United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2481

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Marvin Donaldo Chehuen Lopez

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 12-2497

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Rony Eleazar Guerra-Guala, 

also known as Rony Eliazar Guerra-Guala, 

also known as Alex

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: December 14, 2012

 Filed: February 7, 2013

[Unpublished]

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Before WOLLMAN, BYE, and BENTON, Circuit Judges.

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PER CURIAM.

Marvin DonaldoChehuen Lopez and RonyEleazar Guerra-Guala (collectively,

Defendants) pleaded guilty to one count of conspiring to distribute and to possess

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

detectable amount of methamphetamine and a mixture or substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

(b)(1)(C), and 846. The district court sentenced Chehuen Lopez and Guerra-Guala 1

to 120 and 192 months’ imprisonment, respectively. Defendants appeal their

sentences, arguing that there was insufficient evidence to support the district court’s

application of aggravating-role enhancements under United States Sentencing

Guidelines (Guidelines) § 3B1.1. Guerra-Guala also argues that the district court

erred in calculating the drug quantity attributable to him. We affirm. 

I. Background

In 2009, law enforcement officers received information that Defendants were 

distributing methamphetamine in St. Paul, Minnesota. The officers’ investigation

confirmed that Defendants and several other individuals were distributing large

amounts of methamphetamine and some cocaine. 

The Honorable Richard H. Kyle, United States District Judge for the District 1

of Minnesota. 

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Defendants pleaded guilty without a plea agreement after a grand jury indicted

themand eleven other coconspirators. At his change of plea hearing, Chehuen Lopez

admitted that from May 2009 to approximately September 2010 he acted as a runner

for the conspiracy by delivering cocaine and methamphetamine to customers in

Minnesota. He stated that he delivered around three pounds of methamphetamine per

week during the conspiracy, but that, towards the end, this amount dropped to about

a pound per week. When changing his plea, Guerra-Guala stated that his role in the

conspiracy was to take orders from customers over the phone and send a runner to

deliver the drugs and collect the customer’s money. Guerra-Guala said that he

engaged in this activity nearly every day.

TheUnited States Probation Office’s presentence reports (PSRs)recommended

that Chehuen Lopez receive a three-level enhancement for being a manager or

supervisor of the conspiracy and that Guerra-Guala receive a four-level enhancement

for being an organizer or leader of the conspiracy. The PSRs attributed at least 15

kilograms of methamphetamine to Defendants. Defendants objected to the

aggravating role enhancements, and Guerra-Guala objected to the PSR’s drug

quantity calculation. 

The district court held a joint evidentiary hearing on the objections, during

which it heard testimony from Deputy Chris Freichels, the primary case agent, and

Jason Leblonde, a coconspirator who had purchased methamphetamine from

Defendants. 

Freichels testified in detail regarding the roles that Defendants played in the

conspiracy. Prior to 2007, Guerra-Guala’s cousin, Yuris, ran a drug distribution

operation in Minnesota. Guerra-Guala worked in the operation as a contact person,

taking orders from customers over the phone and dispatching runners to deliver the

drugs and collect the customer’s money. According to Freichels, Guerra-Guala

assumed control over all aspects of the operation when Yuris left for Guatemala in

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2007. Wire taps of Guerra-Guala’s phones revealed that he would order drugs from

his source and have them shipped to Minnesota. When a shipment arrived, GuerraGuala would direct a coconspirator, who held the drug proceeds for Guerra-Guala,

to have the purchase money available and to deliver the money to a certain place. 

Freichels also overheard Guerra-Guala setting the price for the drugs, telling his

coconspirators where to store the drugs, and ordering them to secure cutting agents

to dilute the drugs before repackaging them. 

Towards the end of the conspiracy, Freichels overheard Guerra-Guala saying

that he was going to return to his native Guatemala and that he planned to place

Chehuen Lopez and another individual in charge of the conspiracy in his absence. 

Chehuen Lopez wasto handle the drug proceeds and assume Guerra-Guala’s position

as the conspiracy’s contact person. Chehuen Lopez became the conspiracy’s contact

person in September 2010, when he began taking orders from customers and

dispatching a runner to deliver the drugs. Leblonde testified that in the summer of

2010, he encountered Chehuen Lopez and another member of the conspiracy making

a delivery at someone’s house. Leblonde believed that Chehuen Lopez was training

the coconspirator to be a runner.

Both Freichels and Leblonde testified about the amount of methamphetamine

involved in the conspiracy. Freichels recounted statements by several named

coconspirators concerning the amount of methamphetamine they purchased from

Defendants. Additionally, he estimated certain amounts ofmethamphetamine that the

coconspirators purchased fromDefendants. When totaled, these amounts constituted

well over 40 kilograms. Leblonde testified that during the summer of 2008 he

purchased between a pound and a pound and a half of methamphetamine five times

a week. Thereafter, Leblonde’s purchase of methamphetamine dropped to

approximately an ounce or two per week. 

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At sentencing, the district court overruled Chehuen Lopez’s and GuerraGuala’s objections to the PSRs and imposed the earlier-described sentences.

II. Discussion 

We review the district court’s construction and application of the Guidelines

de novo. United States v. Augustine, 663 F.3d 367, 374 (8th Cir. 2011). We review

for clear error the district court’s factual findings regarding the aggravating role

enhancements and the drug quantitydetermination, applying the preponderance ofthe

evidence standard. Unites States v. Gamboa, 701 F.3d 265, 266 (8th Cir. 2012) (role

in offense); United States v. Walker, 688 F.3d 416, 420 (8th Cir. 2012) (drug quantity

determination).

A. Aggravating Role Enhancements

As relevant to this case, Guidelines § 3B1.1 authorizes two enhancements for

a defendant’s role in criminal activity involving at least five participants. See

U.S.S.G. § 3B1.1(a), (b). A defendant who is an “organizer or leader” of the criminal

activity is subject to a four-level enhancement. U.S.S.G. § 3B1.1(a). A “manager or

supervisor (but not an organizer or leader)” of the criminal activity is subject to a

three-level enhancement. U.S.S.G. § 3B1.1(b). 

Defendants do not argue that the conspiracy involved fewer than five

participants. Instead, they dispute the district court’s characterization of their roles

in the conspiracy. A number of factors are taken into account when determining a

defendant’s role in the offense:

[T]he exercise of decision making authority, the nature of participation

in the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of

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participation in planning or organizing the offense, the nature and scope

of the illegal activity, and the degree of control and authority exercised

over others.

U.S.S.G. § 3B1.1 cmt. n.4. 

1. Guerra-Guala

Guerra-Guala argues that the evidence was insufficient to support the district

court’s finding that he was an “organizer” or “leader” of the conspiracy under

Guidelines § 3B1.1(a). He contends that he was simply a contact person for the

conspiracy and that Yuris was actually in charge. The evidence at the sentencing

hearing showed that Guerra-Guala purchased drugs for the conspiracy, determined

the price at which these drugs were sold, and directed his coconspirators concerning

the management of the drug proceeds, the storage and processing of the drugs, and

the delivery of the drugs to customers. Freichels testified that “[i]t was always Mr.

Guala that was directing everyone. No one told him what to do.” Tr. 30. Indeed,

when Guerra-Guala decided to return to Guatemala, he determined who his

successors would be and what roles they would play in the conspiracy. Construing

the terms “organizer” and “leader” broadly, United States v. Molina-Perez, 595 F.3d

854, 862 (8th Cir. 2010), we conclude that the district court did not clearly err by

imposing an enhancement under Guidelines § 3B1.1(a).

2. Chehuen Lopez

Chehuen Lopez argues that the district court erred in applying the three-level

“manager” or “supervisor” enhancement because his role in the conspiracy was that

of a mere “dispatcher.” “[W]e have defined the terms ‘manager’ and ‘supervisor’

quite liberally, holding that a defendant can be subject to this enhancement for having

managed orsupervised only one other participant in the criminal conspiracy.” United

States v. Lopez, 431 F.3d 313, 317-18 (8th Cir. 2005). Additionally, the

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enhancement “‘may apply even if the management activity was limited to a single

transaction.’” Id. at 318 (quoting United States v. Zimmer, 299 F.3d 710, 724 (8th

Cir. 2002)). 

It is undisputed that Chehuen Lopez began acting as the contact person for the

conspiracy in September 2010. As the contact person, Chehuen Lopez would take

orders from customers and negotiate the place of delivery. He would then direct the

conspiracy’s runner, whom, according to Leblonde, Chehuen Lopez had trained, to

deliver the drugs and collect the money from the customer. Given this evidence, the

district court’s finding that Chehuen Lopez was a manager or supervisor was not

clearly erroneous. See United States v. Cole, 657 F.3d 685, 687-88 (8th Cir. 2011)

(per curiam) (upholding enhancement where defendant “transported/and or directed

the transportation” of drugs and directed a coconspirator to drive himfromcity to city

to deliver drugs); Lopez, 431 F.3d at 316-18 (upholding enhancement where

defendant asked his roommate to “serve as a lookout on one occasion”). 

B. Drug Quantity

Guerra-Guala argues that the evidence was insufficient to support the district

court’s drug quantity determination. “This court will overturn a finding of drug

quantity only if the entire record definitively and firmly convinces us that a mistake

has been made.” United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012) (citation

omitted). “When calculating drug quantity in the context of a narcotics trafficking

conspiracy, the sentencing court may consider all transactions known or reasonably

foreseeable to the defendant that were made in furtherance ofthe conspiracy.” United

States v. Plancarte-Vazquez, 450 F.3d 848, 852 (8th Cir. 2006). 

The district court’s drug quantity determination was not clearly erroneous.

Freichels described a conspiracy that sold more than 40 kilograms of

methamphetamine. Leblonde corroborated this testimony by stating that he had

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purchased between a pound and a pound and a half of methamphetamine five times

a week during the summer of 2008. Further, Chehuen Lopez stated that he delivered 2

between one to three pounds of methamphetamine per week during his time as a

runner for the conspiracy. 

Guerra-Guala objects to the district court’s reliance on this evidence, arguing

that the statements of Leblonde and his coconspirators were not reliable. “But

‘[a]rguments about the reliability of a witness are in reality an attack on the credibility

of that testimony, and witness credibility is an issue for the sentencing judge that is

virtually unreviewable on appeal.’” Walker, 688 F.3d at 422 (quoting United States

v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002)). We see no basis to conclude

that the district court clearly erred by finding Freichels and Leblonde credible. The

evidence thus was sufficient to support the district court’s finding that Guerra-Guala

was responsible for at least 15 kilograms of methamphetamine. 

III.

The sentences are affirmed. 

_______________________________

Guerra-Guala’s brief points out in a footnote that his sale ofmethamphetamine

2

to Leblonde during the summer of 2008 occurred prior to the initial date of the

conspiracy alleged in the indictment. When determining drug quantity, however, the

district court may consider all drugs “that were part of the same course of conduct or

common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). The

evidence showed that the conspiracy began well before the April 2009 date alleged

in the indictment, and both Leblonde and Freichels testified that Guerra-Guala was

integrally involved in the conspiracy’s sale of methamphetamine to Leblonde in the

summer of 2008. Thus, the district court appropriately considered Guerra-Guala’s

sale of methamphetamine to Leblonde during this time period when making its drug

quantity determination. 

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