United States of America v. Marco Antonio Zavala- Cervantes

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCO ANTONIO ZAVALA-
CERVANTES,
Defendant - Appellant.
No. 21-5039
(D.C. No. 4:20-CR-00081-JFH-1)
(N.D. Okla.)
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ORDER AND JUDGMENT*
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Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Marco Antonio Zavala-Cervantes pleaded guilty without the benefit of a plea
agreement to one count of possession with intent to distribute methamphetamine. In
calculating the United States Sentencing Commission, Guidelines Manual (Nov.
2018) (the “Guidelines”) sentencing range, the Presentence Investigation Report
(“PSR”) suggested Mr. Zavala-Cervantes was only a minor participant in the crime
and recommended a lower base offense level and a downward adjustment. The
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 7, 2022
Christopher M. Wolpert
Clerk of Court
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Government objected to the lower base offense level and the minor participant
adjustment, arguing that Mr. Zavala-Cervantes was more than a minor participant.
The district court sustained that objection, and Mr. Zavala-Cervantes appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the sentence.
I. BACKGROUND
As part of a Drug Enforcement Agency (“DEA”) investigation, law
enforcement stopped a car Mr. Zavala-Cervantes was driving and found
approximately thirteen pounds of methamphetamine in the vehicle. The
methamphetamine was 95% pure, and a DEA agent estimated it would have been
worth around $78,000 at the time. A grand jury indicted Mr. Zavala-Cervantes of
knowingly and intentionally possessing with the intent to distribute 500 grams or
more of a mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). 1
Mr. Zavala-Cervantes pleaded guilty to this count without the benefit of a plea
agreement.
1 A few weeks after the Government obtained the initial indictment, the
Government obtained a superseding indictment that included the count of possession
with intent to distribute 500 grams or more of methamphetamine and a new count of
being an alien who was found in the United States after having been deported and
removed without obtaining consent to reapply for admission to the United States, in
violation of 8 U.S.C. § 1326. Mr. Zavala-Cervantes pleaded guilty to the illegal
reentry count, and the district court sentenced him on that count.
Mr. Zavala-Cervantes does not challenge that sentence, so we do not address it on
appeal.
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The PSR calculated a base offense level of thirty-eight based on the amount of
methamphetamine Mr. Zavala-Cervantes possessed with intent to distribute. The PSR
then decreased the base offense level by four levels because of Mr. Zavala-
Cervantes’s minor role as a courier and his high base offense level, resulting in a
base offense level of thirty-four. See USSG §2D1.1(a)(1)(iii). The PSR also included
a two-level downward adjustment for being a minor participant, see id. §3B1.2, and a
three-level downward adjustment for Mr. Zavala-Cervantes’s acceptance of
responsibility, see id. §3E1.1. Thus, the PSR recommended assigning
Mr. Zavala-Cervantes a total offense level of twenty-nine. The PSR also concluded
that Mr. Zavala-Cervantes’s criminal history fell into category I. The statutory term
of imprisonment for the offense was ten years to life. 21 U.S.C. § 841(b)(1)(A)(viii).
Based on the total offense level and criminal history category, the PSR determined
Mr. Zavala-Cervantes’s sentencing range under the Guidelines was 87 to 108 months.
The Government objected to the PSR’s finding that Mr. Zavala-Cervantes was
a minor participant and the associated decreased base offense level and downward
adjustment. In support of the objection, DEA Special Agent Taylor Wilson testified
the amount of methamphetamine Mr. Zavala-Cervantes had in his possession was
larger than the amount with which the average transporter would be entrusted, so
Mr. Zavala-Cervantes was likely “a trusted individual within the organization.” ROA
Vol. II at 15. The Government also produced text messages retrieved from a cell
phone that Mr. Zavala-Cervantes had in his possession, and Special Agent Wilson
testified they showed Mr. Zavala-Cervantes was negotiating the price of the
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methamphetamine with customers. According to Special Agent Wilson, these
messages show Mr. Zavala-Cervantes had “a higher level of involvement” because he
was trusted with traveling to get the methamphetamine, negotiating the price for the
methamphetamine, and handling the cash he would receive from customers. Id. at 17.
Mr. Zavala-Cervantes did not proffer any evidence to support the offense level
adjustment for being a minor participant. Rather, Mr. Zavala-Cervantes’s counsel
argued, without evidence, that Mr. Zavala-Cervantes “got paid a specific fee to
deliver this, and that’s his involvement.” Id. at 21.
The district court concluded the evidence “demonstrates that the defendant was
more than a minor participant,” id. at 23, and sustained the Government’s objection.
Alternatively, the district court reasoned that even if it were to disregard the
Government’s evidence, Mr. Zavala-Cervantes had not met his burden to prove he
was a minor participant. Thus, the district court concluded that
Mr. Zavala-Cervantes’s base offense level was thirty-eight, and after adjusting for
acceptance of responsibility, the total offense level was thirty-five. The court also
adopted the criminal history category of I as calculated in the PSR. With this offense
level and criminal history category, the court computed the applicable Guidelines
range to be 168 to 210 months of imprisonment.
The court then considered the applicable factors under 18 U.S.C. § 3553 and
sentenced Mr. Zavala-Cervantes to 210 months of imprisonment. Mr. Zavala-
Cervantes appeals his sentence.
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II. DISCUSSION
Mr. Zavala-Cervantes challenges the procedural reasonableness of his
sentence, arguing that the district court erred by declining to reduce his offense level
under USSG §§3B1.2 and 2D1.1 for being a minor participant in the crime. A district
court’s finding that a defendant was or was not a minor participant is a factual
finding we review for clear error. United States v. Nkome, 987 F.3d 1262, 1268
(10th Cir. 2021). And we review all legal conclusions regarding the Guidelines de
novo. Id.
Section 3B1.2 of the Guidelines provides that a defendant’s offense level is
decreased by two levels “[i]f the defendant was a minor participant in any criminal
activity.” According to the Sentencing Commission’s commentary, 2 a minor
participant is a defendant who is “less culpable than the average participant in the
criminal activity, but whose role could not be described as minimal.” USSG §3B1.2,
comment. (n.5).
The determination of whether a defendant was a minor participant “is based on
the totality of the circumstances and involves a determination that is heavily
dependent upon the facts of the particular case.” USSG §3B1.2, comment. (n.3(C)).
To make this determination, a court should consider the degree to which the
defendant (1) understood the scope and structure of the criminal activity, (2) planned
2 The commentary to the Guidelines is controlling unless it is plainly erroneous
or inconsistent with the Guidelines. United States v. Nkome, 987 F.3d 1262, 1269
(10th Cir. 2021).
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or organized the criminal activity, (3) held a decision-making role, (4) participated
and possessed discretion and responsibility, and (5) stood to benefit from the criminal
activity. Id. If a defendant qualifies for an adjustment under USSG §3B1.2 and the
base offense level is thirty-eight, USSG §2D1.1(a)(5) provides that the defendant’s
base offense level is also decreased by four levels. It is well-settled that a “defendant
bears the burden of proving by a preponderance of the evidence that he was a minor
participant in the crime.” United States v. Adams, 751 F.3d 1175, 1179 (10th Cir.
2014).
Mr. Zavala-Cervantes argues the district court applied an incorrect legal
standard to find that he was not a minor participant. He contends the district court
erred because it relied solely on the importance of Mr. Zavala-Cervantes’s role in the
criminal operation, which is “‘not determinative’ of eligibility” for the minor role
adjustment. United States v. Yurek, 925 F.3d 423, 446 (10th Cir. 2019) (quoting
USSG §3B1.2 comment. (n.3(C))). Mr. Zavala-Cervantes also argues the district
court legally erred “[b]y failing to consider [his] relative culpability” to another
individual in the criminal scheme. Id. We review the district court’s legal conclusions
de novo, but we also “presume, absent some indication in the record suggesting
otherwise, that trial judges know the law and apply it in making their decisions.”
Nkome, 987 F.3d at 1273 (quotation marks omitted). 3
3 Mr. Zavala-Cervantes waived both of these legal arguments because he did
not raise either of them before the district court, and he did not argue that they would
result in a plain error. See United States v. Leffler, 942 F.3d 1192, 1198 (10th Cir.
2019). The Government failed to argue waiver on appeal, so it has “waived the
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First, there is no indication that the district court relied solely on the
importance or necessity of Mr. Zavala-Cervantes’s role in the criminal scheme.
Indeed, the district court did not mention the importance or necessity of
Mr. Zavala-Cervantes’s role. Moreover, the Government’s evidence suggests that
Mr. Zavala-Cervantes transported an unusually large quantity of drugs and negotiated
the sale price of those drugs. This evidence shows that Mr. Zavala-Cervantes had
discretion and decision-making authority when negotiating prices with buyers. And it
belies Mr. Zavala-Cervantes’s argument that the court relied only on the importance
of his role to support the court’s finding.
Second, despite Mr. Zavala-Cervantes’s contentions otherwise, the court did
not fail to consider his relative culpability. Rather, the court explicitly stated there
was not “sufficient information to fully assess the defendant’s role in the instant
offense relative to that of any other participant.” ROA Vol. II at 23. There was no
evidence in the PSR or at the sentencing hearing about the roles of other participants.
Special Agent Wilson mentioned another individual when describing the background
circumstances of the investigation, but he did not testify about that individual’s role
or culpability. Although given the opportunity, Mr. Zavala-Cervantes declined to
question Special Agent Wilson further. Thus, the court did not commit a legal error,
waiver,” id. at 1199 (quotation marks omitted), and we exercise our discretion to
consider these unpreserved arguments, see United States v. Ansberry, 976 F.3d 1108,
1120 n.6 (10th Cir. 2020) (exercising discretion to consider a waived argument when
the Government had waived the waiver).
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and its finding that there was no evidence of another participant with whom to
compare Mr. Zavala-Cervantes’s culpability was not clearly erroneous.
Outside of these legal arguments, the district court’s determination that
Mr. Zavala-Cervantes was not a minor participant is a factual conclusion we review
for clear error. We find none. The district court considered the evidence before it,
which included testimony from a DEA agent and text messages showing that
Mr. Zavala-Cervantes was (1) transporting a large quantity of drugs, (2) negotiating
prices for them, and (3) entrusted with the cash from the drug sales. This evidence
supports the district court’s finding that Mr. Zavala-Cervantes was not a minor
participant. See Nkome, 987 F.3d at 1273 (stating that a district court is not required
“to make detailed findings, or explain why a particular adjustment under the
guidelines is or is not appropriate” (quotation marks omitted)). Therefore, the district
court did not err in applying a total offense level of thirty-five and calculating the
Guidelines sentencing range accordingly. 4
4 Mr. Zavala-Cervantes also argues (1) the district court made a legal error in
its alternative reasoning by concluding that Mr. Zavala-Cervantes had not met his
burden to show that he qualified for a minor role adjustment and (2) the district
court’s statement that it would have applied the same sentence regardless of these
findings did not save the sentence from remand. We need not consider either of these
arguments because the district court did not err in its primary reasoning.
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III. CONCLUSION
Because the district court did not apply the wrong legal standard and its factual
findings were not clearly erroneous, we AFFIRM the sentence.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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