John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney with him on the briefs), Topeka, KS, for Plaintiff-Appellee.
Before TYMKOVICH, EBEL, and MATHESON, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Sergio Alvarez was charged with one count of possession with intent to distribute methamphetamine and one count of conspiracy to distribute methamphetamine. He pleaded guilty to the count charging possession with intent to distribute, but he refused to plead guilty to the related conspiracy count and was convicted after a trial. The sole issue on appeal is whether the district court erred when it denied him an offense-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Finding no error, and exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
A Wichita, Kansas grand jury charged appellant Sergio Alvarez (" Sergio" ) in a two-count indictment with (1) possession with intent to distribute more than 400 grams of methamphetamine, and (2) conspiracy to distribute more than 400 grams of methamphetamine. The charged conspiracy involved three members: Sergio; Sergio's brother, Mario Alvarez (" Mario" ); and Mariano Herrera (" Herrera" ). For reasons known only to Sergio, he pled guilty to the first count (possession with intent to distribute), but decided to go to trial on the second (conspiracy).
During a three-day trial in the United States District Court for the District of Kansas, the jury heard the following: In May 2011, a government informant introduced undercover detective Eddy Padron to Sergio at Sergio's residence, where the three discussed and arranged a methamphetamine transaction to take place the following day. During the discussion, Sergio called the second member of the charged three-person conspiracy, Herrera, to " bring [a] sample" of methamphetamine. R. at 77-78. Herrera arrived in a red Saturn with .5 grams of methamphetamine for Padron. Herrera remained present while Padron and Sergio agreed to the details of the following day's transaction.
The next day, at a pre-arranged location, Padron met up with Sergio and Herrera, who arrived together in the red Saturn Herrera had been driving the day before. Sergio got out of the vehicle, and then Herrera departed to retrieve the agreed-upon amount of methamphetamine. Herrera soon returned with the third member of the charged three-person conspiracy, Sergio's brother Mario. When Mario and Herrera exited the vehicle, Padron noticed a large baggie of methamphetamine protruding from Mario's shorts. Sergio ordered Herrera to open the Saturn's trunk, and then Mario placed the drugs— 436.5 grams of 95% pure methamphetamine— inside the trunk for Padron to examine. On Padron's signal, police descended upon and arrested Sergio, Mario, and Herrera.
Both before and during trial, Sergio admitted his own possession and intent to distribute the methamphetamine; but he maintained that there was never any agreement to do the same between himself, Herrera, and Mario, and thus that he was innocent of the conspiracy charge. After the jury convicted Sergio on the conspiracy charge, he objected to the presentence report (the " PSR" ) on the basis that it did not provide for a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. Sergio argued that, in spite of his having gone to trial on the conspiracy charge, under the Guidelines, the court could exercise its discretion to grant him a § 3E1.1 reduction because he had always admitted the facts which allowed the jury to infer conspiratorial agreement; he had merely contested the " legal culpability of [those] acts." The district court overruled Sergio's objection to the PSR, sentencing him to 210 months on each count, to be served concurrently.
A sentence is procedurally unreasonable if the district court incorrectly calculates the Guidelines sentence. United States v. Haley,529 F.3d 1308, 1311 (10th Cir.2008). If a sentence is determined to be procedurally unreasonable, remand is warranted unless the error is harmless, " that is, unless the error in calculating the Guidelines range did not affect the sentence selected." United States v. Tom, 494 F.3d 1277, 1282 (10th Cir.2007). Sergio claims that the district court committed legal error when it allegedly determined, in contravention of the plain ...