UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. REYNA MENDOZA-HARO a/k/a Reyna Mendoza, a/k/a Reyna, a/k/a Reyna Gonzalez, a/k/a Amanda Gonzalez, Defendant - Appellant. No. 14-1044 (D.C. No. 1:12-CR -00242-WJM-1) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , HARTZ and MATHESON , Circuit Judges.

Reyna Mendoza-Haro pled gu ilty to conspiracy to possess with intent to distribute methamphetamine, which is subject to a ma ndatory minimum sentence of ten years in prison. See 21 U.S.C. § 841(b)(1)(A). Based on Ms. Mendoza-Haro’s substantial assistance, the Government moved for a down ward departure under 18 U.S.C. § 3553(e) and United States Sentencing Guideline (“ U.S.S.G.”) § 5K1.1 and recommended a 36- month prison sentence. The district court granted the motion, but imposed an 84-month

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10 th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 18, 2014
Elisabeth A. Shumaker Clerk of Court-2- sentence. Ms. Mendoza-Haro appeals. Sh e argues the court erred when it based her sentence on constitutionally-priv ileged testimony, other impr oper factors under § 3553(e) and § 5K1.1, and faulty anal ysis under 18 U.S.C. § 3553( a). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we disagr ee and affirm the sentence.
I. BACKGROUND A federal grand jury indicted Reyna Mendoza-Haro and ten codefendants for multiple crimes relating to the possession an d distribution of methamphetamine. She pled guilty to one count of conspiracy to possess with intent to distribute methamphetamine in violati on of 21 U.S.C. §§ 846, and 841(a)(1) and (b)(1)(A)(viii), which carries a 10-year mandatory minimum sentence. Under the plea agreement, Ms. Mendoza-Ha ro agreed to coop erate and provide substantial assistance to the Government in its case against her codefendants. In exchange, the Government agreed to file a motion for downwa rd departure under U.S.S.G. § 5K1.1 and request a sentence of 36 months in prison. The plea agreement stated “the ultimate question of whether a de parture is to be gran ted and the amount of that departure will rest solely within the discretion of the sent encing Court.” App. at 44. At Ms. Mendoza-Haro’s change of plea hear ing, the district court emphasized it was not bound by the sentence recommend ed in the plea agreement. Ms. Mendoza-Haro cooperated by provid ing information and testifying for the prosecution at the trial of her codefenda nt, Ricky Henry Cisneros. Based on her cooperation, the Government filed the § 5K.1.1/§ 3553(e) motion for a downward-3- departure below the 10-y ear statutory minimum. 1 Although the plea agreement did not require it to do so, the Government also moved for a downward variance under § 3553(a). 2 Both the Government and Ms. Mend oza-Haro asked the court to impose a 36-month sentence. The Government also move d for a decrease of three offense levels for acceptance of responsibility, and Ms. Mendoza-Haro moved for a downward departure from criminal hist ory category III to category II. At the sentencing hearing, the district court first granted the offense level and criminal history motions, resulting in an advi sory Guidelines range of 120-121 months based on a total offense level of 29, a crim inal history category of II, and a statutory minimum sentence of 120 months. See 21 U.S.C. § 841(b)(1)(A) (providing for a tenyear mandatory minimum sentence). The district court granted the Governme nt’s downward departure and variance motions, but only the § 5K1.1/§ 3553(e) moti on allowed the court to impose a sentence below the statutory minimum of 120 months . Granting a downward variance motion

1 The Government’s written motion referenced only § 5K1.1. At oral argument, the Government moved to amend the motion to add § 3553(e) as a basis for departing from the mandatory minimum sentence. The district court granted this motion.

2 When a court reaches a sentence above or below the recommended Guidelines range through app lication of Chapters Four or Five of the Sentencing Guidelines, the resulting increas e or decrease is referred to as a ‘departure.’ When a court enhances or detracts from the re commended range through application of § 3553(a) factors, however, the increase or decrease is called a ‘variance.’ United States v. A.B. , 529 F.3d 1275, 1278 n.3 (10th Cir. 2008) (q uotations omitted).-4- allows a court to sentence below the Guid elines range but not below the mandatory minimum. See United States v. Altamirano-Quintero , 511 F.3d 1087, 1089-90 (10th Cir. 2007) (noting a district court may only de part below a mandatory minimum through § 3553(e) and (f)). As our case law analysis below shows, the sentencing court can use factors unrelated to substantial assistance only to limit the extent of departure under § 5K1.1/ § 3553(e). The district court here did not specify the exte nt of its § 5K1.1/§ 3553(e) departure based solely on substantial assistance factors. It said a 36-month sentence did not “meaningfully reflect the seriousness of [Ms. Mendoza-Haro’s] offense,” App. at 199, because she testified that “she was m oving a hundred pounds of methamphetamine four years in a row through 2010.” App. at 175. The court also said such a sentence would create a disparity with similarly situat ed defendants. Based on some combination of the § 5K1.1/§ 3553(e) departure and the § 3553(a) factors, the court sentenced Ms. Mendoza-Haro to 84 months in prison followed by five year s of supervised release. Ms. Mendoza-Haro appeals her sentence.
II. DISCUSSION Ms. Mendoza-Haro argues the district c ourt (A) violated her Fifth Amendment rights by using the testimony she gave du ring Mr. Cisneros’s trial against her, (B) improperly considered information other th an her substantial assi stance to determine the sentence departure under § 3553(e) and § 5K1.1, and (C) erred in considering the § 3553(a) factors by comparing her to non-si milarly situated defendants and ignoring her-5- unique circumstances, including the safety risk from assisting the Government.
A. Fifth Amendment Whether the district court violated Ms . Mendoza-Haro’s privilege against selfincrimination is a question of la w, which we review de novo. United States v. RivasMacias , 537 F.3d 1271, 1278 (10th Cir. 2008); see also United States v. Angelos , 433 F.3d 738, 754 (10th Ci r. 2006) (“We review constitutiona l challenges to a sentence de novo.”). The Fifth Amendment provides that “[ n]o person shall . . . be compelled in any criminal case to be a witness agains t himself.” U.S. Const. amend. V. 3
Ms. Mendoza-Haro contends the distri ct court’s reliance at sentencing on her testimony from Mr. Cisneros’s trial violat ed her Fifth Amendment privilege. Her reliance on Kastigar v. United States , 406 U.S. 441 (1972) is misplaced. In Kastigar , the petitioners invoked their Fifth am endment privileges and refused to testify in a grand jury proceeding, even after being granted immunity under 18 U.S.C. § 6002. Id. at 442-43. The Supreme Court affirmed their contempt convictions, holding § 6002’s grant of immunity from the use and derivative use of their testimony was sufficient to compel testimony over a privilege claim. Id. at 460-62. Ms. Mendoza-Haro did not testify under a grant of immunity. She voluntarily

3 Ms. Mendoza-Haro also cites the Fift h Amendment Due Process Clause in her briefing, but she does not explain how her due process rights were violated. We decline to consider a due process argument because Ms. Mendoza-Haro has not adequately briefed it. See Bronson v. Swensen , 500 F.3d 1099, 1104 (1 0th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appella nt’s opening brief.”).-6- testified under a plea agreement. Changing course in her reply brief, Ms. Mendoza-Haro argues the plea agreement impliedly promised her testimony would not be used against he r. This argument is raised too late for appellate review. See United Sates v. Mullikin , 758 F.3d 1209, 1210 n.2 (10th Cir. 2014) (“This court does not ordinarily re view issues raised fo r the first time in a reply brief.” (quotations omitted)). Moreove r, the plea agreement contained no such implied promise. The district court’s consideration of Ms . Mendoza-Haro’s tria l testimony did not violate the Fifth Amendment.
B. Procedural Reasonableness Ms. Mendoza-Haro challenges the proced ural reasonableness of her sentence, arguing the district court erred in (1) cons idering information other than substantial assistance in determining the sentence de parture under § 3553(e ) and § 5K1.1, and (2) analyzing the § 3553(a) factors. Procedur al reasonableness “relates to the manner in which the district court calculated and explained the sentence.” United States v. A.B. , 529 F.3d 1275, 1278 (10th Cir. 2008). We ordinarily review the procedural reasonableness of a sentence for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007).
1. Sections 3553(e) and 5K1.1 Because Ms. Mendoza-Haro did not challe nge the district court’s application of § 3553(e) and § 5K1.1 at se ntencing, we analyze this argument for plain error. See A.B. ,-7- 529 at 1280. Under the plain error standard, she “must show: (1) an error, (2) that is plain, which means clear or obvious under cu rrent law, and (3) that affects substantial rights.” United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007) (quo tations omitted). If she satisfies these criteria, we (4) “may exercise discreti on to correct the error if it seriously affects the fairness, integrity, or pu blic reputation of judi cial proceedings.” Id. Ms. Mendoza-Haro argues the district c ourt could consider only her substantial assistance in departing downwa rd under § 3553(e) and § 5K1. 1. She contends the court erred because it improperly considered her te stimony from Mr. Cisneros ’s trial regarding the quantity of drugs she ha d “moved” in limiting its do wnward departure. Ms. Mendoza-Haro’s challenge fails because there was no error. If a crime carries a mandatory minimum se ntence, a district court must impose at least the mandatory minimum unless a statutory exception applies. See United States v. Campbell , 995 F.2d 173, 175 (10th Cir. 1993) (“Wh en a sentence is fixed by statute, any exception to the statutory direc tive must also be given by statute.”). Section 3553(e) provides a limited exception: Limited authority to impose a se ntence below a statutory minimum.

-- Upon motion of the Government, the court shall have the authority to impose a sentence below a level esta blished by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or pros ecution of another pers on who has committed an offense. Such sentence shall be impos ed in accordance w ith the guidelines and policy statements issu ed by the Sentencing Co mmission pursuant to [28 U.S.C. § 994]. 18 U.S.C. § 3553(e).-8- “[T]he Sentencing Commission promulga ted U.S.S.G. § 5K1.1 to implement § 3553(e).” A.B. , 529 F.3d at 1281. 4 Section 5K1.1 provide s, “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has comm itted an offense, the court may depart from the guidelines.” U.S.S.G. § 5K1.1. It lists five nonexclusive factors the court may consider in determining the approp riate reduction for a defendant’s substantial assistance: (1) the court’s evaluation of the si gnificance and usefulness of the defendant’s assistance, taking into consideration the [G]overnment’s evaluation of the assistance rendered; (2) the truthfulness, completeness, a nd reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance. U.S.S.G. § 5K1.1(a).

4 28 U.S.C. § 994(n) instruct s the Sentencing Commission to: assure that the guidelines reflect th e general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statut e as a minimum senten ce, to take into account a defendant’s substantial assi stance in the investigation or prosecution of another person w ho has committed an offense. A motion made under § 5K1.1 authorizes only a departure from the Guidelines range. Melendez v. United States , 518 U.S. 120, 123-26 (1996). A departure below a statutory mandatory minimum requires the government to file a motion pursuant to § 3553(e). Id. Nonetheless, “[s]ection 5K1.1(a) may guide th e district court when it selects a sentence below the statutory minimum, as well as when it selects a sentence below the Guidelines range.” Id. at 129.-9- Ms. Mendoza-Haro argues the district c ourt erred in considering factors beyond her substantial assistance to determine an appropriate sentence under § 3553(e) and § 5K1.1. She relies on our decision in A.B. , which, she claims, holds that when a district court imposes a sentence below the statutory mi nimum, it “may not consider factors other than the substantial assist ance of the defendant.” Aplt. Br. at 8 (citing A.B. , 529 F.3d at 1280). But Ms. Mendoza-Haro overstates our holding. A sentencing court can consider such factors if they serve to lim it the extent of the departure.
In A.B. , the district court imposed a 117- month sentence after granting the Government’s motion for a downward departur e under § 3553(e) and § 5K1.1. 529 F.3d at 1276-77. The defendant ar gued the § 3553(a) factors ca lled for a lower sentence. Id. at 1280. We disagreed and ex plained that when a sentence is reduced below a statutory mandatory minimum under § 3553(e) based on substantial assistance provided by the defendant, § 3553(a) factors canno t reduce the sentence further. Id. at 1285. The district court here di d not use factors beyond Ms. Mendoza-Haro’s substantial assistance to depart further downward. Rather, it used information from her trial testimony to limit its departure. This is consistent with our holding in A.B. and finds support from other circuits. The Third Circuit has held “a district c ourt may consider factors unrelated to the defendant’s cooperation w ith the [G]overnment as a basis for choosing to limit the extent of a departure pursuant to § 5K1.1.” United States v. Winebarger , 664 F.3d 388, 394 (3d Cir. 2011) (emphasis in original); see also United States v. Casiano , 113 F.3d 420, 428--10- 31 (3d Cir. 1997) (limiting § 5K1.1 departur e based on the extreme seriousness of the defendant’s crime and impact on the vic tim). The court reasoned “‘it was not inconsistent for the Sentencing Commission to have circumscribed the district court’s discretion for departures for substantial assistance in only one direction.’” Winebarger , 664 F.3d at 394 (quoting Casiano , 113 F.3d at 430). The Ninth Circuit similarly has held that after a district court grants a departure under § 3553(e), it “may increase a sentence on the basis of the § 3553(a) factors, but may not reduce the sentence further.” United States v. Jackson , 577 F.3d 1032, 1036 (9th Cir. 2009). It explained that a § 3553(e ) departure effectively establishes a new mandatory minimum sentence. Id. The court therefore may not reduce the sentence further based on the § 3553(a) factors. Id. It may, however, c onsider the § 3553(a) factors to determine whether to depart to the full extent warranted by the defendant’s substantial assistance. Id. ; see also United States v. Williams , 551 F.3d 182, 186 (2d Cir. 2008) (“[A]fter the court has determined th e full extent of the downward departure it would award based on [the defendant’s ] substantial assist ance, [it may] consider other factors, including those in § 3553(a), to decide whether to depart to that full extent.”). We agree with the foregoing cases. Alt hough it would have been inappropriate for the district court to consider § 3553(a) factors beyond Ms. Mendoza-Haro’s assistance to depart further downward, it did not err in cons idering those factors to limit the extent of the departure.-11- 2. Section 3553(a) Factors Ms. Mendoza-Haro argues the district c ourt erred in considering the § 3553(a) factors by comparing her to non-similarly situ ated defendants and failing to consider her unique circumstances. See 18 U.S.C. § 3553(a)(1), (a)(6). Ms. Mendoza-Haro did not object to this comparison in the district court, so we again review for plain error. See A.B. , 529 F.3d at 1280. Ms. Mendoza-Haro’s failure to argue for plain error in her brief “surely ma rks the end of the road for an argument for reversal not first presented to the district court.” Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011); see United States v. De Vaughn , 694 F.3d 1141, 1158-59 (10th Cir. 2012) (“Because Defendant has not ev en tried to show how the alleged errors were ‘plain,’ we need not engage a full discussion of the merits.”). Her additional argument that the district c ourt failed in its § 3553(a) analysis to consider her unique circumstances, incl uding the safety risk from assisting the Government, Aplt. Br. at 10-11, also fails beca use, as explained above, the district court could not rely on § 3553(a) factor s to depart further downward. A.B. , 529 F.3d at 1285.-12- III. CONCLUSION For the foregoing reasons, we a ffirm Ms. Mendoza-Haro’s sentence. 5
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge

5 During the sentencing hearing, the dist rict court indicated it could not consider the safety risk to Ms. Mendoza- Haro. The court was incorrect insofar as the extent of the § 5K1.1/§ 3553(e) departure is concerned. Section 5K1.1(a)(4) states a court may consider “any injury suffered or any danger or risk of injury to the defendant or his family resulting from his assistance.” Ms. Mendoza, however, does not argue that the district court erred in its § 3553(e) analysis by failing to consider her safety risk under § 5K1.1(a)(4). This issue was first raised in this appeal at oral argument by a member of the panel. She does briefly argue the court sh ould have considered safety as part of the § 3553(a) analysis, Aplt. Br. at 10-11, but that is a separate argument, which we addressed and rejected above.