United States of America v. Roberto Luis Aguirre

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO LUIS AGUIRRE,
Defendant- Appellant.
No. 20-2039
(D.C. No. 2:19-CR-00107-JAP-1)
(D.N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, EBEL, and EID, Circuit Judges.
_________________________________
Mr. Roberto Luis Aguirre appeals his sentence for possessing
methamphetamine with intent to distribute, arguing that the district court
erroneously
 declined to adjust the offense level downward based on a
mitigating role,
 denied his request for a downward variance or downward
departure, and
* Oral argument would not materially help us to decide the appeal. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). So we have decided the
appeal based on the briefs and the record on appeal.
This order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. But the order and judgment may be cited for its persuasive value
if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
April 20, 2021
Christopher M. Wolpert
Clerk of Court
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 imposed a substantively unreasonable sentence.
We reject these arguments and affirm.
I. The district court sentenced Mr. Aguirre to 151 months’
imprisonment.
The case began when Mr. Aguirre was stopped at a border
checkpoint. At the checkpoint, agents found methamphetamine in Mr.
Aguirre’s rental car. Discovery of the drugs led to a charge of possessing
50 or more grams of methamphetamine with intent to distribute, and Mr.
Aguirre pleaded guilty.
Before sentencing, Mr. Aguirre requested
 a four-level downward adjustment in the offense level, arguing
that he had only a minimal role as a courier of a small amount
of methamphetamine,
 a downward departure of one criminal-history point,
contending that placement in category VI would substantially
overstate the seriousness of his criminal record, and
 a downward variance to 60 months, citing his disadvantaged
background, mental health problems, and need for drug
treatment.
The district court rejected these requests. Using an offense level of 29 and
a criminal-history score of VI, the court sentenced Mr. Aguirre to 151
months’ imprisonment, the bottom of the guideline range.
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II. The district court did not err in denying a downward adjustment
in the offense level.
On appeal, Mr. Aguirre challenges the denial of his request for a
downward adjustment. See U.S. Sent’g Guidelines Manual § 3B1.2. We
reject this challenge.
A downward adjustment is permissible when defendants show that
their roles are minor or minimal. United States v. Martinez, 512 F.3d
1268, 1275 (10th Cir. 2008). The role is minor or minimal when the
defendant bears substantially less culpability than that of average
participants in the crime. U.S.S.G. Id. cmt. 3(A). Because this inquiry is
fact-intensive, we review the denial of a downward adjustment under the
clear-error standard. Martinez, 512 F.3d at 1275.
The district court did not clearly err in denying a downward
adjustment. Though Mr. Aguirre contends that he served only as a courier,
he provided no information about a drug-trafficking operation or the
involvement of any others. See U.S. Sent’g Guidelines Manual § 3B1.2
cmt. 2 (explaining that a downward adjustment is permissible only if
multiple offenders were involved). Though he presented no such
information, he points out that he had no items—like ledgers, phone
records, or baggies—suggesting that he wanted to sell his
methamphetamine. Despite the absence of these items, a factfinder could
reasonably infer that Mr. Aguirre had intended to sell the
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methamphetamine and had played more than a minor or minimal role in
the offense. And a downward adjustment might have been unwarranted
even if he had been acting only as a courier. United States v. Salas, 756
F.3d 1196, 1207 (10th Cir. 2014); see also Martinez, 512 F.3d at 1276
(“[W]e have consistently ‘refused to adopt a per se rule allowing a
downward adjustment based solely on a defendant’s status as a drug
courier.’”) (quoting United States v. Rangel-Arreola, 991 F.3d 1519, 1524
(10th Cir. 1993)). Mr. Aguirre’s “assertion that he was a minimal
participant is not enough to overcome the clearly erroneous standard.”
United States v. Virgen-Chavarin, 350 F.3d 1122, 1131 (10th Cir. 2003).
Despite the absence of a clear error, Mr. Aguirre argues that the
district court relied too heavily on his failure to discuss the criminal
scheme. But the court could reasonably consider Mr. Aguirre’s refusal to
discuss who had done what. Without that information, the court could not
compare Mr. Aguirre’s culpability to that of others. So we reject Mr.
Aguirre’s challenge to the district court’s focus on his refusal to discuss
the criminal scheme.
III. We lack jurisdiction to review Mr. Aguirre’s request for a
downward departure
In his opening brief, Mr. Aguirre challenges the denial of his request
for a downward departure. In his reply brief, Mr. Aguirre concedes that we
lack jurisdiction to consider the district court’s denial of a downward
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departure. Appellant’s Reply Br. at 2. We agree, concluding that we lack
jurisdiction over this challenge. United States v. Davis, 900 F.2d 1524,
1529–30 (10th Cir. 1990).
IV. The district court did not err in denying Mr. Aguirre’s request
for a downward variance, and the 151-month sentence is
substantively reasonable.
Mr. Aguirre argues that the district court should have varied
downward and imposed a five-year sentence, the statutory minimum. See
21 U.S.C. § 841(a)(1), § 841(b)(1)(B). In the alternative, he challenges the
substantive reasonableness of his 151-month sentence.
For both arguments, we consider whether the district court abused
its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). We
presume that the sentence was substantively reasonable because it fell
within the guideline range. United States v. McBride, 633 F.3d 1229,
1232–33 (10th Cir. 2011). Mr. Aguirre can rebut this presumption based
on the statutory sentencing factors. United States v. Kristl, 437 F.3d 1050,
1055 (10th Cir. 2006). These factors are (1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the
need for a sentence to reflect the seriousness of the crime, deter future
criminal conduct, protect the public, and provide rehabilitation; (3) the
legally available sentences; (4) the U.S. Sentencing Guidelines; (5) the
Sentencing Commission’s policy statements; (6) the need to avoid
unwarranted disparities among sentences; and (7) the need for restitution.
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18 U.S.C. § 3553(a). We reverse only if the district court applied these
factors in a way that was “arbitrary, capricious, whimsical, or manifestly
unreasonable.” United States v. Garcia, 946 F.3d 1191, 1211 (10th Cir.
2020) (quoting United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir.
2017)).
In arguing for a downward variance, Mr. Aguirre contends that his
criminal history was overstated because
 he had the lowest possible criminal-history score for category
VI (13 points),
 none of his prior convictions involved a weapon or more
serious crimes like robbery, residential burglary, sexual abuse,
or the distribution of illegal drugs, and
 he had obtained relatively light sentences for his prior
offenses.
In his view, the light sentences show that other judges did not regard him
as a serious danger to the community. In addition, Mr. Aguirre points to
his childhood abuse and neglect, his history of drug abuse, and his
experience as a plumber.
In our view, Mr. Aguirre has not shown that the district court abused
its discretion. The district court reasonably applied the sentencing factors
in arriving at a 151-month sentence.
Mr. Aguirre’s sentence is supported by his extensive criminal record
and the seriousness of his past crimes. He had eleven prior convictions in
about seventeen years. Three of the prior convictions had involved
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violence (aggravated battery, criminal damage to property, and public
affray). Two other convictions had involved threats to public safety
(receiving a stolen motor vehicle and driving while intoxicated). In
addition, his probation had been revoked six times. Regardless of other
judges’ past assessments, the district court could reasonably consider Mr.
Aguirre a danger to the community, especially given his continued
criminal activity after the previous sentences.
The court could reasonably temper the sentence based on Mr.
Aguirre’s history of neglect and substance abuse. But the court could also
put little weight on this history. Though the record reflects depression,
there is no evidence of an effort to obtain treatment for his mental-health
problems. See United States v. Lente, 759 F.3d 1149, 1173 (10th Cir.
2014) (noting that a defendant had “done little to show that she is seeking
to correct her problematic behavior” and rejecting her argument for a
lesser sentence based on neglect and mental health problems). Nor did Mr.
Aguirre present evidence of a productive work history. Though he had
worked as a plumber’s apprentice for eight years before his conviction,
Mr. Aguirre had worked only odd jobs and sold drugs.
The district court acted within its discretion in denying a downward
variance and imposing a prison term of 151 months.
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Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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