United States Court of Appeals

For the Eighth Circuit

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No. 16-1589

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jesus Adam Lizarraga

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

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 Submitted: January 13, 2017

 Filed: April 6, 2017 

[Unpublished]

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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM. 

Jesus Adam Lizarraga pleaded guilty to conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and

to money laundering in violation of 18 U.S.C. § 1956(a)(3)(B). The district court1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa. 
sentenced him to 264 months’ imprisonment on the conspiracy charge and a

concurrent 240 months on the money-laundering charge. Lizarraga challenges his

sentence. We affirm. 

In late 2013, Chad Weyland, Seth Beard, and Sara Weissenfluh were

distributing “ice” methamphetamine (ice) in and around Waterloo, Iowa. Lizarraga,

who lived in California, recruited Weyland and Beard to distribute ice for him in

Iowa. Weyland and/or Beard made at least three trips to Omaha, Nebraska, between

December 2013 and April 2014, each time obtaining between three and five pounds

of ice from Lizarraga. Weyland and Beard later had a falling out, and Lizarraga

instructed Beard not to work with Weyland any longer.

In April 2014, Weissenfluh drove from Iowa to California to obtain five

pounds of ice from Lizarraga. Lizarraga “and his associatesin California” hid the ice

in the spare tire of Weissenfluh’s vehicle before she drove back to Iowa. Weissenfluh

and Beard then sold the ice in Iowa, where Lizarraga later arrived to collect the

proceeds from these sales. Weissenfluh drove to California to obtain ice from

Lizarraga again in May 2014. The ice was again concealed in the spare tire of

Weissenfluh’s vehicle, but this time Lizarraga directed Weissenfluh to drive the ice

back to Iowa and then to wait for him to provide further instructions regarding

distribution of the drugs. On the return drive, Weissenfluh wasstopped by Mesquite,

Nevada, law enforcement officers for a traffic violation. After a drug dog alerted to

Weissenfluh’s vehicle, officers obtained a warrant, searched the vehicle, and

recovered just under five pounds of 100% pure ice methamphetamine from the spare

tire in the trunk. Weissenfluh thereafter began cooperating with law enforcement

officers. She informed officers in July 2014 that Lizarraga had called and instructed

her to deposit cash into the U.S. Bank account for “Christopher Grande” as payment

for a portion of the ice that, unbeknownst to Lizarraga, had been seized from

Weissenfluh’s vehicle in May 2014. An officer followed Lizarraga’s instructions to

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Weissenfluh and deposited $5,000 in government funds into the “Christopher

Grande” U.S. Bank account.

In February 2015, Lizarraga contacted Weissenfluh and asked to meet with her

in Waterloo. Weissenfluh notified officers, who provided her with a recording

device. During the meeting, Lizarraga offered to “front” one pound of ice, which

Weissenfluh would sell in Iowa on his behalf. Later that day, Lizarraga provided the

ice, for which Weissenfluh agreed to pay $12,000. Weissenfluh paid Lizarraga a total

of $10,500 in government cash in two installments. Lizarraga gave Weissenfluh a

note listing a “Hispanic name” and a Mexican bank account and instructed her to

deposit the remaining $1,500 in that account. Weissenfluh wired $1,500 in

government funds as instructed on March 10. 

Lizarraga contacted Weissenfluh again in June 2015 and offered to supply her

with two pounds of ice. Weissenfluh notified officers, who set up surveillance on

Lizarraga’s hotel room after he arrived from California. Lizarraga arranged to meet

Weissenfluh on June 28 to deliver the ice. Lizarraga wasstopped by officers en route

to the meeting. After a drug dog alerted to Lizarraga’s vehicle, officersrecovered two

packages of ice from a backpack in the vehicle. A later search of Lizarraga’s hotel

room pursuant to a warrant led to the recovery of an additional three packages of ice

for a total of almost five pounds of 99.6% pure ice methamphetamine. 

Lizarraga entered into an agreement with the government, pleading guilty to

the drug-conspiracy and money-laundering charges and stipulating to the facts set

forth above. A presentence report (PSR) was then prepared, which set forth the

offense conduct in more detail. The PSR recommended application of a three-level,

aggravating-role adjustment under § 3B1.1(b) of the U.S. Sentencing Guidelines

Manual (Guidelines or U.S.S.G.) based on Lizarraga’s role as a “manager or

supervisor” of criminal activity that involved “five or more participants or was

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otherwise extensive.” Lizarraga objected to the adjustment, but he did not contest any

of the underlying facts upon which it was based.

The parties presented no additional evidence at the sentencing hearing, relying

instead on the stipulated facts set forth in the plea agreement and the uncontested

facts set forth in the PSR. The district court applied the aggravating-role adjustment

over Lizarraga’s objections, finding “by a preponderance of the evidence” that

Lizarraga managed or supervised “criminal activity involving five or more

participants or a criminal conduct that was otherwise extensive.” Lizarraga’s

resulting advisory Guidelines sentencing range was 235 to 293 months’

imprisonment. After “examin[ing] the case as a whole,” and considering the parties’

briefs on the issue, the district court found “no basis for a [downward] variance in this

case.” The court then discussed the § 3553(a) sentencing factors and concluded that

the sentence that was “sufficient, but not greater than necessary, to achieve the goals

of sentencing [was] a mid-range sentence of 264 months” on the drug-conspiracy

charge and a concurrent sentence of 240 months on the money-laundering charge. 

Lizarraga argues that the district court erroneously applied the aggravating-role

adjustment, improperly presumed that a Guidelines sentence was reasonable, and

failed to adequately explain the basis for its sentencing decision. 

“‘The district court’s factual findings, including its determination of a

defendant’s role in the offense, are reviewed for clear error,’ while its ‘application of

the guidelines to the facts is reviewed de novo.’” United States v. Gaines, 639 F.3d

423, 427-28 (8th Cir. 2011) (quoting United States v. Bolden, 622 F.3d 988, 990 (8th

Cir. 2010) (per curiam)). The court’s factual findings “must be supported by a

preponderance of the evidence,” and we will disturb those findings only if they are

“unsupported by substantial evidence, [are] based on an erroneous view of the

applicable law, or [if] in light of the entire record, we are left with a firm and definite

conviction that a mistake has been made.” United States v. Starks, 815 F.3d 438, 441

(8th Cir. 2016) (quoting United States v. Walker, 688 F.3d 416, 421 (8th Cir. 2012)). 

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The district court may accept as true for sentencing purposes those specific factual

allegations set forth in the PSR to which the defendant does not object. See United

States v. Pepper, 747 F.3d 520, 523 (8th Cir. 2014). 

Based on the factual stipulations set forth in the plea agreement and the

uncontested facts set forth in the PSR, the district court found that an aggravating-role

adjustment under § 3B1.1(b) was appropriate. Lizarraga recruited Weyland and

Beard to distribute ice for him in Iowa and later instructed Beard not to work with

Weyland. Lizarraga “and his associates in California” hid ice in Weissenfluh’s

vehicle, Lizarraga directed Weissenfluh to drive the second shipment of ice to Iowa

and then wait for his further instructions regarding distribution, and Lizarraga

directed Weissenfluh to deposit drug proceeds in particular bank accounts. These

facts were sufficient to prove by a preponderance that Lizarraga was a manager or

supervisor for purposes of the § 3B1.1 aggravating-role adjustment. See Bolden, 622

F.3d at 990 (noting that “the simple fact that a defendant recruits new members into

a conspiracy supports a finding” that he was a manager or supervisor); U.S.S.G.

§ 3B1.1 cmt. n.4 (noting that “the exercise of decision making authority” and “the

degree of control and authority exercised” over other participants in criminal activity

weighs in favor of the adjustment). 

The factual stipulations set forth in the plea agreement and the uncontested

facts set forth in the PSR also indicated that the drug conspiracy involved five or

more participants, namely, Lizarraga, Weissenfluh, Beard, Weyland, and 

“[Lizarraga’s] associates in California,” who helped hide ice in Weissenfluh’s spare

tire. These facts were sufficient to prove by a preponderance that Lizarraga managed

or supervised criminal activity involving five or more participants, even though the

California associates were not identified by name. See, e.g., United States v. CortezDiaz, 565 F. App’x 741, 750 (10th Cir. 2014) (affirming application of the § 3B1.1

adjustment even though last names of two participants were unknown); United States

v. Thomas, 373 F. App’x 538, 540-41 (6th Cir. 2010) (upholding aggravating-role

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adjustment based on eleven possible participants, including two with unknown last

names); United States v. Mansoori, 304 F.3d 635, 668 (7th Cir. 2002) (noting that “in

some cases, the evidence may leave no doubt that the defendant directed another

culpable participant but may not reveal that person’s name” and citing cases); United

States v. Fells, 920 F.2d 1179, 1182-83 (4th Cir. 1990) (affirming application of

aggravating-role adjustment where district court found that unnamed “lower-level

drug dealers” were participants). 

In addition to establishing that there were five or more participants, the

evidence was also sufficient to show that the criminal activity was “otherwise

extensive” for purposes of the § 3B1.1 aggravating-role adjustment. The “nature and

complexity of the operation and its geographical reach” are relevant in determining

whether the activity was extensive. United States v. Rosas, 486 F.3d 374, 377 (8th

Cir. 2007) (quoting United States v. Vasquez-Rubio, 296 F.3d 726, 729 n.3 (8th Cir.

2002)). Lizarraga, as well as participants acting on his behalf, traveled between

California and Iowa to retrieve or deliver large quantities of high-purity ice and

proceeds from drug sales, and Lizarraga directed that proceeds from drug sales be

deposited in or wired to both U.S. and Mexican bank accounts opened in other

peoples’ names. These facts were sufficient to prove by a preponderance that the

criminal activity was “otherwise extensive” for purposes of the § 3B1.1 aggravatingrole adjustment. 

Lizarraga also challenges his sentence, arguing that the district court erred by

failing to adequately explain the basis for its sentencing decision, by presuming that

a Guidelines sentence was reasonable, and by failing to properly consider the

18 U.S.C. § 3553(a) sentencing factors. We review the district court’s sentencing

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Lizarraga concedesthat because he did not object before the district court, the

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plain-error standard of review applies to his claims that the court did not adequately

explain its sentencing decision and that it applied a presumption of reasonableness

to the Guidelines sentence. See United States v. Pate, 518 F.3d 972, 975 (8th Cir.

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determinations under a deferential abuse-of-discretion standard, first ensuring that the

court committed “no significant procedural error,” and then considering the

“substantive reasonableness” ofthe ultimate sentence. Gall v. United States, 552 U.S.

38, 51 (2007).

After properly calculating the Guidelines range, the court noted that it was

required to “examine the case as a whole” in light of the § 3553(a) factors and

determine “whether or not [it] must vary from the advisory guideline range” to

impose an appropriate sentence. The court expressly considered Lizarraga’s various

arguments in support of a downward variance, it discussed several of the § 3553(a)

factors in detail, and it finally stated that, “[a]fter considering all the statutory factors,

everything [it knew] about the case and all the arguments made orally and in writing,

. . . the sentence that is sufficient, but not greater than necessary, to achieve the goals

of sentencing is a mid-range sentence of 264 months.” Contrary to Lizarraga’s

arguments, the court did not presume that a Guidelines sentence was reasonable,

noting instead that it was not bound by the Guidelines and that they were “one of

several factors” that the court was required to consider. See, e.g., United States v.

Shiradelly, 617 F.3d 979, 983 n.5 (8th Cir. 2010) (per curiam) (“The district court

acknowledged it was free to vary from the guidelinesrange, and the mere conclusion

that an ultimate sentence is reasonable is not equivalent to presuming the guidelines

range to be reasonable.”). 

Nor did the court inadequately explain its sentencing decision. The court stated

that it had considered all of the § 3553(a) factors, Lizarraga’s arguments for a

downward variance, the facts and history set forth in the PSR, and the drug quantity

involved in the conspiracy, and it concluded that a sentence in the middle of the

2008) (“We review for plain error an argument not raised at sentencing.”). Because

these claims fail under any standard of review, we consider all of Lizarraga’s

sentencing arguments under the abuse-of-discretion standard of review. 

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advisory Guidelines range was appropriate. District courts are given “wide latitude”

to weigh the § 3553(a) factors, including the latitude to assign some factors more or

less weight than a defendant would prefer. See United States v. Anderson, 618 F.3d

873, 883 (8th Cir. 2010). Moreover, “when a judge decides simply to apply the

Guidelines to a particular case, doing so will not necessarily require lengthy

explanation.” Rita v. United States, 551 U.S. 338, 356 (2007); see also Anderson,

618 F.3d at 882-83 (noting that a district court “need not categorically rehearse each

of the § 3553(a) factors on the record when it imposes a sentence as long as it is clear

that they were considered” (citations omitted)). The district court committed no 3

procedural error, the sentence is not substantively unreasonable. 

The judgment is affirmed. 

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To the extent Lizarraga argues that the Guidelines are unsupported by 3

empirical evidence and result in unduly severe sentences for methamphetamine

offenses, these policy arguments are not properly made to this Court. See United

States v. Coleman, 635 F.3d 380, 383 (8th Cir. 2011). Although the district court

could have varied from the Guidelines based on such a policy disagreement, it was

not required to do so. See id.

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