UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4112

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ESTEBAN SALGUERO-ORTIZ, a/k/a Cadejo,

Defendant - Appellant.

No. 11-4288

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMIN OLIVA-MADRID,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. James C. Cacheris, Senior 

District Judge. (1:10-cr-00191-JCC-9; 1:10-cr-00191-JCC-6)

Argued: May 18, 2012 Decided: June 21, 2012

Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit 

Judges.
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Affirmed by unpublished per curiam opinion.

ARGUED: David Benjamin Smith, SMITH & ZIMMERMAN, PLLC, 

Alexandria, Virginia; Gregory Bruce English, THE ENGLISH LAW 

FIRM, PLLC, Alexandria, Virginia, for Appellants. Chad Golder, 

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for 

Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, 

Karen L. Dunn, Assistant United States Attorney, Courtney 

Weiner, Special Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jamin Oliva-Madrid (“Oliva”) and Esteban Salguero-Ortiz 

(“Salguero”) were convicted and sentenced for conspiracy to 

distribute cocaine. On appeal, Salguero contends that the 

evidence supporting his conviction was insufficient, and Oliva 

and Salguero also challenge their sentences on various grounds. 

For the reasons that follow, we affirm.

I.

Oliva and Salguero were two of fifteen people indicted in a 

cocaine distribution scheme that involved importing cocaine from 

Mexico into Texas and distributing it in Maryland, Northern 

Virginia, Philadelphia, and elsewhere. Oliva was involved in 

the conspiracy in Virginia, where he owned a granite business 

called JD Granite Countertops, Inc. that was used to further the 

conspiracy. Salguero played a lesser role in the conspiracy in 

the Philadelphia area. 

After a jury trial, both Oliva and Salguero were convicted 

of conspiracy to distribute five kilograms or more of cocaine, 

in violation of 21 U.S.C. §§ 841(a)(1), 846. At sentencing, the 

district court found Oliva accountable for at least sixty

kilograms of cocaine, applied a three-level enhancement for his 

managerial role in the conspiracy, and imposed a belowguidelines sentence of 188 months’ imprisonment. The court 
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found Salguero accountable for fifteen kilograms of cocaine and 

sentenced him to 151 months’ imprisonment, the low end of the 

advisory sentencing range.

II.

 We begin by addressing Oliva’s claim that the district 

court made two errors at sentencing. Oliva first argues that 

the district court improperly attributed sixty kilograms of 

cocaine to him. He also maintains that the district court erred 

in applying an aggravating role enhancement. We address the 

drug quantity claim first.

A.

“We review the district court's calculation of the quantity 

of drugs attributable to a defendant for sentencing purposes for 

clear error.” United States v. Slade, 631 F.3d 185, 188 (4th 

Cir. 2011) (internal quotation marks omitted). Oliva is in 

agreement with the government that the evidence at trial proved 

that Javier Maldonado, a co-conspirator, transported cocaine 

from Texas to Virginia on ten different occasions. Oliva 

disputes, however, the average quantity of cocaine that was 

transported in each trip. 

At sentencing, the district court attributed sixty

kilograms of cocaine to Oliva, but Oliva contends that he could 

only be accountable for forty to fifty kilograms of cocaine 
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based on a statement made by Maldonado that, on average, only 

four to five kilograms were transported in each trip. In 

another portion of Maldonado’s own testimony, however, he stated 

that the average amount of cocaine transported per trip was “5 

kilos, 6 kilos.” J.A. 80. Moreover, contrary to Oliva’s 

contention that the maximum amount of cocaine transported in any 

given trip to Virginia was seven kilograms, there is evidence in 

the record that ten kilograms of cocaine were transported in a 

single trip to Virginia. Under these circumstances, we cannot 

say that the district court committed clear error in attributing 

sixty kilograms of cocaine to Oliva. See United States v. 

Randall, 171 F.3d 195, 210 (4th Cir. 1999) (“A district court’s 

approximation of the amount of drugs is not clearly erroneous if 

supported by competent evidence in the record.”); see also

United States v. Uwaeme, 975 F.2d 1016, 1019 (4th Cir. 1992) 

(“Neither the Guidelines nor the courts have required precise 

calculations of drug quantity.”).

In any event, even if the district court’s drug quantity 

calculation was clearly erroneous, the error would be harmless. 

See United States v. Cabrera-Beltran, 660 F.3d 742, 756 (4th 

Cir. 2011) (applying harmless error doctrine to drug quantity 

calculation). Under the assumed error harmlessness inquiry, we 

consider (1) whether “the district court would have reached the 

same result even if it had decided the guidelines issue the 
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other way,” and (2) whether “the sentence would be reasonable 

even if the guidelines issue had been decided in the defendant's 

favor.” United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011) (internal quotation marks omitted). The 

district court stated in its sentencing order that “even if 

Defendant were correct regarding drug quantity . . ., this Court 

would still impose a sentence of 188 months[’] imprisonment.” 

J.A. 567D. The court also imposed a below-guidelines sentence 

to create parity between Oliva’s sentence and that of a coconspirator whom the court believed to be equally as culpable as 

Oliva. On appeal, Oliva does not challenge the substantive 

reasonableness of his sentence, and we find that it would be 

reasonable even accepting Oliva’s drug quantity calculation. 

Therefore, any error in the drug calculation would be harmless. 

See United States v. Mehta, 594 F.3d 277, 283 (4th Cir. 2010) 

(noting that “error is harmless if the resulting sentence was 

not longer than that to which the defendant would otherwise be 

subject” (alteration and internal quotation marks omitted)). 

B.

Oliva also challenges the district court’s application of 

an aggravating role enhancement, which provides, in pertinent 

part, that “[i]f the defendant was a manager or supervisor (but 

not an organizer or leader) and the criminal activity involved 

five or more participants or was otherwise extensive, increase 
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by 3 levels.” U.S.S.G. § 3B1.1(b) (2010). We review this claim 

for clear error. See United States v. Sheffer, 896 F.2d 842, 

846 (4th Cir. 1990).

There is no dispute that this criminal conspiracy was 

“otherwise extensive.” Oliva contends, however, that he was not 

a “manager or supervisor.” We disagree. Oliva recruited his 

girlfriend, Nuria, to sell cocaine in Manassas, Virginia; he 

supervised Nuria’s activities for a period of time; and he wrote 

several checks amounting to $57,000 to the leader of the 

conspiracy, Jorge Gutierrez, in order to pay for cocaine. 

Given these facts, we find that the district court did not 

clearly err in applying the sentence enhancement. See U.S.S.G. 

§ 3B1.1 cmt. n.4 (discussing decision-making authority and 

recruitment of accomplices).

In any event, the district court explained at sentencing 

that “even if Defendant were correct . . . regarding his role in 

the offense as being minor relative to his coconspirators, this 

Court would still impose a sentence of 188 months.” J.A. 567D. 

And we find that the sentence would be reasonable even without 

application of the enhancement. Therefore, any error in 

applying the enhancement was harmless. See Savillon-Matute, 636 

F.3d at 123-24; Mehta, 594 F.3d at 283. 
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III.

We turn now to Salguero’s arguments. Salguero contends 

that the evidence was insufficient to support his conviction. 

He also argues that the district court made three errors at 

sentencing. We begin with Salguero’s sufficiency challenge.

A.

Salguero was convicted of conspiracy to distribute five 

kilograms or more of cocaine. On appeal, he concedes that he 

was part of the conspiracy but maintains that the evidence was 

sufficient only to prove the offense of conspiracy to distribute 

500 grams or more of cocaine. See United States v. Stewart, 256 

F.3d 231, 256 (4th Cir. 2001) (explaining that drug quantity

must be found by a jury beyond a reasonable doubt).

“We review the sufficiency of the evidence to support a 

conviction by determining whether there is substantial evidence 

in the record, when viewed in the light most favorable to the 

government, to support the conviction.” United States v. 

Jaensch, 665 F.3d 83, 93 (4th Cir. 2011) (internal quotation 

marks omitted). “[S]ubstantial evidence is evidence that a 

reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant's guilt beyond 

a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 

(4th Cir. 1996) (en banc). 
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The evidence at trial established that Salguero worked with 

a co-conspirator named Edin Miguel Esteban-Esteban (a.k.a. 

“Guero”) to accept two deliveries of cocaine. In the first 

delivery, two other co-conspirators met Salguero and Guero at a 

store in Philadelphia and removed three kilograms of cocaine 

from their vehicle while Salguero and Guero stood nearby and 

observed; and Guero ultimately took possession of the cocaine. 

In the second delivery, three other co-conspirators, including 

Maldonado, met Salguero and Guero in Philadelphia and delivered 

two additional kilograms of cocaine. Maldonado first testified 

that he gave the two kilograms of cocaine to Salguero, but he 

later claimed that Guero took possession of the cocaine. 

Salguero concedes that he was “linked” to the second 

delivery of two kilograms of cocaine, but he argues that the 

first delivery of three kilograms of cocaine cannot be 

attributed to him because “the first shipment went to Guero 

alone.” App. Brief at 27. We disagree. 

Under Pinkerton v. United States, 328 U.S. 640 (1946), “a 

person [is] liable for substantive offenses committed by a coconspirator when their commission is reasonably foreseeable and 

in furtherance of the conspiracy.” United States v. Ashley, 606 

F.3d 135, 142-43 (4th Cir. 2010). This extension of liability 

applies to quantities of drugs within a conspiracy. See United 

States v. Brooks, 524 F.3d 549, 558 (4th Cir. 2008) (“[A] trial 
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court is obliged to instruct a jury to use Pinkerton principles 

to determine the quantity of drugs attributable to each 

individual defendant involved in a drug conspiracy.” (internal 

quotation marks omitted)). There can be no dispute that the 

three kilograms of cocaine in the first delivery were

transferred to Salguero and Guero in furtherance of the 

conspiracy. Moreover, Salguero was present for the delivery of 

the three kilograms, and according to Maldonado’s testimony,

Salguero worked with Guero. These facts alone would enable a 

reasonable juror to find Salguero liable for the distribution of 

all five kilograms of cocaine. In addition, the government 

introduced audio recordings of Salguero arranging for the 

shipment of another ten kilograms of cocaine and seeking to

purchase yet another kilogram of cocaine. Thus, there is 

substantial evidence in the record to support his conviction. 

B.

We turn finally to Salguero’s three challenges to his 

sentence. 

1.

Salguero first claims that the district court erred in 

attributing at least fifteen but less than fifty kilograms of 

cocaine to him for sentencing purposes. We review this claim 

for clear error. See Slade, 631 F.3d at 188. “[T]he district 

court may attribute to the defendant the total amount of drugs 
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involved in the conspiracy, provided the drug quantities were 

reasonably foreseeable to the defendant and are within the scope 

of the conspiratorial agreement.” Randall, 171 F.3d at 210. We 

find that the five kilograms of cocaine delivered in 

Philadelphia, the ten kilograms of cocaine to be shipped, and 

the one additional kilogram of cocaine to be purchased—amounting 

to sixteen kilograms of cocaine—were reasonably foreseeable to 

Salguero and within the scope of his conspiratorial agreement. 

Therefore, the district court did not clearly err in attributing 

at least fifteen kilograms of cocaine to Salguero for sentencing 

purposes.

2.

Salguero next contends that the district court should have, 

sua sponte, raised the issue of whether his deportable status 

justified a downward variance from the guidelines. He argues 

that because of his deportable status, he will be ineligible for 

the benefits of 18 U.S.C. § 3624(c) and will, therefore, be 

subjected to harsher conditions than will an otherwise identical 

citizen.* While we have implicitly concluded that district 

 * 18 U.S.C. § 3624(a)(1) provides that “[t]he Bureau of 

Prisons shall, to the extent practicable, assure that a prisoner 

serving a term of imprisonment spends a reasonable part, not to 

exceed six months, of the last 10 per centum of the term to be 

served under conditions that will afford the prisoner a 

reasonable opportunity to adjust to and prepare for the 

prisoner’s re-entry into the community.”
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courts have the discretion to impose below-guidelines sentences 

for this reason, see United States v. Hyppolite, 65 F.3d 1151, 

1159 (4th Cir. 1995), we have never suggested that district 

courts are required to do so. Moreover, the cases relied upon 

by Salguero speak in discretionary, rather than obligatory, 

terms. See United States v. Farouil, 124 F.3d 838, 847 (7th 

Cir. 1997) (concluding that “[t]he district court is thus free 

to consider” a defendant’s alien status (emphasis added)); 

United States v. Smith, 27 F.3d 649, 650 (D.C. Cir. 1994)

(considering “whether a sentencing court may depart” and 

“hold[ing] such departures permissible” (emphasis added)). 

Accordingly, the district court did not err by failing to raise 

this issue sua sponte.

3.

Finally, Salguero argues that the district court committed 

procedural error by failing to provide an individualized 

sentence. During his sentencing hearing, Salguero emphasized 

that he was a good man, was a hard worker who provided for his 

family, had no criminal history, and was deportable. Without 

explaining how the sentencing factors enumerated at 18 U.S.C. § 

3553(a) applied to these personal circumstances, the district 

court stated, “I think considering the 18 U.S.C. 3553 factors[, 

the guidelines] range is appropriate.” J.A. 531. The court 

then imposed a bottom-of-the-guidelines sentence. 
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On appeal, the government concedes that the district court 

committed procedural error but argues that the error was 

harmless. Although we are not bound by the government’s 

concession of error, see United States v. Rodriguez, 433 F.3d 

411, 414 n.6 (4th Cir. 2006), we agree with the government that 

any error was harmless. 

Salguero’s arguments were relatively weak and provided no 

concrete basis for distinguishing him from the many other firsttime offenders who support their families. The district court 

listened to Salguero’s statements and arguments and, shortly 

thereafter, asserted that it had arrived at the sentence by 

considering the relevant factors. Thus, “we can say with fair 

assurance that the district court’s explicit consideration of 

[Salguero’s] arguments would not have affected the sentence 

imposed.” United States v. Boulware, 604 F.3d 832, 838 (4th 

Cir. 2010) (alterations and internal quotation marks omitted); 

cf. United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010) 

(vacating and remanding for resentencing based on “the strength 

of Lynn’s arguments for a different sentence,” which were not 

explicitly considered). Accordingly, we find that any 

procedural sentencing error was harmless. 

 
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IV.

 For the foregoing reasons, Salguero’s conviction and 

sentence are affirmed and Oliva’s sentence is also affirmed. 

AFFIRMED