## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 07-2881

_____________ United States of America, Appellee,

v. Reynoldo Razo-Guerra, Appellant.

_____________ No. 07-2978

_____________ United States of America, Appellee,

v. Andres Rubio-Guerrero, also known as Manuel Rubio, Appellant. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Appeals from the United States District Court for the Northern District of Iowa.1 The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa. -2- ________________ Submitted: May 15, 2008 Filed: July 25, 2008

________________ Before RILEY, HANSEN, and ARNOLD, Circuit Judges.

________________ HANSEN, Circuit Judge.
Andres Rubio-Guerrero (Rubio) and Reynoldo Razo-Guerra (Razo) each pleaded guilty to conspiring to distribute methamphetamine and marijuana, see 21 U.S.C. §§ 841(a), 846, and the district court 1 sentenced them to 240 months and 135 months of imprisonment, respectively. E ach defendant appeals his sentence, and we affirm.

I. The Tri-State Drug Task Force worked with a confidential source (CS) related to a suspected large-scale drug distribution scheme transporting methamphetamine and marijuana from Texas to the Midwest, particularly the Omaha, Nebraska, and Sioux City, Iowa, areas. Rubio contacted the CS in September 2006, asking him to transport 120 pounds of marijuana from Texas and offering to supply the CS with methamphetamine. The CS never transporte d the marijuana from Texas, but he was involved in numerous drug transactions w ith Rubio and Razo. The CS met Rubio on September 26, 2006, and they traveled toge ther to meet Razo, w ho delivered a plastic bag to the CS containing 447.5 grams of 44% pure methamphetamine. On October 2, 2006, the CS made arrangements to r eceive 100 pounds of marijuana and one-half to one pound of crystal methamphetamine fro m Rubio. The CS met Rubio in Omaha,2 Miranda v. Arizona , 384 U.S. 436 (1966). -3- and they drove together to Sioux City. The CS paid Rubio $4,000 for the prior delivery of methamphetamine. Meanwhile , at Rubio's request, Razo drove a car containing 100 pounds of marijuana in its trunk from Omaha to the residence of Marcela Gutierrez in Sioux C ity, where the marijuana was transferred to another vehicle. On October 3, the CS picked up Rubio, and they drove to a residence in South Sioux City, Nebraska, where Rubio fronted 75 pounds of marijuana to the CS out of the trunk of a car. The following da y, October 4, Rubio offered the CS two more pounds of crystal methamphetamine, wh ich the CS picked up from the back seat of the car that Razo had used to deliver the marijuana on October 3.
The defendants were arrested during a tr affic stop on October 4, and the officers recovered identifiable cash fro m both defendants that the CS had used to pay Rubio. In a proffer interview, Razo informed offi cers that he had entered the United States illegally a few months prior to his arrest and that he mowed la wns for Rubio and took care of Rubio's houses. Razo informed the officers that he took two large garbage bags from Omaha to South Sioux City for Rubio, but claimed that he did not know what was in the bags and that he did notsmell marijuana while he was transporting the bags. When asked when he last ha ndled "ice," Razo responded one and one-half weeks prior. He also reported taking a ba g from Rubio a week and a half prior and delivering it to Rubio's friend, though Razo claimed to not know the bag's contents. He guessed it may have contai ned cash. Razo denied help ing Rubio sell or transport drugs and said he did not know Rubio sold drugs until the two were arrested. In a second proffer interview on J une 29, Razo claimed that hedid not know until he was arrested that he had been transporting drugs. The officers did not believe Razo's claim, and Razo provided no further information.
Rubio reported in a post-Miranda 2 interview that he ha d been living for three days in a hotel in Sioux City, that he had b een in the United States for ten years, and-4- that he was unemployed. Rubio refused to answer a ny other questions about the instant offense. Drug Enforcement Agen cy officers from Oklahoma City, Oklahoma, and Dallas, Texas, informed the Tri-State Task Force officers a week later that they had been buying pound quantities of me thamphetamine from Rubio.
Both defendants pleaded guilty without a plea agreement. AtRazo's sentencing hearing, the district court denied Razo's motion for safety valve relief under the United States Sentencing Guidelines Manual (USSG ) § 5C1.2(a)(5). Facing an advisory guidelines range of 108 to 135 months and a mandatory minimum sentence of 120 months, the district court sentenced Razo to 135 months of imprisonment. At Rubio's sentencing hearing, the district court determined that Rubio was a leader or organizer of a criminal activity involving at least fi ve participants, and it increased his base offense level by four leve ls under USSG § 3B1.1(a). Rubio faced an advisory guidelines range of 210 to 262 months, and the district court sentenced him to 240 months of imprisonment.
Razo appeals his sentence, arguing that the district court erred in denying him safety valve relief. Rubio also appeals hi s sentence, arguing that the district court clearly erred in assessing a four-level enhancement under USSG § 3B1.1(a).
II. Razo's Appeal Razo faced a statutory minimum senten ce of 120 months based on the quantity of drugs involved in his conviction. See 21 U.S.C. § 841(b)(1)(A). The safety valve exception authorized the district court to sentence Razo below the mandatory minimum sentence if Razo met the five criteria listed in § 3553(f), including "truthfully provid[ing] to the Governmentall information and evidence [he] ha[d] concerning the offense or offenses that were part of the same c ourse of conduct." 18 U.S.C. § 3553(f)(5). We review for clear e rror the district court's finding that Razo was not truthful about his involvement in the drug trafficking conspiracy during his3 North Carolina v. Alford , 400 U.S. 25 (1970). -5- two proffer interviews w ith the government. See United States v. Sanchez , 475 F.3d 978, 980 (8th Cir. 2007).
During the two proffer interviews, Razo to ld the agents that on one occasion he delivered a package wrapped in plastic to a friend of Rubio's at Rubio's request and that on another occasion he drove a car from Omaha to Sioux City for Rubio. Razo maintained throughout both proffer interviews that he did not know that the package wrapped in plastic contained crystal meth amphetamine or that the car contained 100 pounds of marijuana in the trunk; he further asserted that he did not know Rubio was dealing drugs until he and Rubi o were arrested. Razo argue s that he nevertheless took responsibility for his involvement in the cons piracy by pleading guilty and that he told the officers the little that he knew, even implicating himself in additional drug activity.
The only evidence offered at the senten cing hearing was the testimony of Agent Dan Wagner, who testified th at he did not believe that Razo did not know he was transporting marijuana based on the str ong odor emitted by such a large quantity of marijuana in the trunk of a car. He tes tified that Ms. Gutierrez told him that Razo delivered the car containing th e marijuana to her residen ce and that Razo was present when the drugs were transf erred to a second car, from which the CS retrieved the marijuana. He also testified that he thought Razo was lying when he said he did not know that the package he handed to the CS contained crystal methamphetamine, based on its packaging in a clear Ziplock baggie. Razo's attorney cr oss-examined Agent Wagner but offered no additional evidence. The district court found Razo's claim that he did not know he was tran sporting drugs to be incons istent with his guilty plea, which included knowledge of the drugs as an element of the conspiracy. The district court commented that Razo woul d have a more persuasive argument if he had entered an Alford 3 plea rather than a straight guilty plea. It specifically credited the testimony of Agent Wagner and adopted the findings from Razo's Presentence Investigation-6- Report (PSR). The district court concluded that Razo did not provide all the information he knew about the offense and determined that Razo was ineligible for safety valve relief.
Razo bore the burden at the sentencing h earing of establishing each of the five requirements for safety valv e relief by a preponderance of the evidence. Sanchez , 475 F.3d at 980. Razo's assertion that Agen t Wagner's testimony did not conclusively establish Razo's knowledge of the drugs confuses the burden of proof; the Government had no burden to put on any evidence concerning Razo 's eligibility for safety valve relief. See United States v. Alvarado-Rivera, 412 F.3d 942, 947-48 (8th Cir. 2005) (en banc) (rejecti ng a claim that the governme nt has the burden to come forward with additional evidence in a safe ty valve challenge if the government finds a defendant's proffer inadequate), cert. denied , 546 U.S. 1121 (2006). Razo offered no evidence and argued only that his guilty plea and acceptance of responsibility for his part in the conspiracy entitled him to safety valve relief.
The record supports the district court's conclusion that Razo knew more than he was telling, particularly about his own knowledge of the drugs. Razo handed a package containing crystal methamphetami ne wrapped in clear plastic to one individual and drove a car with 100 pounds of marijuana in the trunk from Omaha to Sioux City. He was present when the mar ijuana was transferred from the trunk of his car to another car. Officers who later c onfiscated the marijuana from the second car smelled the pungent aroma several feet away from the car. Although Razo denied knowing what "ice" or crystal methampheta mine was during his proffer interview, he told officers during his interview that he knew what cocaine and marijuana were. The record before the district court supporte d its finding that Razo was not being fully truthful during his proffer interviews. See United States v. Guerra-Cabrera, 477 F.3d 1021, 1025 (8th Cir. 2007) ("The district court was also entitled to infer untruthfulness from the implausibility of appellants' accounts."); Alvarado-Rivera, 412 F.3d at 947 ("Affirmance is required if the record supports the court's findings . . . .").4 Razo alternatively requests that we remand with instructions to allow him to withdraw his guilty plea and enter an Alfordplea. Such action would not change the other facts in the record that support the district court's conc lusion that Razo was not fully truthful. Further, Razo offers no authority that would allow us to order a remand for withdrawal of a guilty pl ea where the motion to withdraw was not first made to the district court. Cf. United States v. Washington , 515 F.3d 861, 864 (8th Cir.) (noting that a claim that a plea was involuntary is not cognizable on di rect appeal where defendant had not first presented a motion to withdraw the plea to the district court), cert. denied , 128 S. Ct. 2493 (2008). -7- As noted by the district court and acknowledged by Razo's counsel during the sentencing hearing, Razo's guilty plea to a drug trafficking conspiracy is inconsistent with his claim that he did not know he wa s transporting or delivering drugs. Contrary to Razo's assertions, the district court did not require that he enter an Alfordplea to be eligible for safety valv e relief; it merely noted the inconsistency between a guilty plea and his assertion of innocence. Incons istencies in the record support the district court's finding that Razo was not being fully truthful during his proffer interviews. See Sanchez , 475 F.3d at 981 (rejecting defendant's claim that he was only joking about negotiating a cocaine sale and that helacked knowledge of a cocaine transaction as inconsistent with the fa cts before the court). The district court's finding was not clearly erroneous, and we affirm th e denial of safety valve relief. 4
III. Rubio's Appeal Rubio argues on appeal that the districtcourt erred in assessing a four-level enhancement for being an organizer or leader of criminal activity involving five or more participants, see USSG § 3B1.1(a), a nd asserts in a related argument that the district court erred by treating factual stat ements in Rubio's PSR as admitted without requiring the Government to put on evidence of the facts supporting the role enhancement.-8- The district court considered certain facts from the PSR as admitted by Rubio because he failed to object to those specific facts as contai ned in the PSR. The district court relied on the factual allegations c ontained in paragraphs 27 through 29 and paragraph 31 of Rubio's PSR to establish th e number of participants involved in the criminal activity. Paragraphs 27 through 29 described a proffe r interview conducted with Ryan Kotalik, who reported his invol vement as well as the involvement of Marcela Gutierrez, Mike Barnett, Alex Nieves, Maureen Rattray, Thiphaphone Phimmasane, and Edgar Gonzalez in transporting marijuana. Paragraph 31 described a proffer interview with Ms. Phimmasane, where she told officers that she allowed Rubio and Razo to store two ba gs of marijuana in the trunk of a car parked in her garage. The Government must prove by a pre ponderance of the evidence each of the facts necessary to establish a sentencing enhancement. See United States v. Bledsoe , 445 F.3d 1069, 1073 (8th Cir. 2006). The Govern ment relied on facts contained in the PSR as well as the testimony of Agent Wagner in urging the district court to assess a four-level enhancement for Rubio's role in the offense under USSG § 3B1.1(a). In determining whether the Government has met its burden, the district court "may accept any undisputed portion of the [PSR] as a finding of fact." Fed. R. Crim. P. 32(i)(3)(A). "[U]nless a defendant objects to a specific factual allegation contained in the PSR, the court may accept that fact as true for sentencing purposes." United States v. Moser , 168 F.3d 1130, 1132 (8th Cir. 1999).
Rubio argues that he sufficiently challe nged the factual allegations in the PSR related to the role in the offense enha ncement by objecting to paragraphs 42 and 44. Paragraph 42 summarized the role in th e offense enhancement and recommended a three-level enhancement, and paragraph 44 me rely totaled the adjusted offense level. Rubio asserts that he impliedly objectedto the underlying factual paragraphs by objecting to these summary paragraphs. R ubio's objection to the summary paragraphs stated only that "[t]he Defendant should not be assessed a two point [sic] enhancement-9- as a leader or organizer. The Defendant s hould have an adjustedoffense level of 36 and not 40." (Dist. Ct. Docket Entry 67, Objections to Presentence Investigation Report at 2.) We have ne ver recognized "implied objections" to factual statements contained in a PSR. Rather, we require that objections to the PSR be made "with 'specificity and clarity'" before a district court is precluded from relying on the factual statements contained in the PSR. See United States v. Wajda , 1 F.3d 731, 732 (8th Cir. 1993) (quoting United States v. Toirac , 917 F.2d 11, 13 (8th Cir. 1990)). The purpose of the objection is to put the Government on notice of the challenged facts,
see United States v. Boyce , 507 F.3d 1101, 1102 (8th Cir. 2007), and Rubio's summary objection did not alert the Governme nt as to which specific facts it needed to substantiate at the hearing. Because R ubio "'objected not to the facts themselves,' but only to the report's 'recommendation based on those facts,'" Bledsoe , 445 F.3d at 1073 (quoting Moser , 168 F.3d at 1132), the district court appropriately accepted the specific factual allegations contained inparagraphs 27 thr ough 29 and 31 as true without further evidence by the Government.
Rubio also challenges as unsupported by th e record the district court's findings that the criminal activity involved five or more participants as well as the finding that he was an organizer or leaderas opposed to a manager or s upervisor. We review these findings, which must be supported by a preponde rance of the evidence, for clear error. See United States v. Garcia , 512 F.3d 1004, 1005 (8th Cir. 2008).
In addition to the factual allegations contained in the unobjected to paragraphs of the PSR, the Government also introdu ced the testimony of Agent Wagner, who conducted proffer interviews of Rubio and severa l other participants. Agent Wagner named Rubio, Razo, the CS, Marcela Gutierrez, Ryan Kotalik, Alex Nieves, and Janet Gonzales as involved in the criminal c onduct for which Rubio wa s sentenced. Rubio, Razo, and the CS were each directly involved in the transactions leading to Rubio's arrest. Wagner testified that one of the drug transactions with the CS was conducted at Gutierrez's residence and that most of the other named individuals transported drugs-10- from the Texas/Mexico border to the Om aha, Nebraska, area. The unobjected to portions of Rubio's PSR substantiated this te stimony. The district court did not clearly err in finding that the criminal conduct involved five or more participants.
Rubio claims that at most he was a supe rvisor or manager, but that he was not an organizer or leader, so that he should be subject to the three-level enhancement under USSG § 3B1.1(b) rather than the four-level enhancement under USSG § 3B1.1(a). "Factors the court should cons ider include the exercise of decision making authority, . . . the recruitment of accomplices, . . . the degree of participation in planning or organizing the offense, . . . and the degree of control and authority exercised over others." U SSG § 3B1.1, comment. (n. 4). The unobjected to portions of the PSR and Agent Wagner's testimony provided evidence that Rubio recruited Razo and directed him to make drug deliv eries; attempted to recruit the CS to transport drugs; made the decision to deliver drugs to the CS in Sioux City rather than in Omaha; supplied dealer-quantities of marijuana to Gutierrez; and recruited several other members of the conspiracy to transport drugs from Texas and Mexico to Omaha and to store the drugs. Faced with this evid ence, the district court did not clearly err in finding Rubio to be an organizer or leader of the criminal activity. See Garcia , 512 F.3d at 1006 (affirming district court's finding of a leader or organizer from evidence that the defendant recruited others to jo in the conspiracy, received drug orders, and directed others to package and deliver drugs); United States v. Noe , 411 F.3d 878, 889-90 (8th Cir.) (affirming four-level e nhancement for a defe ndant who controlled others in the conspiracy and supplied drugs to lower level dealers), cert. denied , 546 U.S. 892 (2005).

IV. Razo’s and Rubio’s sentences are each affirmed.

______________________________