United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2881

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United States of America,

Appellee,

v.

Reynoldo Razo-Guerra,

Appellant.

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No. 07-2978

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United States of America,

Appellee,

v.

Andres Rubio-Guerrero, also

known as Manuel Rubio,

Appellant.

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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.

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Submitted: May 15, 2008

 Filed: July 25, 2008

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Before RILEY, HANSEN, and ARNOLD, Circuit Judges. 

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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 court1

 sentenced them to 240 months and 135

months of imprisonment, respectively. Each 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 transported the marijuana from Texas, but he was

involved in numerous drug transactions with Rubio and Razo. The CS met Rubio on

September 26, 2006, and they traveled together to meet Razo, who delivered a plastic

bag to the CS containing 447.5 grams of 44% pure methamphetamine. On October

2, 2006, the CS made arrangements to receive 100 pounds of marijuana and one-half

to one pound of crystal methamphetamine from 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 City, 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 day, October 4, Rubio offered the CS two

more pounds of crystal methamphetamine, which 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 traffic stop on October 4, and the officers

recovered identifiable cash from both defendants that the CS had used to pay Rubio.

In a proffer interview, Razo informed officers that he had entered the United States

illegally a few months prior to his arrest and that he mowed lawns 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 not smell marijuana while he was transporting

the bags. When asked when he last handled "ice," Razo responded one and one-half

weeks prior. He also reported taking a bag 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 contained cash. Razo denied helping 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 June 29, Razo claimed that he did 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-Miranda2

 interview that he had been living for three

days in a hotel in Sioux City, that he had been in the United States for ten years, and
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that he was unemployed. Rubio refused to answer any other questions about the

instant offense. Drug Enforcement Agency 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 methamphetamine from Rubio. 

Both defendants pleaded guilty without a plea agreement. At Razo'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 five participants, and it increased his base

offense level by four levels 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 his 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 sentence 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 Government all information and evidence [he] ha[d]

concerning the offense or offenses that were part of the same course of conduct." 18

U.S.C. § 3553(f)(5). We review for clear error the district court's finding that Razo

was not truthful about his involvement in the drug trafficking conspiracy during his
3

North Carolina v. Alford, 400 U.S. 25 (1970).

-5-

two proffer interviews with the government. See United States v. Sanchez, 475 F.3d

978, 980 (8th Cir. 2007). 

During the two proffer interviews, Razo told 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 methamphetamine 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 Rubio were arrested. Razo argues that he nevertheless took

responsibility for his involvement in the conspiracy 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 sentencing hearing was the testimony of Agent

Dan Wagner, who testified that he did not believe that Razo did not know he was

transporting marijuana based on the strong odor emitted by such a large quantity of

marijuana in the trunk of a car. He testified that Ms. Gutierrez told him that Razo

delivered the car containing the marijuana to her residence and that Razo was present

when the drugs were transferred 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 cross-examined Agent

Wagner but offered no additional evidence. The district court found Razo's claim that

he did not know he was transporting drugs to be inconsistent with his guilty plea,

which included knowledge of the drugs as an element of the conspiracy. The district

court commented that Razo would have a more persuasive argument if he had entered

an Alford3

 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 hearing of establishing each of the five

requirements for safety valve relief by a preponderance of the evidence. Sanchez, 475

F.3d at 980. Razo's assertion that Agent 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) (rejecting a claim that the government has the burden to come

forward with additional evidence in a safety 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 methamphetamine 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 marijuana was transferred from the trunk of his

car to another car. Officers who later confiscated the marijuana from the second car

smelled the pungent aroma several feet away from the car. Although Razo denied

knowing what "ice" or crystal methamphetamine 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 supported 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 Alford plea. Such action would not change the

other facts in the record that support the district court's conclusion that Razo was not

fully truthful. Further, Razo offers no authority that would allow us to order a remand

for withdrawal of a guilty plea 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 direct appeal where

defendant had not first presented a motion to withdraw the plea to the district court),

cert. denied, 128 S. Ct. 2493 (2008).

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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 was transporting or delivering drugs. Contrary

to Razo's assertions, the district court did not require that he enter an Alford plea to

be eligible for safety valve relief; it merely noted the inconsistency between a guilty

plea and his assertion of innocence. Inconsistencies 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 he lacked knowledge of a cocaine transaction

as inconsistent with the facts before the court). The district court's finding was not

clearly erroneous, and we affirm the denial of safety valve relief.4

III. Rubio's Appeal

Rubio argues on appeal that the district court 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), and asserts in a related argument that the

district court erred by treating factual statements 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 contained in the PSR. The district

court relied on the factual allegations contained in paragraphs 27 through 29 and

paragraph 31 of Rubio's PSR to establish the number of participants involved in the

criminal activity. Paragraphs 27 through 29 described a proffer interview conducted

with Ryan Kotalik, who reported his involvement 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 bags of marijuana in the trunk of a car parked in her

garage. 

The Government must prove by a preponderance 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 Government 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 challenged the factual allegations in the PSR

related to the role in the offense enhancement by objecting to paragraphs 42 and 44.

Paragraph 42 summarized the role in the offense enhancement and recommended a

three-level enhancement, and paragraph 44 merely totaled the adjusted offense level.

Rubio asserts that he impliedly objected to the underlying factual paragraphs by

objecting to these summary paragraphs. Rubio's objection to the summary paragraphs

stated only that "[t]he Defendant should not be assessed a two point [sic] enhancement
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as a leader or organizer. The Defendant should have an adjusted offense level of 36

and not 40." (Dist. Ct. Docket Entry 67, Objections to Presentence Investigation

Report at 2.) We have never 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 Government as to which specific facts it needed

to substantiate at the hearing. Because Rubio "'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 in paragraphs 27 through 29 and 31 as true

without further evidence by the Government. 

Rubio also challenges as unsupported by the 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 leader as opposed to a manager or supervisor. We review these

findings, which must be supported by a preponderance 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 introduced the testimony of Agent Wagner, who

conducted proffer interviews of Rubio and several other participants. Agent Wagner

named Rubio, Razo, the CS, Marcela Gutierrez, Ryan Kotalik, Alex Nieves, and Janet

Gonzales as involved in the criminal conduct for which Rubio was 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
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from the Texas/Mexico border to the Omaha, Nebraska, area. The unobjected to

portions of Rubio's PSR substantiated this testimony. 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 supervisor 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 consider 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." USSG § 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 deliveries; 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 evidence, 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 join 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 enhancement for a defendant 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.

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