mercado, also known as Miguel Alcantar
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: January 10, 2022
Filed: May 26, 2022
____________
Before BENTON, SHEPHERD, and STRAS, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Appellants Felipe Noriega, Jr., Edgar Javier Alcantar Cuevas, Robert Alan
McCleary, and Miguel Angel Alcantar Mercado, along with others not currently
before this Court, were charged by superseding indictment with conspiracy to
distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). McCleary

-- 2 of 16 --

-3-
was also charged with distribution of a controlled substance, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(a). Appellants pled guilty to conspiracy to distribute a
controlled substance, with the government agreeing to dismiss the distribution of a
controlled substance charge against McCleary in exchange for his guilty plea. At
sentencing, the district court1 varied downward, sentencing each appellant to a term
below the United States Sentencing Guidelines (Guidelines) range. Noriega,
Alcantar Cuevas, McCleary, and Alcantar Mercado were sentenced to 72, 60, 180,
and 204 months imprisonment, respectively. They now challenge their sentences,
with Noriega additionally arguing that the district court erroneously denied his
motion to suppress evidence obtained as a result of the traffic stop of his vehicle, an
appeal right that he preserved in his plea agreement. Having jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm the district court.
I.
The facts, as set forth in the unobjected-to portions of appellants’ Presentence
Investigation Reports (PSR) prepared by the United States Probation Office, reveal
that appellants were part of a methamphetamine distribution conspiracy in which
methamphetamine, sourced from Mexico, was distributed in Minnesota and Iowa.
Appellants’ roles were as follows. Alcantar Cuevas, a cousin of the supply source,
received a shipment of ten pounds of methamphetamine from McCleary and, at the
supply source’s direction, delivered that methamphetamine to a customer. Alcantar
Cuevas also collected drug proceeds and wired those proceeds, a total of
approximately $8,740, to five different recipients in Mexico. The district court
attributed a total of 10 pounds, or 4,536 grams, of a methamphetamine mixture to
him.2 McCleary worked as a drug distributor in the conspiracy, delivering the ten
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
2 In Alcantar Cuevas’s PSR, 5,527.12 grams of actual or ice methamphetamine
is attributed to him. However, at sentencing, Alcantar Cuevas objected to this

-- 3 of 16 --

-4-
pounds of methamphetamine to Alcantar Cuevas and later delivering an additional
ten pounds of methamphetamine to a co-conspirator not currently before this Court
who, unbeknownst to McCleary, was cooperating with law enforcement. An
undercover law enforcement officer also participated in this second transaction. The
district court attributed a total of 20 pounds, or 9,072 grams, of actual or ice
methamphetamine to McCleary. Alcantar Mercado, like Alcantar Cuevas, is a
cousin of the supply source. Alcantar Mercado collected drug debts for the supply
source and wired over $40,000 in drug proceeds from the United States to 22
individuals in Mexico. The district court attributed a total of 5,175.58 grams of
actual or ice methamphetamine to him.3
Finally, Noriega acted as a delivery driver for the conspiracy, transporting
methamphetamine to Iowa. The district court attributed 22 pounds, or 9,620 grams,
of actual or ice methamphetamine to Noriega that originated from a November 15,
2019, traffic stop.4 While Noriega was traveling through Colorado, Officer Michael
calculation, arguing that the government assumed the purity of the
methamphetamine attributed to him based upon the methamphetamine seized from
Noreiga, despite the fact that the ten pounds attributed to Alcantar Cuevas had not
been tested for its purity. The district court agreed, finding that the government had
not established by a preponderance of the evidence that Alcantar Cuevas was
responsible for 5,527.12 grams of actual or ice methamphetamine. It concluded that
Alcantar Cuevas should instead be held responsible for 4,536 grams of a
methamphetamine mixture.
3 Alcantar Mercado’s PSR also attributed 1,340 grams of heroin to him, with
a total converted drug weight, for the methamphetamine and heroin combined, of
104,851.60 kilograms. Although this heroin was not pertinent to the conspiracy to
distribute charge, at sentencing, the district court considered it to be an aggravating
factor.
4 Noriega’s PSR initially found that 28 pounds of a methamphetamine mixture
was seized from Noriega’s vehicle; at Noriega’s suppression hearing, his lawyer
mentioned Noriega’s transport of 28, not 22, pounds of methamphetamine; and in
the government’s brief to this Court, it discusses the 28, rather than 22, pounds of

-- 4 of 16 --

-5-
Miller of the Mesa County Sheriff’s Department stopped Noriega after observing
him traveling in the left-hand lane, a violation of Colorado law. See Colo. Rev. Stat.
§ 42-4-1005(1). Officer Miller later testified about this traffic stop, as did Special
Agent Shane Gosnell of the Department of Homeland Security, who arrived after
the stop was already in progress to assist Officer Miller. Upon Special Agent
Gosnell’s arrival, he took a “cover” position at the front passenger side of Officer
Miller’s patrol vehicle, which was parked behind Noriega’s vehicle.
After stopping Noriega, Officer Miller approached Noriega’s front
passenger-side window and smelled an overwhelming “perfume-type odor”
emanating from Noriega’s front and rear passenger-side windows. When Noriega
handed Officer Miller his driver’s license, registration, and proof of insurance,
Officer Miller observed that Noriega’s hand was “trembling” and his face was
“twitching.” Officer Miller noticed that Noriega had a Nevada driver’s license and
license plate and a Las Vegas, Nevada address. Officer Miller testified that Las
Vegas is a “transshipment center[],” i.e., a location where large quantities of
narcotics are shipped to and then trafficked to states further inland.
Officer Miller testified that when asked about his travel plans, Noriega said
that he was traveling to his brother’s house for “maybe the weekend” despite not
knowing his brother’s address or how to find his brother. Officer Miller explained
that Noriega appeared to be uncomfortable answering questions about his travel
plans and repeatedly attempted to divert the conversation to other topics. Similarly,
Special Agent Gosnell explained that when Officer Miller returned to his patrol
vehicle to run Noriega’s driver’s license, registration, and proof of insurance, he
mentioned that Noriega was “overly nervous,” was providing “vague and
methamphetamine attributable to Noriega. However, Noriega’s PSR then explained
that following a laboratory analysis of the methamphetamine seized from Noriega’s
vehicle, 9,620 grams, or approximately 22 pounds, of actual or ice
methamphetamine were attributable to Noriega. And, at sentencing, the district
court discussed the “9.7 kilograms, approximately 22 pounds” of methamphetamine
attributable to Noriega. Therefore, we accept the 22-pound amount.

-- 5 of 16 --

-6-
implausible travel plans,” and a “strong perfume-like odor [was] coming from the
vehicle.”
Seeing that Noriega’s license was valid and there were no outstanding
warrants for him, Officer Miller returned to Noriega’s front passenger-side window.
Officer Miller testified that, at this time, he noticed that the “perfume” scent had
dissipated. Officer Miller returned Noriega’s driver’s license, registration, and proof
of insurance and told him that he was “good to go.” Noriega thanked Officer Miller
and put his vehicle into gear.
However, before Noriega pulled away, Officer Miller asked Noriega if he was
carrying any narcotics. Noriega said no, so Officer Miller asked to search Noriega’s
vehicle. Noriega expressed his confusion, telling Officer Miller that he thought that
he was free to go. This exchange continued, with Noriega asking if he was required
to consent to a search and Officer Miller telling Noriega that he had a drug dog in
his patrol vehicle. Eventually, Officer Miller directed Special Agent Gosnell to
remove the drug dog from the patrol vehicle. Officer Miller testified that upon
seeing the dog, Noriega agreed to a dog sniff around the perimeter of his vehicle.
Officer Miller testified that Noriega asked to exit the vehicle prior to the dog sniff,
which Officer Miller allowed, and according to Officer Miller’s testimony, upon
Noriega’s exit, Noriega’s legs were visibly “shaking.” The dog alerted Officer
Miller to the driver-side lower rear door seam. Officer Miller testified that he asked
Noriega if he could search the interior of Noriega’s vehicle and Noriega agreed.
The search of Noriega’s vehicle revealed 22 packages containing a total of 22
pounds of actual or ice methamphetamine. Noriega explained that he had been hired
to deliver methamphetamine to Des Moines, Iowa, and was to be paid $400 per
pound of methamphetamine transported. Officer Miller detained Noriega, and
Noriega was then transported to Iowa. In a post-Miranda5 interview, Noriega
consented to a search of his phone, and on the phone, investigators found
5 Miranda v. Arizona, 384 U.S. 436 (1966).

-- 6 of 16 --

-7-
photographs of receipts for wire transfers that Noriega had received as payment for
his transport of the methamphetamine. While searching Noriega’s phone,
investigators also saw that one of Noriega’s “handlers” had sent Noriega an address
to which Noriega was to deliver the methamphetamine. That address belonged to
one of Noriega’s co-conspirators not currently before this Court.
Noriega later filed a motion to suppress the methamphetamine found pursuant
to the stop and search of his vehicle, along with any other evidence derived from
that stop, including his subsequent admissions. In this motion, Noriega argued that
suppression was appropriate because Officer Miller did not have reasonable
suspicion to justify the extension of the traffic stop—a violation of Noriega’s Fourth
Amendment rights—and evidence recovered subsequent to the illegal search was
fruit of the poisonous tree.
The district court held a suppression hearing and received testimony from both
Officer Miller and Special Agent Gosnell. Officer Miller testified about his
experience and training, explaining that he had been an officer with the Mesa County
Sheriff’s Department since 1992 and had worked in a patrol or drug interdiction
capacity for the Western Colorado Drug Task Force since 1999. Officer Miller
estimated that he has completed over 1,000 hours of drug interdiction training and
has conducted thousands of traffic stops, during which he has seized thousands of
pounds of narcotics, including methamphetamine. Officer Miller also
acknowledged that he has been recognized on local, state, and national levels for his
drug interdiction work.
The district court ultimately denied Noriega’s motion to suppress. First, the
district court found that, in light of Officer Miller’s experience and training, his
testimony was credible. It then concluded that after Officer Miller returned
Noriega’s driver’s license, registration, and proof of insurance, the encounter was
consensual, meaning that Noriega was not seized for purposes of the Fourth
Amendment, but that even if Noriega was seized, “the facts testified to . . . provide
reasonable suspicion for the ongoing investigation of illegal narcotics trafficking.”

-- 7 of 16 --

-8-
II.
We first address Noriega’s argument that the district court erred in denying
his motion to suppress. “In the motion-to-suppress context, we review a district
court’s legal conclusions de novo and its factual findings for clear error.” United
States v. Callison, 2 F.4th 1128, 1131 (8th Cir. 2021); see also United States v. Leon,
924 F.3d 1021, 1025 (8th Cir. 2019) (requiring that we “giv[e] due weight to the
inferences of the district court and law enforcement officials” (citation omitted)).
Noriega argues that the extension of his traffic stop was not supported by
reasonable suspicion and was therefore unlawful and, because evidence was
obtained as a result of that unlawfully extended traffic stop, suppression is
appropriate. The government responds that after Officer Miller returned Noriega’s
driver’s license, registration, and proof of insurance, the encounter between Officer
Miller and Noriega became consensual, meaning that Noriega was not “seized”
within the purposes of the Fourth Amendment.
We need not decide whether a seizure occurred because, even assuming that
Noriega was seized, the traffic stop was not unlawfully extended. “A seizure
justified only by a police-observed traffic violation . . . ‘become[s] unlawful if it is
prolonged beyond the time reasonably required to complete th[e] mission’ of issuing
a ticket for the violation.” Rodriguez v. United States, 575 U.S. 348, 350-51 (2015)
(second and third alterations in original) (citation omitted)). “To extend a routine
traffic stop, an officer needs reasonable suspicion of additional criminal activity.
Reasonable suspicion requires ‘specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant’ a brief investigative
stop.” Callison, 2 F.4th at 1132 (citations omitted); see also United States v.
Englehart, 811 F.3d 1034, 1040-41 (8th Cir. 2016) (“In the normal course, once the
officer finishes the tasks involved with the traffic violation ‘the purpose of the traffic
stop is complete and further detention of the driver or vehicle would be
unreasonable, unless something that occurred during the traffic stop generated the
necessary reasonable suspicion to justify further detention or unless the continued

-- 8 of 16 --

-9-
encounter is consensual.’” (citation omitted)). “The reasonable suspicion inquiry
asks ‘whether the detaining officer has a particularized and objective basis for
suspecting wrongdoing.” United States v. Sanchez, 955 F.3d 669, 674 (8th Cir.
2020) (citation omitted). “[O]ur review on this issue looks to the totality of the
circumstances, ‘allow[ing] officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them.’” United States v. Dortch, 868 F.3d 674, 680 (8th Cir. 2017)
(second alteration in original) (quoting United States v. Arizona, 534 U.S. 266, 273
(2002)).
Here, Officer Miller’s testimony confirms that he had reasonable suspicion to
extend the stop based on “specific and articulable facts,” Callison, 2 F.4th at 1132
(citation omitted), that “occurred during the traffic stop,” Englehart, 811 F.3d at
1040 (citation omitted). Noriega was traveling from Las Vegas, Nevada, a location
known to Officer Miller as a common origin point for narcotics. Additionally,
Noriega’s demeanor was suspicious; he was visibly “shaking,” “twitching,” and
“trembling,” his mouth was noticeably dry, he appeared increasingly uncomfortable
when pressed about his travel plans, and he attempted to change the topic of
conversation, directing Officer Miller away from questions regarding his
destination. Officer Miller also explained that, because a strong fragrance was
coming from Noriega’s vehicle at the outset of the stop but dissipated over the stop’s
duration, he suspected that Noriega had sprayed a substance to mask the scent of
narcotics, a tactic that, in his experience, is commonly used by narcotics traffickers
to conceal their narcotics. Officer Miller testified about his extensive experience
and training, which he was allowed to “draw on,” “mak[ing] inferences from and
deductions about” Noriega’s involvement in the transportation of narcotics. See
Dortch, 868 F.3d at 680 (citation omitted).
Viewing these facts cumulatively and considering Officer Miller’s extensive
experience and training, we find that he had reasonable suspicion to extend the stop
of Noriega. See, e.g., United States v. Pacheco, 996 F.3d 508, 512 (8th Cir. 2021)
(finding reasonable suspicion to extend stop based on nervousness and odd

-- 9 of 16 --

-10-
responses to “routine questions about travel plans”); United States v. Fuse, 391 F.3d
924, 929 (8th Cir. 2004) (finding reasonable suspicion to extend stop based on
trooper’s experience in highway drug interdiction and his testimony regarding
vehicle’s “strong odor of air freshener,” driver’s unusual nervousness and unusual
explanation of his travel plans, and driver’s origin state being “a ‘source state’ for
illegal narcotics”). Because Officer Miller’s extension of the stop was lawful,
suppression of the evidence obtained as a result of that extension is inappropriate.
Therefore, discerning no error, we affirm the district court’s denial of Noriega’s
motion to suppress.
III.
Next, we consider the substantive reasonableness arguments raised by
Noriega, McCleary, and Alcantar Mercado, reviewing the substantive
reasonableness of their sentences for abuse of discretion. See United States v.
Carnes, 22 F.4th 743, 750 (8th Cir. 2022). An abuse of discretion occurs where a
district court “(1) fails to consider a relevant factor that should have received
significant weight; (2) gives significant weight to an improper or irrelevant factor;
or (3) considers only the appropriate factors but in weighing those factors commits
a clear error of judgment.” United States v. Ballard, 872 F.3d 883, 885 (8th Cir.
2017) (per curiam) (citation omitted). However, “[a] district court has ‘wide
latitude’ to assign weight to give[n] factors, and ‘[t]he district court may give some
factors less weight than a defendant prefers or more weight to other factors, but that
alone does not justify reversal.’” Carnes, 22 F.4th at 751 (second and third
alterations in original) (citation omitted); see also United States v. Beckman, 787
F.3d 466, 499 (8th Cir. 2015) (“[W]here a district court has sentenced a defendant
below the advisory guidelines range, it is nearly inconceivable that the court abused
its discretion in not varying downward still further.” (alteration in original) (citation
omitted)).

-- 10 of 16 --

-11-
A.
First, we address the substantive reasonableness of Noriega’s sentence.
Noriega’s PSR, which applied a two-level reduction in the Guidelines offense level
for Noriega’s role as a minor participant and a three-level reduction for Noriega’s
acceptance of responsibility, calculated a total offense level of 29 and a criminal
history category of II, which resulted in a Guidelines range of 97 to 121 months
imprisonment. At sentencing, the district court recognized that although Noriega
qualified for a safety valve reduction pursuant to 18 U.S.C. § 3553(f), USSG
§ 5C1.2(a) had not been amended to reflect the safety valve reduction recognized by
§ 3553(f). The district court nevertheless varied downward as if the provision were
applicable, recalculating Noriega’s total offense level as 27, which resulted in a
Guidelines range of 78 to 97 months imprisonment. Ultimately, the district court
varied downward further, sentencing Noriega to 72 months imprisonment with a
3-year term of supervised release.
Noriega argues that the district court imposed a substantively unreasonable
sentence by declining to vary downward based on his policy disagreement with the
Guidelines’ treatment of a mixture of methamphetamine as opposed to pure
methamphetamine. However, we have frequently stated that while a district court
may vary from the Guidelines based on a policy disagreement, it is not required to
do so. See United States v. Sharkey, 895 F.3d 1077, 1082 (8th Cir. 2018) (per
curiam); see also United States v. Binion, 801 F. App’x 459, 462 (8th Cir. 2020) (per
curiam) (“[W]hile the district court could have granted a downward variance based
on a disagreement with the Guidelines’ treatment of methamphetamine purity, it had
the discretion to decline to do so.” (citation omitted)).
Noriega also contends that the district court abused its discretion in weighing
the 18 U.S.C. § 3553(a) factors. Specifically, he believes that the district court failed
to consider or give adequate weight to his personal characteristics and history,
arguing that he is young, is part of a close-knit, supportive family, is in a long-term,
stable relationship with his partner, has children with that partner, and has a

-- 11 of 16 --

-12-
methamphetamine addiction, which caused him to become involved in this
conspiracy, jeopardizing the things in his life that he values, such as his family and
children. Noriega also briefly addresses the other § 3553(a) factors. However,
reversal is not appropriate simply because the district court did not weigh the
§ 3553(a) factors as Noriega preferred. See Carnes, 22 F.4th at 751; see also United
States v. Farmer, 647 F.3d 1175, 1180 (8th Cir. 2011) (“A district court’s choice to
assign relatively greater weight to the nature and circumstances of the offense than
to the mitigating personal characteristics of the defendant is well within its wide
latitude in weighing relevant factors.”). Moreover, “it is nearly inconceivable” that
the district court abused its discretion in sentencing Noriega to a below-Guidelines
term of imprisonment. See Beckman, 787 F.3d at 499 (citation omitted). Thus, we
find that Noriega’s sentence was substantively reasonable and affirm his sentence.
B.
We next consider the substantive reasonableness of McCleary’s sentence.
McCleary’s PSR calculated a total offense level of 35, which included a three-level
reduction for his acceptance of responsibility, and a criminal history category of II.
This calculation resulted in a Guidelines range of 188 to 235 months imprisonment.
At sentencing, the district court varied downward, sentencing McCleary to 180
months imprisonment with a 5-year term of supervised release.
McCleary, born in 1962, asserts that his sentence is substantively
unreasonable because, although he was sentenced to 180 months imprisonment, his
advanced age effectively renders the term a life sentence. However, the district court
recognized this argument below, explaining that it was “concerned about protecting
the public and providing adequate deterrence” but had chosen to vary downward
after “tak[ing] into consideration the current conditions of COVID-19 and the
challenges of serving time during this period and the defendant’s age at 59 years
old.”

-- 12 of 16 --

-13-
McCleary also argues that the district court overlooked, or placed insufficient
weight on, his “lesser role” in the offense. Despite the fact that McCleary
characterizes himself as being a “mere courier and waypoint holder in possession
for a manager or supervisor co-conspirator,” the district court found that the amount
of methamphetamine attributed to McCleary was large. He additionally
characterizes himself as an “unsophisticated user of methamphetamine who was
enlisted for a fee to make at least one delivery run,” but the district court found that
this claim was undermined by the fact that, since 2000, he had “consistent[ly]
participat[ed] in methamphetamine distribution,” a fact which the district court
found to be particularly aggravating. McCleary suggests that the district court
improperly used his prior convictions against him despite the fact that he did not
qualify as a career offender, but the district court acknowledged that McCleary was
not a career offender, stating, “[T]his is a continuation of a pattern. Because of the
age of the 2000 conviction, the defendant doesn’t qualify as a career offender, but
the age also means that it isn’t used to elevate the applicable guideline range in any
way.” The district court explained that its “concern” was “that this is still happening,
which suggests that deterrence and protection of the public require a significant
sentence.” Like Noriega, McCleary is unhappy with how the district court weighed
the § 3553(a) factors, but that is insufficient to demonstrate any abuse of the district
court’s discretion, and accordingly, we affirm McCleary’s sentence. See Carnes, 22
F.4th at 751; see also Beckman, 787 F.3d at 499.
C.
Finally, we consider Alcantar Mercado’s claim that his sentence is
substantively unreasonable. His PSR, after applying a three-level reduction for his
acceptance of responsibility, calculated a total offense level of 35 and a criminal
history category of III, which resulted in a Guidelines range of 210 to 262 months
imprisonment. At sentencing, the district court varied downward and sentenced
Alcantar Mercado to 204 months imprisonment with a 5-year term of supervised
release. He now argues that his sentence is substantively unreasonable because
although he was not eligible for a mitigating role reduction, he nevertheless played

-- 13 of 16 --

-14-
a limited role in the conspiracy. However, the district court emphasized that not
only were 5.1 grams of actual or ice methamphetamine attributed to Alcantar
Mercado, but he was also responsible for a large amount—over 1,300 grams—of
heroin. In fact, 90,000 kilograms or more of a converted drug weight were attributed
to Alcantar Mercado, which the district court summarized as meaning that “there
have been multiple drugs that are converted to a common level.” The district court
also found Alcantar Mercado’s criminal history aggravating, noting that although it
was “modest . . . comparatively,” it was still “of concern” because he had previously
violated the terms of his probation.
Like Noriega and McCleary, Alcantar Mercado also argues that the district
court improperly weighed the § 3553(a) factors. However, as we have already
explained, the simple fact that a defendant disagrees with how the district court
weighed the § 3553(a) factors is insufficient to establish that the district court abused
its discretion. See Carnes, 22 F.4th at 751. Therefore, we find that Alcantar
Mercado’s sentence is substantively reasonable and affirm that sentence. See
Beckman, 787 F.3d at 499.
IV.
Unlike the other appellants, Alcantar Cuevas’s argument is one of procedural
error rather than substantive unreasonableness. He contends that the district court
procedurally erred by denying him a mitigating role reduction pursuant to USSG
§ 3B1.2(b) and, consequently, by not applying a three-level reduction pursuant to
USSG § 2D1.1(a)(5).
After applying a two-level safety valve reduction, a two-level mitigating role
reduction, and a three-level reduction for Alcantar Cuevas’s acceptance of
responsibility, Alcantar Cuevas’s PSR calculated a total offense level of 27 and a
criminal history category of I. The government objected to the PSR’s application of
a two-level mitigating role reduction and argued that Alcantar Cuevas’s total offense
level should instead be 29, resulting in a Guidelines range of 87 to 108 months

-- 14 of 16 --

-15-
imprisonment. At sentencing, the district court agreed with the government and
found that Alcantar Cuevas was ineligible for a two-level mitigating role reduction.
Alcantar Cuevas also objected to the PSR, arguing that the government had not
proved by a preponderance of the evidence that the methamphetamine attributed to
him was actual or ice methamphetamine, as opposed to a methamphetamine mixture.
The district court agreed and found that 4,536 grams of a methamphetamine mixture
was attributable to Alcantar Cuevas. After sustaining these objections, the district
court recalculated Alcantar Cuevas’s total offense level, applying a two-level safety
valve reduction and a three-level reduction for Alcantar Cuevas’s acceptance of
responsibility. The district court calculated a total offense level of 29 and a criminal
history category of I, which resulted in a Guidelines range of 87 to 108 months
imprisonment. The district court then varied downward, sentencing Alcantar Cuevas
to 60 months imprisonment with a 3-year term of supervised release.
“We review the district court’s fact-findings with respect to a participant’s
role in the offense for clear error.” United States v. Surratt, 172 F.3d 559, 567 (8th
Cir. 1999). “It is well-established that a district court’s determination of whether a
defendant was a minor participant may only be reversed if clearly erroneous.”
United States v. Johnson, 358 F.3d 1016, 1017 (8th Cir. 2004). “The defendant has
the burden of proving he played a minor role.” United States v. Godinez, 474 F.3d
1039, 1042 (8th Cir. 2007). “A defendant may be eligible for the [USSG] § 3B1.2(b)
reduction if his culpability for the relevant conduct is relatively minor compared to
that of other participants, but the mere fact that a defendant is less culpable does not
entitle him to the reduction.” United States v. Johnson, 408 F.3d 535, 538 (8th Cir.
2005) (citation omitted). When deciding whether a mitigating role reduction was
appropriate, we “compare[] ‘the acts of each participant in relation to the relevant
conduct for which the participant is held accountable’ and measure[] ‘each
participant’s individual acts and relative culpability against the elements of the
offense.’” Id. at 538-39 (citation omitted).
Here, the district court found that a § 3B1.2(b) reduction was inappropriate
because Alcantar Cuevas “played multiple roles within a very large drug trafficking

-- 15 of 16 --

-16-
conspiracy” and “work[ed] directly with the source of supply from Mexico to both
transfer money and to distribute large-scale methamphetamine into Iowa and
Minnesota.” We agree. Alcantar Cuevas was tasked with collecting drug proceeds
and wiring those proceeds to multiple recipients in Mexico. In fact, Alcantar Cuevas
wired over $8,000 from the United States to Mexico. He has not shown that he
played only a minor role in this conspiracy, and the district court did not clearly err
in not applying a two-level mitigating role reduction pursuant to § 3B1.2(b) and,
consequently, by not applying a three-level reduction pursuant to § 2D1.1(a)(5). See
Johnson, 408 F.3d at 538.
V.
Finding no error, we affirm the judgment in each of these appeals.
______________________________

-- 16 of 16 --