United States Court of Appeals
UNITED STATES COURT OF APPEALS April 16, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-2024
v. District of New Mexico
JUAN MANUEL ROJAS- (D.C. No. 05-CR-2458-013-JC)
ORDER AND JUDGMENT *
Before KELLY, ANDERSON and McCONNELL, Circuit Judges.
Appellant Juan Manuel Rojas-Hernandez pleaded guilty to one count of an
indictment charging him with conspiracy to possess with intent to distribute more
than one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i),
and 846. He was sentenced to serve a term of 168 months' imprisonment, 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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
bottom of his advisory range under the United States Sentencing Guidelines. He
appeals that sentence as substantively unreasonable. We affirm.
Mr. Rojas-Hernandez was named in four counts of a sixteen-count, fifteen-
defendant superseding indictment brought against the members of a large heroin
trafficking organization that operated in and around Albuquerque, New Mexico,
until the DEA took it down on November 15, 2005. The indictment was the result
of a months-long investigation by local and federal authorities, including a
wiretap that intercepted over four thousand pertinent telephone calls.
Mr. Rojas-Hernandez, who had illegally immigrated to the United States
from Mexico, began his association with the conspiracy as a street-level courier.
In time his higher-ups promoted him to the mid-level position of dispatcher:
Seven days a week, between about 7:00 a.m. and 7:30 or 8:00 p.m., a
dispatcher would answer [his] cell phone and take the orders [for
heroin]. The dispatcher would direct the customer to a known
locationâ€"usually the parking lot of an easily identifiable legitimate
business, such as fast food restaurants, grocery stores, car washes,
etc.â€"and give the customer an estimate of how long it would take
for the delivery to be made. The dispatcher would then call the street
level courier assigned to that route and tell the courier which
customers were waiting at which locations. The dispatchers often
instructed the couriers which addicts were considered good credit
risks and directed the couriers not to sell to addicts who had failed to
pay in the past. The dispatchers would also make decisions whether
the couriers should accept particular trade goods for heroin instead of
[End Page 2]
R., Vol. II, PSR Â¶ 51, at 11â€"12. We largely assume the parties' familiarity with
the remaining facts of the case.
On August 7, 2006, pursuant to a plea agreement with the government, Mr.
Rojas-Hernandez entered a plea of guilty to Count 1 of the indictment, the charge
of conspiracy to possess with intent to distribute more than one kilogram of
heroin. His forty-page Presentence Investigation Report (PSR) explained in
substantial detail the nature of the conspiracy, its structure and methods of
operation, and the scope of Mr. Rojas-Hernandez's involvement. It accounted
him responsible, over the course of the conspiracy, for the distribution of between
10 and 30 kilograms of heroin. For purposes of the United States Sentencing
Guidelines, the PSR therefore computed his base offense level at 36, see U.S.S.G.
§ 2D1.1(c)(2) (2005), applied a two-point enhancement for his role in the offense
as an organizer, leader, manager, or supervisor, see id. § 3B1.1(c), and reduced
this by three points to recognize his acceptance of responsibility, see id. §
3E1.1(a), (b), for a total Offense Level of 35. The absence of any criminal
background meant that Mr. Rojas-Hernandez's Criminal History Category was I,
and his resultant advisory sentencing range was 168â€"210 months.
Mr. Rojas-Hernandez did not object to any of the PSR's factual allegations
or Guidelines calculations. At a sentencing hearing his counsel discussed a few
of his redeeming qualities, such as his law-abiding past, his allegedly minor role
in the conspiracy, and the claim that Mr. Rojas-Hernandez had turned to crime
[End Page 3]
only to be able to pay for medical treatment for his daughter's hepatitis. Counsel
did not, however, request any specific sentence or argue for a variance from the
Guidelines range. The district court imposed the bottom term of 168 months, and
Mr. Rojas-Hernandez timely appealed. He does not challenge the district court's
factual findings or the calculation of his Guidelines range, but asserts that his
sentence is unreasonably high in light of the factors prescribed for sentencing by
18 U.S.C. § 3553(a).
A. Waiver and Forfeiture
The government urges that, without reaching the merits, we should consider
the claim now presented to have been waived or forfeited below. Although they
are often confused or conflated, waiver and forfeiture of error are distinct
doctrines: "Whereas forfeiture is the failure to make the timely assertion of a
right, waiver is the â€˜intentional relinquishment or abandonment of a known
right.'" United States v. Olano, 507 U.S. 725
, 733 (1993) (quoting Johnson v.
Zerbst, 304 U.S. 458
, 464 (1938)); accord, e.g., United States v. Carrasco-
Salazar, 494 F.3d 1270
, 1272 (10th. Cir. 2007); United States v. Teague, 443 F.3d 1310
, 1314 (10th Cir. 2006). Waiver affirmatively bars a party from appealing on
the relinquished claim, while forfeiture generally means he may have relief only
for plain error. Carrasco-Salazar, 494 F.3d at 1272; Teague, 443 F.3d at
1314â€"15. Because Mr. Rojas-Hernandez made no objection to his PSR, and never
[End Page 4]
specifically requested a sentence below his Guidelines range, the government
contends that he waived his right to appeal the sentence he received, or at least
that his appeal should be subject to review for plain error only.
In United States v. Mancera-Perez, 505 F.3d 1054
, 1058 (10th Cir. 2007),
we held that a defendant who "not only failed to object after the district court
pronounced his sentence, but failed, even before sentencing, to offer any
argument whatsoever for a lower sentence and, indeed, agreed with the district
court that the length of the sentence imposed was reasonable," thereby waived his
right to appeal the reasonableness of the sentence. The government argues that
the same rule should apply in this case because Mr. Rojas-Hernandez did not
object after sentencing or argue beforehand for a below-Guidelines sentence. We
disagree. The decisive factor in Mancera-Perezâ€"as in any true waiver caseâ€"was
affirmative acquiescence or agreement, neither of which was present here.
Retrenching, the government urges alternatively that we should deem this
sentencing claim forfeited and review it for plain error. The government
acknowledges that in United States v. Torres-Duenas, 461 F.3d 1178
(10th Cir. 2006), a case where the defendant "did not specifically object to the
reasonableness of his sentence in the district court," we held that "when the claim
is merely that the sentence is unreasonably long, we do not require the defendant
to object in order to preserve the issue." On its face, Torres-Duenas would thus
seem to squeeze out forfeiture altogether: whether or not the defendant objects,
[End Page 5]
his claim receives full review; unless he affirmatively acquiesced in the sentence,
in which case the claim is barred altogether. But in Mancera-Perez we
"clarif[ied] Torres-Duenas's exception" to the ordinary forfeiture rules: the
defendant can benefit from it only if he "at least made the argument for a lower
sentence before the district court." 505 F.3d at 1059.
Mr. Rojas-Hernandez contends that, if any such argument is necessary, he
did make an argument for a lower sentence at his sentencing hearing by
highlighting his minimal role in the conspiracy and the fact that he had turned to
crime only to get money to pay for his daughter's medical care. We need not, and
do not, decide whether "an argument for a lower sentence" must be an argument
for a sentence below the Guidelines. Nor do we decide whether merely stressing
a defendant's mitigating facts, when one does not know what kind of sentence the
court is contemplating, is truly "an argument for a lower sentence" than he
receives, sufficient to preserve the claim, or whether it is just an argument for a
lowish sentence, which is satisfied when he is sentenced at the bottom of the
Guidelines. In this case, we would affirm whether or not plain error applied, and
will for argument's sake review Mr. Rojas-Hernandez's claim on the
reasonableness standard to which he claims to be entitled.
B. Standard of Review
A sentence must be "sufficient, but not greater than necessary," to comply
with a set of sentencing considerations laid out by Congress in 18 U.S.C. §
[End Page 6]
3553(a), including "the nature and circumstances of the offense and the history
and characteristics of the defendant," "the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense," "the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct," and the defendant's Guidelines range.
Our review "will, of course, take into account the totality of the
circumstances." Gall v. United States, 128 S. Ct. 586
, 597 (2007). However,
because Mr. Rojas-Hernandez was sentenced within the Guidelines, his sentence
is presumptively reasonable. United States v. Angel-Guzman, 506 F.3d 1007
1012 (10th Cir. 2007); United States v. Kristl, 437 F.3d 1050
, 1054 (10th Cir.
2006) (per curiam). The presumption is rebuttable, but "appellate
â€˜reasonableness' review merely asks whether the trial court abused its discretion."
Rita v. United States, 127 S. Ct. 2456
, 2465 (2007). That level of appellate
review implies a "substantial deference to district courts." United States v.
Smart, 518 F.3d 800
, 806 (10th Cir. 2008).
Mr. Rojas-Hernandez presents four reasons to think the district court
abused its discretion in this case: his character in Mexico was good, his motives
in crime were high-minded, his role in the offense was minimal, and his co-
defendants received lower sentences than he did. We are unpersuaded.
[End Page 7]
The record reveals no more about Mr. Rojas-Hernandez's character than
that he was never before convicted of a crime, and was gainfully employed as a
sugar-cane cutter in Mexico. (His only profession since arriving in the United
States has been of the illegal variety.) But legitimate employment, while
commendable, is not remarkable in the least, and the lack of a criminal past is
already accounted for under the Guidelines through the calculation of the
defendant's Criminal History Category; the district court does not abuse its
discretion by giving it no more consideration than that. The argument that a
below-Guidelines sentence was mandated because Mr. Rojas-Hernandez was
engaged in crime to pay for medical care for his daughter likewise fails. A great
many defendants have turned to crime because of poverty or to support
themselves and their loved ones, so Mr. Rojas-Hernandez's case cannot be
distinguished on this basis from "the mine run of cases" in which a Guidelines
sentence will be reasonable. Rita, 127 S. Ct. at 2465.
The argument that Mr. Rojas-Hernandez played only a very minor role in
this conspiracy is also unavailing. The PSR extensively outlined the scope of his
role in the organization, including his "promotion" from street-level courier to the
safer job of dispatcher. Mr. Rojas-Hernandez did not object to the two-point
Guidelines enhancement applicable to a defendant who "was an organizer, leader,
manager, or supervisor" in criminal activity, U.S.S.G. § 3B1.1(c), or to the PSR's
description, reprinted above, of the supervisory and decisionmaking
[End Page 8]
responsibilities of a heroin "dispatcher." These realities are inconsistent with his
claim of minor-participant status, and the district court was entitled to rely on
them at sentencing. Similarly, Mr. Rojas-Hernandez argues that, although he may
have arranged drug transactions, he never handled drugs or money. But when he
was searched by police during a traffic stop on August 11, 2005, he had $975 in
his pocketâ€"a hefty sum for one who has no legitimate employment and claims to
Mr. Rojas-Hernandez argues strenuously that his sentence was
unreasonable because he was punished more severely than other, allegedly more
culpable members of his conspiracy. "[I]t is inconceivable," he says, "that Mr.
Rojas-Hernandez received a sentence which was four years longer than the leader
of the drug trafficking organization," Juan Cruz-Mora. Aplt's Br. 15. As the
government rightly points out, however, the record of this case contains an
insufficient basis for reviewing this claim. We can conclude from the findings in
Mr. Rojas-Hernandez's PSR that Mr. Cruz-Mora's role and involvement were
more substantial, but we know nothing about Mr. Cruz-Mora's "history and
characteristics," 18 U.S.C. § 3553(a)(1), about what it would take "to protect the
public from further crimes of" Mr. Cruz-Mora, id. § 3553(a)(2)(C), about whether
he rendered "substantial assistance in the prosecution" of other offenders,
U.S.S.G. § 5K1.1, or any of the numerous other things that might have made a
lower sentence reasonable for him.
[End Page 9]
More importantly, this argument fails as a matter of law. Although §
3553(a)(6) requires the district court to sentence in light of "the need to avoid
unwarranted sentence disparities," we have repeatedly held that this "requires a
judge to take into account only disparities nationwide among defendants with
similar records and Guideline calculations." United States v. Verdin-Garcia, 516 F.3d 884
, 899 (10th Cir. 2008) (citing United States v. Davis, 437 F.3d 989
(10th Cir. 2006); United States v. Gallegos, 129 F.3d 1140
, 1143 (10th Cir.
1997)). The Supreme Court's opinion in Gall, 128 S. Ct. at 599â€"600, suggests
that a court may be within its discretion to go further and consider the possibility
of unwarranted disparities (or even unwarranted similarities, cf. Verdin-Garcia,
516 F.3d at 899) among co-defendants. But the court surely acts within its
discretion when it declines to do so and adheres to the text of § 3553(a).
Therefore, absent a showing that Mr. Rojas-Hernandez's 168-month sentence was
unreasonably higher than the sentences of others in his shoes across the nation, he
may not have relief on this basis. No such showing has been made.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
Entered for the Court,
Michael W. McConnell
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