1

 The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-3687

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States 

v. * District Court for the 

* District of Nebraska.

Ignacio Sandoval-Sianuqui, *

also known as Nacho, *

*

Defendant - Appellant. *

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Submitted: November 19, 2010

 Filed: February 15, 2011

___________

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

___________

MELLOY, Circuit Judge.

Ignacio Sandoval-Sianuqui pleaded guilty to conspiring to distribute and

possessing with the intent to distribute 500 grams or more of a substance containing

methamphetamine. The district court1

 sentenced Sandoval-Sianuqui to 292 months'

imprisonment. Sandoval-Sianuqui appeals his sentence. He argues that the district

court erred in finding that he obstructed justice, erred in finding him ineligible for
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safety-valve relief, committed procedural error in sentencing him, and imposed a

substantively unreasonable sentence. We affirm. 

I. Background

From roughly September 2007 until early July 2008, Sandoval-Sianuqui

participated in a conspiracy to distribute methamphetamine. Sandoval-Sianuqui

resided in Phoenix, Arizona, but the conspiracy involved distributing

methamphetamine to Kansas and Nebraska. 

Luis Mendoza-Ramirez and Jose Antonio Duran were part of the conspiracy.

Mendoza-Ramirez twice traveled to Phoenix from his residence in Nebraska to

purchase a pound or two of methamphetamine from Sandoval-Sianuqui in 2007.

Mendoza-Ramirez then resold these drugs in Nebraska. After these initial trips,

however, Mendoza-Ramirez no longer made the trips to Arizona himself. Instead, he

arranged with Sandoval-Sianuqui to have Duran act as a transporter. Pursuant to this

arrangement, Sandoval-Sianuqui provided Duran with methamphetamine in Arizona,

Duran transported the drugs to Mendoza-Ramirez in Nebraska and to MendozaRamirez's cousin in Kansas, and then Duran received the purchase money from

Mendoza-Ramirez and his cousin and returned it to Sandoval-Sianuqui in Arizona. 

Duran made numerous trips pursuant to this arrangement. Sandoval-Sianuqui

charged Mendoza-Ramirez and his cousin roughly $18,500 per pound of

methamphetamine, and Mendoza-Ramirez and his cousin paid Duran roughly $1,000

for each pound that Duran transported. Sandoval-Sianuqui agrees that this scheme

involved at least fifteen kilograms of methamphetamine. 

In February 2008, the government arrested Mendoza-Ramirez and Duran and

charged them with drug-distribution offenses. Both men signed plea agreements and

participated in proffer interviews where they provided the government with details
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regarding the drug-distribution conspiracy, including information concerning

Sandoval-Sianuqui's role in the conspiracy.

On August 20, 2008, a grand jury indicted Sandoval-Sianuqui for conspiring

to distribute and possessing with the intent to distribute 500 or more grams of

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

September 5, law enforcement arrested Sandoval-Sianuqui in Arizona and transported

him to Nebraska. He ultimately entered a guilty plea on June 18, 2009. 

The district court sentenced Sandoval-Sianuqui on November 17, 2009. The

court found that the base offense level for the conspiracy charge was thirty-eight. The

court imposed a two-level enhancement after finding that Sandoval-Sianuqui had

obstructed justice. The court did not grant an offense-level reduction for acceptance

of responsibility. Although Sandoval-Sianuqui had a criminal-history category I, the

court found that Sandoval-Sianuqui was ineligible for safety-valve relief because he

had obstructed justice. Sandoval-Sianuqui's advisory guideline sentencing range was

292 to 365 months. The district court denied Sandoval-Sianuqui's motion to vary

downward from the range and imposed a sentence of 292 months. 

Sandoval-Sianuqui raises four issues on appeal. First, he argues that the district

court erred by finding that he obstructed justice. Second, he argues that the district

court erred by finding that he was ineligible for safety-valve relief. Third, he argues

that the district court committed procedural error by failing to adequately consider the

sentencing factors of 18 U.S.C. § 3553(a). Finally, he argues that the district court's

denial of his downward-variance motion resulted in the imposition of a substantively

unreasonable sentence. 
2

 Duran and Mendoza-Ramirez testified that Sandoval-Sianuqui threatened

them and their families on numerous occasions while the three were in prison.

Mendoza-Ramirez testified that beginning in March or April of 2009, SandovalSianuqui repeatedly called him a traitor and said that he "would pay" for cooperating

with the government. Mendoza-Ramirez believed these threats meant that SandovalSianuqui was either going to have him or one of his family members killed. Duran

testified that in mid-June 2009, Sandoval-Sianuqui claimed to have acquired the home

addresses for Duran's and Mendoza-Ramirez's families and threatened to use the

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II. Discussion

A.

Sandoval-Sianuqui first argues that the district court erred by finding that he

obstructed justice. Section 3C1.1 of the Sentencing Guidelines provides that a twolevel increase in a base offense level is appropriate if:

(A) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the defendant's

offense of conviction and any relevant conduct; or (ii) a closely related

offense . . . . 

U.S.S.G. § 3C1.1; see also United States v. Jones, 612 F.3d 1040, 1046 (8th Cir.

2010). This adjustment applies to "threatening, intimidating, or otherwise unlawfully

influencing a co-defendant [or] witness . . . directly or indirectly, or attempting to do

so." See U.S.S.G. § 3C1.1 cmt. n.4 (listing examples). "We review the sentencing

court's factual findings regarding obstruction of justice . . . for clear error." Jones, 612

F.3d at 1046.

At Sandoval-Sianuqui's sentencing hearing, Duran testified that SandovalSianuqui both threatened and assaulted him while the two were in prison together.2
addresses to find and kill their families. Duran testified that near this time, his wife

said that armed individuals had come to her house and had "roughed her up." 

Mendoza-Ramirez testified that, also near this time, a woman with the same name as

his wife who lived in the same "small town" in Mexico was murdered. 

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Duran testified that in April of 2009, he was sitting on a bench in the booking area of

a prison waiting to be admitted. Then, a line of inmates entered and began walking

across the room. Duran testified that Sandoval-Sianuqui was part of the line, and as

he passed Duran, he stepped out of the line, slapped Duran, and said in Spanish that

Duran was a "traitor" and that he would "lose out or be killed." A security guard

testified at the sentencing hearing that he heard a "smacking noise" but did not see

Sandoval-Sianuqui strike Duran. However, the guard reviewed a video recording to

confirm that the slap occurred. The guard also testified that he heard SandovalSianuqui say something to Duran near the time of the slap, but since he did not speak

Spanish, he could not confirm that Sandoval-Sianuqui had threatened Duran.

On the basis of this testimony, the district court found that Sandoval-Sianuqui

had assaulted and threatened Duran "in an effort to either shut [him] up or to punish

him for cooperating." We have indicated that a two-level increase pursuant to

section 3C1.1 is appropriate if a defendant harms or threatens to harm a witness,

regardless of whether the defendant's motive is to "shut up" or "punish" the witness.

United States v. Wahlstrom, 588 F.3d 538, 545 (8th Cir. 2009); United States v.

Johnson, 978 F. Supp. 1305, 1309 (D. Neb. 1997) (imposing obstruction-of-justice

enhancements after finding that the defendants attempted to harm a witness to either

"silence or punish him"), aff'd, United States v. Valdez, 146 F.3d 547, 555 (8th Cir.

1998) (holding that the district court's findings were "sufficient as a matter of law" to

warrant the obstruction-of-justice enhancements). Nonetheless, Sandoval-Sianuqui

argues that the district court's finding in this case is clearly erroneous because Duran

was not credible. Specifically, Sandoval-Sianuqui argues that Duran was not credible

because (1) the guard who witnessed Sandoval-Sianuqui's slap of Duran testified that

Sandoval-Sianuqui only slapped Duran once, whereas Duran testified that he was
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slapped on "both sides" of his face, which implies Duran testified he was slapped

twice, and (2) the guard could not corroborate Duran's allegation that SandovalSianuqui had threatened Duran after slapping him because the guard could not speak

Spanish. 

Sandoval-Sianuqui's arguments are without merit. First, it is undisputed that

both the guard and Duran testified that Sandoval-Sianuqui assaulted Duran. Further,

"'[a] district court's assessment of a witness's credibility is almost never clear error

given that court's comparative advantage at evaluating credibility.'" Wahlstrom, 588

F.3d at 542 (quoting United States v. Killingsworth, 413 F.3d 760, 763 (8th Cir.

2005)). The court was free to believe Duran's testimony that Sandoval-Sianuqui

threatened him regardless of whether the guard sufficiently understood Spanish to

corroborate what Sandoval-Sianuqui said to Duran. Therefore, the court's factual

findings were not clearly erroneous, and they justified imposition of a two-level

increase for obstruction of justice. 

B.

Next, Sandoval-Sianuqui argues that the district court erred in finding that he

was ineligible for safety-valve relief. If a defendant is eligible for safety-valve relief,

a district court may impose a sentence below the statutory minimum term of

imprisonment. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. A defendant is eligible for

safety-valve relief if he meets certain conditions, including not having used "violence

or credible threats of violence . . . in connection with the offense." § 5C1.2(a)(2). The

defendant bears the burden of proving his eligibility for this relief. United States v.

Aguilera, 625 F.3d 482, 488 (8th Cir. 2010). "We review the district court's

application of § 5C1.2 de novo and its factual findings for clear error." United States

v. Jackson, 552 F.3d 908, 909 (8th Cir. 2009). 
3

 The district court also found that Sandoval-Sianuqui was ineligible for safetyvalve relief because he did not prove that he provided the government with complete

and true information regarding who all of his buyers were, who all of his suppliers

were, and where the money went that he had received from his drug dealing. Pursuant

to § 5C1.2(a)(5), a defendant is ineligible for safety-valve relief if he cannot prove that

he has "truthfully provided to the Government all information and evidence [that he]

has concerning [his] offense or offenses that were part of the same course of conduct

or of a common scheme or plan." Our finding that the district court did not err in

concluding that Sandoval-Sianuqui was ineligible for safety-valve relief because of

his assault on and threat toward Duran, however, makes it unnecessary for us to

consider whether Sandoval-Sianuqui failed to prove his eligibility for safety-valve

relief pursuant to § 5C1.2(a)(5).

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The district court found that Sandoval-Sianuqui's assault on and threat toward

Duran made Sandoval-Sianuqui ineligible for safety-valve relief. We agree. To be

eligible for safety-valve relief, the defendant must not have used "violence or credible

threats of violence" while "attempting to avoid detection or responsibility" for the

offense of conviction. § 3553(f)(2); §§ 5C1.2(a)(2), 5C1.2 cmt. n.3, 1B1.3. In

imposing the obstruction-of-justice enhancement, the court necessarily found that by

assaulting and threatening Duran, Sandoval-Sianuqui "willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice with respect

to the investigation, prosecution, or sentencing of the instant offense of conviction .

. . ." § 3C1.1. If a defendant assaults and threatens a cooperating witness for the

purpose of obstructing or impeding the investigation, prosecution, or sentencing of his

offense of conviction, it follows that the defendant has used violence or credible

threats of violence for the purpose of attempting to avoid detection or responsibility

for the offense of conviction. Thus, the court did not err in finding that SandovalSianuqui was ineligible for safety-valve relief.3
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C.

Third, Sandoval-Sianuqui argues that the district court committed procedural

error in sentencing him by failing to adequately consider the disparity between his

sentence and the sentences that Mendoza-Ramirez and Duran received.

If a sentencing court fails to consider the factors enumerated in § 3553(a), the

court commits "procedural error." Gall v. United States, 552 U.S. 38, 51 (2007). So

long as it is clear from the record that the district court "actually considered the §

3553(a) factors in determining the sentence," however, we generally find that the court

has committed no procedural error. United States v. Walking Eagle, 553 F.3d 654,

659 (8th Cir. 2009). Among the § 3553(a) factors that a sentencing court must

consider is "the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct." § 3553(a)(6). Thus,

judges must consider sentencing disparities among defendants who are "similarly

situated" to each other. United States v. Williams, 624 F.3d 889, 897 (8th Cir. 2010);

United States v. Brunken, 581 F.3d 635, 638 (8th Cir. 2009). 

In this case, Duran, Mendoza-Ramirez, and Sandoval-Sianuqui faced roughly

similar charges, they were responsible for roughly the same amounts of

methamphetamine, and they all pleaded guilty. Nonetheless, Sandoval-Sianuqui

received a 292-month sentence while Duran received a sentence of 96 months and

Mendoza-Ramirez received a sentence of 108 months. We find no infirmity in the

district court's consideration of § 3553(a)(6), however, because the three defendants

were not similarly situated. Sandoval-Sianuqui committed obstruction of justice

(Duran and Mendoza-Ramirez did not), he was ineligible for safety-valve relief

(Duran and Mendoza-Ramirez received such relief), and he did not accept

responsibility for his criminal activity (Duran and Mendoza-Ramirez did accept

responsibility). Williams, 624 F.3d at 897. Moreover, even though the defendants

were not similarly situated, the sentencing transcript clearly demonstrates that,
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contrary to Sandoval-Sianuqui's argument, the district court understood that it had the

authority to vary downward from the advisory sentencing guidelines range and

thoroughly considered, but rejected, Sandoval-Sianuqui's motion to do so based upon

the sentence disparities among the three defendants. Therefore, the district court's

consideration of § 3553(a)(6) did not constitute procedural error. 

D.

Finally, Sandoval-Sianuqui argues that by rejecting his downward-variance

motion, the district court imposed a substantively unreasonable sentence. We apply

an abuse-of-discretion standard to review the substantive reasonableness of a sentence.

United States v. Hoffman, 626 F.3d 993, 998 (8th Cir. 2010).

We reject Sandoval-Sianuqui's argument that the disparity between the length

of his sentence and the lengths of Duran's and Mendoza-Ramirez's sentences renders

his sentence substantively unreasonable. First, the district court imposed a sentence

within the advisory guideline sentencing range, and we presume such sentences are

reasonable. United States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010). Moreover, as

we noted before, Sandoval-Sianuqui is not "similarly situated" to Duran and

Mendoza-Ramirez, and we have indicated that disparate sentences between

dissimilarly situated defendants is generally not a proper basis for concluding that a

sentence is substantively unreasonable. See Brunken, 581 F.3d at 638; see also United

States v. Watson, 480 F.3d 1175, 1177–78 (8th Cir. 2007) (suggesting that "legitimate

distinctions" between defendants due to properly imposed offense-level enhancements

and reductions indicates that the defendant who received the longer sentence did not

receive a substantively unreasonable one). Finally, the district court explicitly

considered the § 3553(a) factors at the sentencing hearing, and we "give due deference

to the district court's decision that the § 3553(a) factors, on a whole, justify" the

sentence. Gall, 552 U.S. at 51; see also United States v. Davis, 583 F.3d 1081, 1099
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(8th Cir. 2009). Therefore, we reject Sandoval-Sianuqui's argument that his sentence

was substantively unreasonable.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court. 

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