UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DANIEL MORALES LARA, 

 Defendant - Appellant. 

No. 23-6057 

(D.C. No. 5:21-CR-00076-SLP-8) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, EID, and ROSSMAN, Circuit Judges. 

_________________________________ 

Daniel Morales Lara pled guilty to drug conspiracy and aiding and abetting 

distribution of methamphetamine. On appeal, he challenges the district court’s 

sentencing decisions denying him a mitigating role adjustment and imposing an 

enhancement because the methamphetamine was imported. Exercising jurisdiction 

under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291, we affirm. 

*

 This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 11, 2024

Christopher M. Wolpert 

Clerk of Court

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I. BACKGROUND 

A. Factual History 

Oscar Hernandez-Flores operated an Oklahoma drug trafficking organization 

(“DTO”) from Mexico. The DTO imported liquid methamphetamine from Mexico to 

the United States, converted it into a solid, and distributed it in Oklahoma. 

Mr. Hernandez-Flores directed family members and associates in Oklahoma 

City to conduct the DTO’s activities there. In 2020, he told a family member in 

Oklahoma City to expect a shipment of 80 kilograms of methamphetamine. Another 

DTO member coordinated the delivery. 

Mr. Lara and the other DTO member delivered the methamphetamine. 

Afterwards, they drove to a suspected stash house, entered the residence, and 

returned to the car with a bag. When they drove away, law enforcement stopped their 

vehicle, searched it, and found $261,875 in cash. 

B. Procedural History 

Mr. Lara pled guilty to drug conspiracy and aiding and abetting distribution of 

methamphetamine. The relevant procedural history concerns his sentencing, 

beginning with the presentence investigation report (“PSR”). 

PSR and PSR Objections 

Mr. Lara’s PSR explained that a 2016 investigation had identified the 

Hernandez DTO as a supplier of the Irish Mob Gang (“IMG”), a gang based in 

Oklahoma prisons. After describing Mr. Lara’s role in the methamphetamine 

delivery, the PSR calculated Mr. Lara’s base offense level as 38 under the United 

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States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). It recommended 

against a reduction under U.S.S.G. § 3B1.2 for playing a mitigating role in the 

offense. It also recommended a two-level enhancement under U.S.S.G. 

§ 2D1.1(b)(5) because the methamphetamine was imported. 

Mr. Lara objected to these recommendations. 

Sentencing Memorandum 

Mr. Lara submitted a sentencing memorandum, which further elaborated on his 

PSR objections. He argued that he should receive a mitigating role adjustment. He 

said that U.S.S.G. § 3B1.2 required the court to determine whether he was 

substantially less culpable than the average participant in the criminal activity, listed 

the five factors § 3B1.2 says courts should consider, and argued that the factors all 

weighed in his favor. He also argued the importation enhancement should not apply. 

Sentencing 

a. Mitigating role adjustment 

At sentencing, Mr. Lara relied on his sentencing memorandum regarding the 

mitigating role adjustment. App., Vol. 3 at 33. 

The Government argued the mitigating role adjustment should not apply 

because Mr. Lara “jumped straight into the deep end” of the enterprise, which 

required a “level of trust” from top DTO members. Id. at 37; see id. at 36-38. It said 

“lots of individuals during the course of th[e] case . . . picked up drugs on multiple 

. . . occasions” but “none . . . ever possessed more methamphetamine than [Mr. Lara] 

possessed on that one day,” which “show[ed] the significance, the trust, the import, 

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and the reliance that Oscar Hernandez[-Flores] put on somebody like [Mr. Lara] to 

protect his goods, to protect his money, and to get them to where [they] needed to 

be.” Id. at 38. It concluded that Mr. Lara’s “actions in this case [did not] represent a 

level of criminality of a lesser degree than the average defendant,” and instead, he 

was “a very important trusted part of th[e] organization.” Id.

The district court denied the mitigating role adjustment. Id. at 43. It found 

Mr. Lara had “jumped straight into the deep end” of the DTO and “clearly had the 

trust of the[] individuals” in the DTO because “he was involved and privy to the 

transportation, not only of a substantial amount of money, but also . . . the 

transportation of a substantial amount of methamphetamine.” Id. at 42. The court 

also explained it was “not uncommon” for DTO members to be “responsible for 

[only] the transportation or handling of money,” but these individuals “often” do not 

handle the amount of money involved here, and Mr. Lara “transcend[ed] people in 

those positions by . . . also . . . transport[ing] . . . a substantial amount of 

methamphetamine.” Id. 

The court concluded from “looking at the circumstances as described in the 

presentence report and as argued by the government, . . . that [Mr. Lara] was 

involved enough, and did have enough of a role” to not receive the mitigating role 

adjustment. Id. at 42-43. 

b. Importation enhancement 

Mr. Lara argued he did not know and could not have reasonably foreseen that 

the drugs were imported from Mexico. Id. at 31-33. 

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The Government noted that Mr. Lara did not challenge that the DTO imported 

the drugs from Mexico. Id. at 34. It also argued that he knew or reasonably should 

have known the methamphetamine was imported, id. at 34-36, and by working for the 

DTO, Mr. Lara “[wa]s a part of th[e] very primary chain of custody . . . between 

Mexico and the United States, id. at 36. The Government also observed that the 

Hernandez DTO supplied the IMG. Id.

The district court imposed the importation enhancement. Id. at 40. It said that 

§ 2D1.1(b)(5) does not require that Mr. Lara knew or should have known the 

methamphetamine was imported. Id. It further held that “even if the knowledge 

requirement were to apply,” there was “a fair probability that [Mr. Lara] actually 

knew that the methamphetamine was from Mexico,” and “even if not, certainly, . . . 

he should have reasonably known the methamphetamine was being imported from 

Mexico.” Id.

c. Sentence 

The district court, after explaining it had “fully reviewed” Mr. Lara’s “robust” 

sentencing memorandum, id. at 29-30, overruled Mr. Lara’s objections, id. at 40-43. 

It determined Mr. Lara’s advisory Guideline range was 210 to 262 months and that 

Mr. Lara preserved his objections. Id. at 43-44. The court sentenced him to 180 

months in prison. 

II. DISCUSSION 

On appeal, Mr. Lara challenges the procedural reasonableness of his sentence. 

He argues the district court erred in analyzing the mitigating role adjustment and in 

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determining the importation enhancement did not require scienter. Aplt. Br. 

at 29-37, 42-57. 

“Procedural reasonableness addresses whether the district court incorrectly 

calculated . . . the Guidelines sentence . . . or failed to adequately explain the 

sentence.” United States v. McCrary, 43 F.4th 1239, 1244 (10th Cir. 2022) 

(quotations omitted). “[T]he overarching standard for our review of the procedural 

reasonableness of the court’s sentence is abuse of discretion . . . .” United States v. 

Nkome, 987 F.3d 1262, 1268 (10th Cir. 2021). 

“[W]e review de novo the district court’s legal conclusions regarding the 

guidelines . . . .” Id. (quotations omitted). “[A] district court commits legal error 

when it applies the wrong test in making a factual finding at sentencing,” and “[a]n 

error of law is per se an abuse of discretion.” Id. at 1269 (quotations omitted). 

We review the district court’s “factual findings for clear error.” Id. at 1268 

(quotations omitted). “[W]e will not reverse the district court unless the court’s finding 

was without factual support in the record or if after reviewing all the evidence, we are left 

with the definite and firm conviction that a mistake has been made.” United States v. 

Delgado-Lopez, 974 F.3d 1188, 1191 (10th Cir. 2020) (quotations omitted). 

A. Mitigating Role Adjustment 

Mr. Lara argues the district court erred in several ways when it denied him the 

mitigating role adjustment. Aplt. Br. at 29-37. We disagree and affirm the district 

court. 

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Legal Background 

a. U.S.S.G. § 3B1.2 

The Guidelines instruct courts to apply a mitigating role adjustment when a 

“defendant . . . plays a part in committing the offense that makes him substantially 

less culpable than the average participant in the criminal activity.” U.S.S.G. 

§ 3B1.2 n.3(A). Section 3B1.2 calls for a four-level decrease “[i]f the defendant was 

a minimal participant,” a two-level decrease “[i]f the defendant was a minor 

participant,” and a three-level decrease if the defendant was “between” a minimal and 

minor participant. 

A minimal participant is “plainly among the least culpable of those involved in 

the conduct of a group.” Id. § 3B1.2 n.4. A minor participant is “less culpable than 

most other participants in the criminal activity, but whose role could not be described 

as minimal.” Id. § 3B1.2 n.5. 

“[T]he crux of [the mitigating role adjustment] is a defendant’s relative 

culpability.” Nkome, 987 F.3d at 1273 (quotations omitted). In determining whether 

the defendant was “substantially less culpable,” U.S.S.G § 3B1.2 n.3(A), the district 

court “should consider” five “non-exhaustive” factors: 

(i) the degree to which the defendant understood the 

scope and structure of the criminal activity; 

(ii) the degree to which the defendant participated in 

planning or organizing the criminal activity; 

(iii) the degree to which the defendant exercised 

decision-making authority or influenced the exercise 

of decision-making authority; 

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(iv) the nature and extent of the defendant’s 

participation in the commission of the criminal 

activity, including the acts the defendant performed 

and the responsibility and discretion the defendant 

had in performing those acts; 

(v) the degree to which the defendant stood to benefit 

from the criminal activity. 

Id. § 3B1.2 n.3(C). 

b. Preservation 

To preserve “any alleged procedural flaw,” a “defendant must . . . 

contemporaneously object in the district court to the method by which the district 

court arrived at a sentence.” United States v. Wireman, 849 F.3d 956, 961 (10th Cir. 

2017) (quotations omitted); United States v. Yurek, 925 F.3d 423, 444 (10th Cir. 

2019) (same).

In United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006), we held the 

defendant failed to preserve his appellate sentencing challenge because he did not 

contemporaneously object in the district court to the “method by which” it 

determined his sentence. Id. at 1220-21 (emphasis omitted). We emphasized that a 

proper “contemporaneous objection” “can alert the district court and opposing 

counsel, so that a potential error can be corrected, obviating any need for an appeal.” 

Id. at 1221. “[F]or example,” had the defendant contemporaneously objected that the 

district court “had not adequately explained [his] sentence” under the 18 U.S.C. 

§ 3553(a) factors, the objection “would have enabled the court . . . to consider th[e] 

[§ 3553 factors] or to state affirmatively that the factors had been considered.” Id.

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In Yurek, the defendant argued on appeal that the district court applied the 

wrong legal test when it denied the mitigating role adjustment. 925 F.3d at 444. She 

asserted that “she preserved the issue by objecting to the presentence report,” despite 

her failure to raise the issue at sentencing. Id. We held the defendant failed to 

preserve this argument, stating that she “alleg[ed] an error in the district court’s 

explanation, not in the content of the presentence report,” so “objecting to the 

presentence report would not have alerted the district court to an error in its 

explanation.” Id.

When a defendant fails to object at sentencing to the procedural 

reasonableness of the sentence, we generally review only for plain error. United 

States v. Eddington, 65 F.4th 1231, 1240 (10th Cir. 2023). “To establish plain error, 

[the appellant] must show that (1) the district court erred, (2) the error was plain, 

(3) the error affected [his] substantial rights, and (4) the error seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Miller, 978 F.3d 746, 757 (10th Cir. 2020) (quotations omitted). Failure to argue 

plain error on appeal waives the issue. United States v. Leffler, 942 F.3d 1192, 1196 

(10th Cir. 2019) (“When an appellant fails to preserve an issue and also fails to make 

a plain-error argument on appeal, we ordinarily deem the issue waived (rather than 

merely forfeited) and decline to review the issue at all—for plain error or 

otherwise.”). 

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Application 

Mr. Lara asserts the district court “legally erred . . . in two ways,” Aplt. Br. 

at 29—first, by comparing him to individuals “outside th[e] criminal scheme,” id.

at 32, and second, by “failing to identify the ‘average,’ or ‘mathematical’ middle 

participant” and then compare him against this participant, id. at 29. We read 

Mr. Lara’s brief to make a third argument—that the court failed to consider § 3B1.2’s 

five factors and that each factor weighed in his favor. Id. at 32-36; see also United 

States v. Conley, 89 F.4th 815, 819 n.2 (10th Cir. 2023) (“We may review a party’s 

argument according to its substance rather than the party’s characterization.”), cert. 

denied, No. 23-7046, 2024 WL 1607958 (Apr. 15, 2024). We address each argument in 

turn. 

a. Comparisons 

Mr. Lara argues the court erroneously compared him against individuals 

“outside th[e] criminal scheme.” Aplt. Br. at 32. He waived this argument. 

After the district court denied him the mitigating role adjustment, Mr. Lara 

said that he “preserv[ed] [his] objections.” App., Vol. 3 at 44. But he never objected 

to the court’s comparisons—the “method by which” it arrived at the sentence. LopezFlores, 444 F.3d at 1220. His PSR objections did not “alleg[e] an error in the district 

court’s explanation.” Yurek, 925 F.3d at 444. Neither did his sentencing 

memorandum, which described the relevant legal standards and argued he should 

receive the mitigating role adjustment. The memorandum did not, and could not, 

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argue that the court had erroneously made comparisons because the court had not yet 

done so. 

Mr. Lara therefore did not “alert the district court” to his belief that it had 

incorrectly compared him to individuals outside of the criminal activity, such that it 

could “correct[]” the “potential error.” Lopez-Flores, 444 F.3d at 1221; see United 

States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014) (“[T]he test is whether the 

district court was adequately alerted to the issue.”). Because Mr. Lara failed to 

contemporaneously object to the method by which the court compared him to others, 

and because he does not argue plain error on appeal, he has waived this argument. 

See Yurek, 925 F.3d at 445; Leffler, 942 F.3d at 1196. 

Even if we were to overlook waiver, his argument also fails on the merits. 

First, Mr. Lara argues the court improperly compared him to members of the 

IMG, “a tangentially related but wholly different conspiracy and criminal scheme.” 

Aplt. Br. at 32. The court did not erroneously compare him to the IMG because the court 

never mentioned the IMG. See App., Vol. 3 at 3-63. The PSR did not compare 

Mr. Lara to IMG members, and the Government mentioned the IMG only briefly 

when discussing the importation enhancement. There is thus no “indication in the 

record” that the court improperly compared Mr. Lara to the IMG. Nkome, 987 F.3d 

at 1273 (quotations omitted). 

Second, Mr. Lara argues the court erroneously compared him to a “generalized 

individual” in a DTO “who transports only money.” Aplt. Br. at 32; see also id.

at 18. At sentencing, the court said Mr. Lara “transcends” such an individual because 

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he transported a large amount of methamphetamine. App., Vol. 3 at 42. This 

comparison, even if error, was harmless. See Fed. R. Crim. P. 52(a) (“Any error, 

defect, irregularity, or variance that does not affect substantial rights must be 

disregarded.”). 

The court denied the mitigating role adjustment based on “the circumstances 

as described in the presentence report and as argued by the government,” not based 

on any comparison to a generalized individual. App., Vol. 3 at 42-43. The PSR and 

the Government described Mr. Lara’s relative role in the criminal activity—detailing 

the individuals involved, their actions during the methamphetamine delivery, and 

Mr. Lara’s place in the DTO hierarchy. The court therefore properly assessed 

Mr. Lara’s relative role, and any reference to a “generalized individual,” Aplt. Br. at 32, 

did not affect the court’s decision to deny the mitigating role adjustment.1

b. Mathematical middle participant 

Mr. Lara argues the district court erroneously “fail[ed] to identify the 

‘average’ or ‘mathematical’ middle participant[] and compare Mr. Lara’s culpability” 

to this participant. Id. at 29. Mr. Lara waived this argument. As explained 

previously, his PSR objections and sentencing memorandum did not object to the 

court’s method in analyzing the mitigating role adjustment. His memorandum did 

1 See United States v. Eaton, No. 22-5061, 2023 WL 2336703, at *2 (10th Cir. 

Mar. 3, 2023) (unpublished) (affirming when an error did not affect the district court’s 

ultimate decision). 

Unpublished opinions are cited in this order and judgment for their persuasive 

value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 

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not even attempt to identify an average participant or say the court needed to do so on 

the record. He does not argue plain error on appeal. 

Again, even if we were to overlook waiver, his argument also fails on the 

merits. The Guidelines do not require a court to identify a mathematical middle 

participant on the record. See U.S.S.G. § 3B1.2. 

c. Section 3B1.2’s five factors 

Mr. Lara argues the district court legally erred in failing to consider the five 

§ 3B1.2 factors and factually erred in finding the factors weighed against him. 

Aplt. Br. at 33-36. He preserved these arguments because his sentencing 

memorandum described the five factors and argued each of them favored him, and he 

“preserv[ed] [his] objections” at sentencing. App., Vol. 3 at 44. 

i. Legal argument 

Mr. Lara’s legal argument fails because the court did not need to expressly 

address § 3B1.2’s five factors. Omission of express references to the factors does not 

mean it “considered none of the factors.” Aplt. Br. at 33. Under our precedent, we 

presume the court considered the factors absent an indication otherwise. Nkome, 

987 F.3d at 1273. Also, the court’s comments at Mr. Lara’s sentencing indicate that 

it considered the factors. It found that Mr. Lara “jumped straight into the deep end” 

of the DTO and “clearly had the trust of” DTO members because he transported “a 

substantial amount of money” and “a substantial amount of methamphetamine.” 

App., Vol. 3 at 42. These findings speak to “the degree to which [he] understood the 

scope and structure of the criminal activity,” “the degree to which [he] participated in 

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planning or organizing the criminal activity,” and “the nature and extent of [his] 

participation in the commission of the criminal activity.” U.S.S.G. 

§§ 3B1.2 n.3(C)(i), (ii), (iv). 

ii. Factual argument 

The district court denied a mitigating role adjustment. App., Vol. 3 at 43. We 

review for clear error. See Nkome, 987 F.3d at 1268 (10th Cir. 2021) (“The [district] 

court’s denial of a mitigating-role adjustment is a factual determination and, 

accordingly, we review it for clear error.”). The court did not clearly err. The PSR 

and the Government’s evidence supported the court’s decision. Mr. Lara argues the 

court should have weighed the five factors differently and should have granted him 

the adjustment, but the court’s analysis does not leave us “with the definite and firm 

conviction that a mistake has been made.” Delgado-Lopez, 974 F.3d at 1191 

(quotations omitted). 

B. Importation Enhancement 

Mr. Lara argues the district court erroneously held the importation 

enhancement does not require scienter. Aplt. Br. at 21-22, 42-56. Because he fails to 

challenge the district court’s alternative grounds for applying the enhancement, we 

affirm. 

Legal Background 

a. U.S.S.G. § 2D1.1(b)(5) 

U.S.S.G. § 2D1.1(b)(5) states that the court should increase the base offense 

level by two “[i]f . . . the offense involved the importation of . . . methamphetamine 

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or the manufacture of . . . methamphetamine from listed chemicals that the defendant 

knew were imported unlawfully.” Id. (emphasis added). 

The Guidelines do not specify whether the knowledge requirement applies 

only to “the manufacture of . . . methamphetamine from listed chemicals” or whether 

it applies also to “the importation of . . . methamphetamine.” Id. We have not 

resolved this question. See United States v. Redifer, 631 F. App’x 548, 565 

(10th Cir. 2015) (unpublished) (declining to decide the issue); United States v. 

Beltran-Aguilar, 412 F. App’x 171, 175 n.2 (10th Cir. 2011) (unpublished) (declining 

to resolve the issue but noting that the Guideline “appear[ed] to impose a scienter 

requirement only when” the offense involved the importation of listed 

methamphetamine precursors). 

b. Preservation 

“Our law is clear: The first task of an appellant is to explain to us why the 

district court’s decision was wrong.” United States v. Martinez, 92 F.4th 1213, 1265 

(10th Cir. 2024) (quotations omitted). Thus, “[i]f the district court states multiple 

alternative grounds for its ruling and the appellant does not challenge all those 

grounds in the opening brief, then we may affirm the ruling.” Rivero v. Bd. of 

Regents of Univ. of N.M., 950 F.3d 754, 763 (10th Cir. 2020).2 We may affirm on an 

2 See also GCIU-Emp. Ret. Fund v. Coleridge Fine Arts, 808 F. App’x 655, 

665-66 (10th Cir. 2020) (unpublished) (explaining “[w]e must uphold the district 

court’s unchallenged” alternative ground because the appellant did not “meaningfully 

address” it in the opening brief despite “expressly grappl[ing]” with it on reply); 

N8 Med., Inc. v. Colgate-Palmolive Co., 727 F. App’x 482, 488 (10th Cir. 2018) 

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unchallenged alternative ground because “the second alternative stands as an 

independent and adequate basis, regardless of the correctness of the first alternative.” 

Shook v. Bd. of Cnty. Comm’rs of Cnty. of El Paso, 543 F.3d 597, 613 n.7 

(10th Cir. 2008).3

Application 

Mr. Lara challenges the district court’s determination at sentencing that the 

importation enhancement does not require scienter. Aplt. Br. at 21-22, 42-56. But 

the court also applied the enhancement for two alternative reasons that Mr. Lara fails 

to challenge on appeal. 

After stating that the importation enhancement does not require scienter, the 

district court continued: “[E]ven if the knowledge requirement were to apply . . . , 

there is a fair probability that [Mr. Lara] actually knew that the methamphetamine 

was from Mexico,” and “even if not, certainly . . . he should have reasonably known 

the methamphetamine was being imported from Mexico.” App., Vol. 3 at 40; see 

(unpublished) (finding the appellant’s failure to address the district court’s alternative 

ground in its opening brief “constituted a waiver” and the appellant addressing it on 

reply “was too late to prevent a waiver”); United States v. Barela, 561 F. App’x 738, 

740 (10th Cir. 2014) (unpublished) (same). 

3 See also Martinez, 92 F.4th at 1265 (“[A]bsent . . . a challenge [to the district 

court’s alternative ground], we may uphold the district court judge’s ultimate 

decision . . . without reaching the merits.”); United States v. Wells, 38 F.4th 1246, 

1262 n.12 (10th Cir. 2022) (“When a district court rejects a claim on . . . independent 

grounds, an appellant must challenge each ground or risk waiver of the issue 

generally.”); Starkey ex rel. A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1252 

(10th Cir. 2009) (“When an appellant does not challenge a district court’s alternate 

ground for its ruling, we may affirm the ruling.”). 

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also id. at 41 (“[H]e certainly should have reason to know that the drugs were being 

imported from Mexico.”). The court therefore determined that two adequate 

alternative grounds justified the enhancement. See Berna v. Chater, 101 F.3d 631, 633 

(10th Cir. 1996) (finding the district court relied on an alternative rationale the appellant 

needed to challenge when it held that “even if [the appellant] could establish that she was 

incapable of performing her past relevant work,” she could perform other jobs 

(quotations omitted)).4

Mr. Lara needed to challenge the district court’s alternative grounds or 

“necessarily lose[].” Shook, 543 F.3d at 613 n.7; see also United States v. Trujillo, 

247 F. App’x 139, 145 (10th Cir. 2007) (unpublished) (“Where an appellant challenges 

only one of two alternative rationales supporting a particular decision, the appellant’s 

success on appeal is foreclosed, regardless of the merits of his arguments relating to the 

challenged ground.”). He does not challenge the district court’s alternative knowledge 

grounds in his opening brief. See Aplt. Br. 21-22, 43-56. Failure to brief an issue in 

the opening brief generally waives the issue. See Rivero, 950 F.3d at 763-64. 

4 See also Murdock Acceptance Corp. v. United States, 350 U.S. 488, 490 (1956) 

(“The District Court also based its decision on the alternative ground that, even if the 

requirements of the statute were technically met, remission would be denied in the 

discretion of the court.”); United States v. Battle, No. 21-3128, 2022 WL 484031, at *1-2 

(10th Cir. Feb. 17, 2022) (unpublished) (finding the district court relied on an alternative 

rationale that the appellant needed to challenge when it held that “[e]ven if [the appellant] 

could establish an extraordinary and compelling reason, the § 3553(a) factors would not 

support a reduction in sentence” (quotations omitted)). 

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Mr. Lara asserts in his reply brief that he did not need to challenge the 

alternative grounds because the district court held there was a “fair probability” that 

Mr. Lara actually knew the methamphetamine was imported, which “[f]all[s] short” 

of the preponderance of the evidence standard governing sentencing enhancements. 

Aplt. Reply Br. at 8 (quotations omitted). This argument fails for three reasons. 

First, Mr. Lara cites no authority for his argument that we must evaluate the 

merits of the district court’s alternative grounds to determine whether he needed to 

challenge them on appeal. See id. at 8-9. His argument appears to be an ill-fated 

back-door attempt to avoid the fact that he waived such a challenge. 

Second, even if Mr. Lara’s argument, raised for the first time in his reply brief, 

can be read as challenging the district court’s alternative grounds, “[i]n this Circuit, 

we generally do not consider arguments made for the first time on appeal in an 

appellant’s reply brief and deem those arguments waived.” Leffler, 942 F.3d at 1197; 

see also Rivero, 950 F.3d at 763 (affirming because “[t]he opening brief d[id] not 

even mention th[e] alternative ground”). Mr. Lara does not argue plain error. See 

Spratling v. Sovereign Staffing Grp., Inc., 771 F. App’x 845, 845 (10th Cir. 2019) 

(unpublished) (declining to consider the appellant’s challenge to an alternative 

ground raised for the first time in his reply brief because he “did not urge plain 

error”). 

Third, Mr. Lara’s “fair probability” argument does not contend with the 

district court’s additional alternative ground: “that he certainly should have reason to 

know that the drugs were being imported from Mexico.” App., Vol. 3 at 41. 

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III. CONCLUSION 

We affirm. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

Appellate Case: 23-6057 Document: 010111063383 Date Filed: 06/11/2024 Page: 19