UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee.

v. MARTIN PENA ASTORGA, Defendant - Appellant, No. 21-2026 (D.C. No. 2:19-CR-02747-KG-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , EBEL , and CARSON , Circuit Judges.

________________ _________________ Defendant Martin Astorga’s wife drove him to Colorado Springs to pick up fentanyl and heroin. He later pleaded gu ilty to conspiracy to distribute controlled substances. The district c ourt sentenced him to 136 months in prison, after applying U.S.S.G. § 3B1.1’s aggravating-role enha ncement. The district court further prohibited Defendant from associating w ith his co-conspira tors—including his wife—while on supervised release. Defe ndant appeals both the application of the enhancement and the superv ised-release condition.

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 21, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 12 Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the district court’ s application of the § 3B1. 1 enhancement but vacate its supervised-release condition restricting Defendant’s c ontact with his wife and remand for reconsideration.
I. On May 17, 2019, Defendant agreed ove r the phone to sell Alejandra Gomez $50–60 of narcotics and met he r at a Pic Quik station in Las Cruces, New Mexico, to complete the sale. Eleven days later, Go mez texted Defendant that someone wanted a “big one” and that she could “grab the ca sh” for Defendant. Defendant again told Gomez to meet him at the Pic Quik. Afte r Gomez left the park ing lot, Las Cruces Police stopped her. Gomez tried to run aw ay, but officers stoppe d her and found 5.6 grams of methamphetamine in her sock . The officers rele ased her without questioning to preserve th e ongoing investigation. On May 31, 2019, Defendant called Joanne Dunlap, hi s sister-in-law, to tell her that he planned to stop by her house at 4:00 P.M. to pick up the package he had sent there. Defendant had se nt her address to his supplie r so that the supplier could mail him heroin and fentanyl. In exchange , he offered to pay Joanne for letting him use her address. That same day, Drug Enforcement Admi nistration agents coordinated with the United States Postal Inspection Service (“USPIS”) to intercept packages directed to Joanne’s house. USPIS intercepted one package. Executing a federal search warrant, agents searched the package and found eight ounces of heroin and 500 fentanyl pills. Later that after noon, agents observed De fendant at Joanne’s Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 23 house and saw Joanne check her mailbox fiftee n minutes later. A few minutes later, Defendant left. That evening, Defendant talked to his wife, Jesse Dunlap, on the phone and told her that, like last time, th e package might be delayed. By June 13th, Defendant still had not received the package, so he asked his supplier if he could pick up the package in Phoenix. Eventually , his supplier agreed to have Defendant pick up 6 00 fentanyl pills in Colorado Springs. So on June 19th, Defendant and Jesse began driving from Ne w Mexico to Colorado Springs. Jesse drove while Defendant directed her where to go. When they arrived at the arranged address, an unknown female walked up to the white pick-up truck and handed Jesse a white plastic bag through the driver’s side window. De fendant and Jesse immediately left the parking lot after the trans action. As they entered New Mexico, agents coordinated with state police to c onduct a traffic stop. During the stop, the officer detected an odor of marijuana and searched the ve hicle, finding the plastic bag containing 124.6 grams of he roin and 480 fentanyl pills in Jesse’s purse. Jesse admitted to the officers that the bag belonged to her and that it contained heroin. Police released Jesse and Defenda nt and told them that the district attorney’s office would review the evidence. Immediately af terward, Defendant to ld his supplier that the police seized the heroin and fentanyl during the traffic stop and that Jesse took the blame for it. Nearly two years later, Defendant pleaded guilty to several counts of distributing fentanyl, heroin, and methamph etamine, and conspiracy to distribute controlled substances. Becaus e the district court determ ined Defendant supervised Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 34 Jesse, Joanne, and Gomez, it applied the aggravating-role enhancement under U.S.S.G. § 3B1.1(c) to Defendant’s se ntence, making his guideline imprisonment range 151 to 188 months. But after c onsidering the factors under 18 U.S.C. § 3553(a) and Defendant’s goo d-faith attempt to assist the government, the district court varied downward and sentenced Defendant to 136 months’ imprisonment followed by a five-year supe rvised-release term. As a supervised-release condition, the district court prohibited Defendant from having any communication or contact, direct or indirect, with any co-defenda nt or co-conspirator—including his wife, Jesse—without his probation officer’s perm ission. Defendant timely appealed his

sentence. II. We review the district court’s decisi on to apply the § 3B1.1(c) enhancement for clear error. United St ates v. Anderson, 189 F.3d 1201, 1211 (10th Cir. 1999) (citing United States v. Cruz Camacho, 137 F.3d 1220, 122 3–24 (10th Cir. 1998)). Clear error exists when the record does not support the factual finding or if, after considering all the evidence, we have a definite and firm conviction that the district court made a mistake. United States v. Lozano, 921 F.3d 942, 946 (10th Cir. 2019) (citing United States v. Za r, 790 F.3d 1036, 1046 (10th Ci r. 2015)). But when the district court’s account of the evidence is plausible ba sed on the entire record, we will not reverse even if we are convinced that we would have weighed the evidence differently. Anderson v. Bessemer City, 470 U. S. 564, 573–74 (1985). In other words, when two permissible views of th e evidence exist, “the factfinder’s choice Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 45 between them cannot be clearl y erroneous.” Id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949); Inwood Lab’ys, Inc. v. Iv es Lab’ys, Inc., 456 U.S. 844 (1982)). Thus, we give “great deference to the distri ct court’s application of the Guidelines to the facts.” Lozano, 921 F.3d at 946 (quoting United States v. Eaton, 260 F.3d 1232, 1237 ( 10th Cir. 2001)). Defendant raises two issues on appea l: whether the district court wrongly applied the aggravated-role enhancement un der § 3B1.1(c) to Defendant’s sentence and whether the district court violated Defendant’s fundamental right to familial association by forbidding contact with hi s wife without his probation officer’s permission while on supervised release. He raises a substantive and procedural challenge to each issue and concedes that he did not raise the procedural challenge to the first issue or any challenge to the second issue below. Thus, we review challenges that Defendant rais es for the first time for plai n error. Under the plainerror standard, Defendant “must demonstrate: (1) an error, (2) that is plain, meaning clear or obvious under current law, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Kearn, 863 F.3d 1299, 13 05 (10th Cir. 2017) (quoting United States v. Piper, 839 F.3d 1261, 1265–66 (10th Cir. 2016)).
III. We first address whether the district court erred substantively by applying the aggravating-role enhancement under § 3B 1.1(c) to Defendant’s sentence before determining whether it erred procedurally by failing to adequately explain its Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 56 application of § 3B1.1(c). Last, we consider whether the district court wrongly restricted Defendant’s right to associate with his wife as a condition of his supervised release.
A.
1. The district court did not clearly err wh en it applied § 3B1. 1(c)’s aggravatingrole enhancement to Defendant’s sentence. The Sentencing Guidelines direct a district court to increase a defendant’s sentence by two le vels “[i]f the defendant was an organizer, leader, manager, or supervis or in any criminal activity.” U.S.S.G. § 3B1.1(c). To determine whether this enhancement applies to a defendant’s conduct, a court should consider: the exercise of decision maki ng authority, the nature of participation in the commi ssion of the offense, the recruitment of accomplices, th e claimed right to a larger share of the fruits of the crim e, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, a nd the degree of control and authority exercised over others. § 3B1.1 cmt. 4. “In considering these fa ctors, the sentencing court should remain conscious of the fact that th e gravamen of this enhancemen t is control, organization, and responsibility for the actions of other individuals[.]” United States v. Anderson, 189 F.3d 1201, 1211 (10th Cir. 1999) (quoting United States v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995)). A defendant qualif ies as a “supervisor” when he has “exercised any degree of direction or control ove r someone subordinate to him.” Lozano, 921 F.3d at 948 (quoting United Stat es v. Backas, 901 F.2d 1528, 1530 (10th Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 67 Cir. 1990)). So for the enhancement to apply, Defendant “need only manage or supervise one participant.” United States v. Gonzalez Edeza, 359 F.3d 1246, 1248– 49 (10th Cir. 2004) (citing Cruz Camacho, 137 F.3d at 1224). Here, the presentence report’s offense- level computation provided for a twolevel increase under § 3B1.1(c) for Defendant’s role in th e offense as an organizer, leader, manager, or supervisor. Defenda nt objected to that portion of the PSR because his dealing with Gomez did not qua lify him for the enhancement. At the sentencing hearing, the district court cl arified that the Addendum to the PSR specified that Defendant’s interaction with Jesse and Joanne Dunlap, along with Gomez, supported the § 3B1.1(c) enhancemen t. The district court noted that there was no dispute as to the facts and determined that Defendant’s s upervision of Jesse, Joanne, and Gomez justified the enhancemen t. Defendant argues the district court clearly erred in applying § 3B 1.1(c) here because the fact s do not show he acted as anyone’s supervisor. He also contends no evidence exists to show that he exercised control or organizational authority over Jesse, Joanne, or Gomez. But Defendant need only have supervis ed one participant to qualify for the enhancement—and the record amply supports th at he supervised Jesse. See Gonzalez Edeza, 359 F.3d at 1248–49 (citing Cruz Ca macho, 137 F.3d at 1224). Defendant’s testimony at the sentencing hearing rev ealed that Jesse had no contact with Defendant’s supplier because she does not speak Spanish; she drove Defendant to Colorado Springs because he does not have a driver’s license; a nd she knew where to go and when to leave because Defendant told her. Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 78 Still, Defendant argues that Jesse was not his subordi nate, only his wife; that no evidence shows she accompanied him to Colorado Springs because he ordered her to; and that her participation was too isol ated to establish a supervisor-subordinate relationship. Defendant also cites out-of-c ircuit authority to argue that § 3B1.1’s intent is not to punish pr oviding another person with information. Defendant’s argument fails, however, because our precede nt provides that so meone qualifies as a “supervisor” under § 3B1.1 if he exercised “ any degree of direction or control over someone subordinate to him.” Lozano, 921 F.3d at 948 (quoting Backas, 901 F.2d at 1530). The evidence shows that Defendant directed Jesse when and where to go as she drove him to pick up the drugs in Colorado Springs. Because any degree of control or direction is suffi cient, the record supports th e district court’s conclusion that Defendant functioned as a supervisor under § 3B1.1. A nd we have already determined that “a single criminal endeavor” may trigger §3B1.1’s enhancement– “sustained criminal conduct is not necessary.” United St ates v. Mar quez, 833 F.3d 1217, 1223 (10th Cir. 2016). Thus, the district c ourt did not clearly err when it applied § 3B1.1(c)’s aggravating-role e nhancement to Defenda nt’s sentence.
2. Regardless of whether the district c ourt erred by applying the enhancement, Defendant urges us to revers e because the district court failed to adequately explain why it applied the enhancement. But De fendant did not rais e this procedural complaint before the district court. When a party does not raise a legal theory before the district court, we cons ider it forfeited on appeal, and will reverse only if the Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 89 district court plainly erre d. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“To show plain error, a party mu st establish the presence of (1) error, (2) that is plain, which (3) affe cts substantial rights, and which (4) seriously affects the fairness, integrity , or public reputation of j udicial proceedings.”). For purposes of our analysis, we will assume the district court did not adequately explain the factual basis supporting the enhancement; 1 and that its failure to do so satisfies prong one and tw o of our plain error test. But to prevail, Defendant must also show that the error affected his substantial rights. “[T]o show that an error affected his substan tial rights, [Defendant] must establish a reasonable probability that, but for the erro r claimed, the result of the proceeding would have been different.” Marquez, 833 F.3d at 1221 (quoting United States v. Uscanga–Mora, 562 F.3d 1289, 12 95 (10th Cir. 2009)). And “[i]n the context of sentencing enhancements, if ‘[t ]he defendant . . . received a sentence merited by the evidence . . . we cannot say . . . that, but for the claimed error, the defendant’s sentence would ha ve been any different.’” Id. (quoting Uscanga-Mora, 562 F.3d at 1295). Defendant’s position fails at this step. Here, as demonstrated by our conclusion that the evidence showed Defenda nt directed Jesse, Defendant received a

1 We have held that “a district court ‘must make specific findings and advance a factual basis to support an enhancement under U.S.S.G. § 3B1.1.’” Marquez, 833 F.3d at 1221 (quoting United States v. Chisum, 502 F.3d 12 37, 1242 (10th Cir. 2007)). And “even if the record overw helmingly supports the enhancement, appellate fact-finding cannot substitute for the district court’s duty to articulate clearly the reasons for the e nhancement.” Id. (quoting Chisum, 502 F.3d at 1242). Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 910 sentence merited by the evidence. So, “we ca nnot say—as we would have to in order to reverse his sentence for plain error—that [Defendant ’s] substantial rights were violated.” Id. at 1223; United States v. Gehrmann, 966 F.3d 1074, 1083–85 (10th Cir. 2020) (third pr ong of plain error not sati sfied where evidence supports application of enhancement.). Thus, Defenda nt’s procedural challenge fails, and we need not consider the remaining prong. 2
B. Defendant next argues that the district court wrongly restricted his right to associate with his wife as a supervised-release condition: procedurally because the district court failed to ma ke the particularized findings necessary to support that restriction and substantively because the record has no su fficient findings to support such a restriction. Defendant raised ne ither argument below, so we review both challenges to the condition for plain error. We conclude the di strict court plainly erred by failing to make particularized findings justifying the condition. “A district court has broad discretion to impose conditions on supervised release.” United States v. Burn s, 775 F.3d 1221, 1223 (10th Cir. 2014) (citing United States v. Mike, 632 F.3d 686, 692 (10t h Cir. 2011)). “But when a court imposes a special

2 Defendant’s position fails fo r another reason as well. In assessing whether an appellant has met its burden of establishing pr ong three of our plain error test, we have been clear that the party seeking relief must do more than advance a bare assertion that the outcome in the district court was somehow affected by the district court’s insufficient statement of reasons. See United States v. Mendoza, 543 F.3d 1186, 1195 (10th Cir. 2008). With respect to Jesse, Defendant o ffers only a two-sentence conclusion that no evidence supports the enhancement. This is precisely the type of conclusory argument we have held insufficient to demonstrate an impact on a party’s substantial rights. Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 1011 condition that invades a fundamental right or liberty interest, [i t] must justify the condition with compelling circumstances.” Id. (citing Mike, 632 F.3d at 696). A defendant has a fundamental right to familia l association. United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir. 2011) (citing United St ates v. Smith, 606 F.3d 1270, 1283–84 (10th Cir. 2010)). That right includes spouses. See Griffin v. Strong, 983 F.2d 1544, 1548 (10th Cir. 1993). Thus, a distri ct court may only impose special conditions interfering with a defendant’s right to a ssociate with his sp ouse in compelling circumstances after making particularized findings. See Burns, 775 F.3d at 1222. Here, as a condition of supervised release, the district court prohibited Defendant from having any communication or contact, indi rect or direct, with any codefendant or co-conspirator, including his wi fe, Jesse. The court noted that before Defendant had any contact with Jesse, or anyone else involved in this cons piracy, he would need his probation officer’s permission. But this discussion only describe d the condition without explaining the need for it. Later, Defendant’s counsel expressed concer n and asked if the parties could soften their attitude toward communication between Defendant and Jesse. The district court acknowledged that Defendant and his wife s hould be able to communicate with each other with permission from the probation o fficer. The court explained it imposed a restriction because any co-conspirators should not be able to communicate if it could be furthering a conspiracy. But explaining the utility of prohibiting co-conspirators from communicating does not justify the need for interfering with Defendant’s spousal relationship. The district court committed pl ain error by failing to make particularized Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 1112 findings justifying the need for the condition. See Burns, 775 F.3d at 1223 (“An error is plain if it is ‘clear and obvious under curre nt law.’” (quoting United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003))). The government concedes the district cour t failed to make particularized findings justifying the condition limiting Defendant’s contact with Je sse—fulfilling the first two plain-error prongs—and advocates remanding to the district court for reconsideration of the condition. The government also conced es that the record allows a reasonable probability that the outcome would have been different had the court made such findings—satisfying plain error’s third prong— and that this possibility also carries Defendant’s burden under plain error’s last pron g. Thus, we determine the district court committed plain procedural e rror by failing to make partic ularized findings explaining the need for restricting Defendant’s c ontact with his wife and “remand for reconsideration of the supervised-release condition requiring [Defendant] to obtain permission from the probation office before he can contact [his wife].” Burns, 775 F.3d
at 1225. 3 In sum, we affirm the § 3B1.1(c) aggr avating-role enhancement of Defendant’s sentence but vacate the supervised-release cond ition restricting Defendant’s contact with his wife and remand for reconsideration.

3 Because we vacate the s upervised-release condition restricting Defendant’s contact with his wife based on the district court’s plain procedural error and remand for reconsideration, we do not reach Defe ndant’s substantive challenge that the record contains insufficient fi ndings to justify the condition. Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 1213 AFFIRMED in part, VACATED in part, and REMANDED.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 21-2026 Document: 010110787303 Date Filed: 12/21/2022 Page: 13