UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ROMAN JUAREZ-SANCHEZ, 

 Defendant - Appellant. 

No. 13-4054 

(D.C. No. 2:12-CR-00515-TS-RTB-1) 

(D. Utah)

 

ORDER AND JUDGMENT*

 

Before PHILLIPS, Circuit Judge, PORFILIO, Senior Circuit Judge, and 

BALDOCK, Circuit Judge. 

 

 Roman Juarez-Sanchez appeals his conviction and sentence for cultivating 

marijuana in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 

28 U.S.C. § 1291 and dismiss this appeal. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 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 

March 25, 2014

Elisabeth A. Shumaker 

Clerk of Court
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BACKGROUND

 In July 2012, a sheriff’s deputy pulled over a vehicle that had been seen near a 

marijuana-cultivating operation on public land in Iron County, Utah. The deputy 

detected the smell of marijuana inside the vehicle and obtained the consent of the 

driver, Gabriela Lopez, to search the vehicle. Inside, the deputy and other officers 

found eighty-eight pounds of marijuana. They arrested Lopez and her two 

passengers, Marcelo Contreras and Juarez-Sanchez, and they raided the cultivating 

operation, seizing 4,211 marijuana plants. 

 At trial, Lopez and Contreras testified against Juarez-Sanchez. Lopez stated 

that in California, Juarez-Sanchez bought the car they were arrested in “to pick up 

marijuana,” R, Vol. III at 131; he bought the gas for the trip to Utah; he gave her 

directions; he called ahead to the operation and told someone to place a branch in the 

road so they would know where to stop; he brought food to the workers at the 

operation; and they left the operation with Contreras and several bags of marijuana. 

Contreras testified that he helped cultivate the marijuana; Juarez-Sanchez was one of 

his three “bosses,” id. at 184; Juarez-Sanchez asked him after arriving at the 

operation “if there was quite a bit still to do to finish cutting the marijuana,” id. at 

185; and that after being arrested, Juarez-Sanchez complained to him “that the other 

bosses were not helping him,” id. at 186. 

 There was also testimony from law-enforcement officers who interviewed 

Juarez-Sanchez after his arrest. They testified that Juarez-Sanchez said “his job was 
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to bring supplies to the garden and also to take marijuana from the garden back to 

California,” id., Vol. IV at 26, and that he did so at the direction of one of the other 

bosses. Juarez-Sanchez’s phone showed 194 calls to that boss in the one-month 

period before his arrest. 

 The jury found Juarez-Sanchez guilty of manufacturing a controlled substance 

by cultivating 1,000 or more marijuana plants. The U.S. Probation Office prepared a 

presentence report (PSR), noting that Juarez-Sanchez faced a statutory 

mandatory-minimum sentence of 120 months and that the Sentencing Guidelines 

established a range of 121-to-151 months’ imprisonment based on a criminal history 

category of one and an offense level of thirty-two. In calculating the offense level, 

the Probation Office included a four-level enhancement to reflect Juarez-Sanchez’s 

role as an organizer or leader of a criminal activity involving five or more persons. 

See U.S.S.G. § 3B1.1(a). Without the enhancement, the Guidelines range would have 

been 78 to 97 months’ imprisonment. Additionally, the PSR noted that 

Juarez-Sanchez was subject to a statutorily mandated 60-month term of supervised 

release. 

 At sentencing, the court found that Juarez-Sanchez qualified as an organizer or 

leader of criminal activity, although “it [was] a close call.” R., Vol. V at 27. The 

court reasoned: 

Juarez-Sanchez’s role in this crime included buying and delivering food 

supplies, renting and/or purchasing vehicles to transport supplies and 

workers to and from the marijuana grow. And he recruited others to 

assist him on this specific . . . occasion. 
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 . . . [H]e identified himself as one of three bosses in the 

organization. He communicated directly with . . . the on-site grow 

supervisor[ ] to coordinate delivery of the food and receipt of freshly 

harvested marijuana. His ability to find the grow site in the middle of 

the night as he did indicates that he had been there before. 

 [He] had over 200 telephone contacts in a one-month period with 

. . . another boss in the organization. 

R., Vol. V at 22. 

 Thus, as an organizer or leader of criminal activity, Juarez-Sanchez could not 

take advantage of the 78-97 month Guidelines range through a lesser offense level 

and the safety valve in 18 U.S.C. § 3553(f), which could have nullified the 

mandatory minimum sentence.1

 Finally, the court rejected the government’s request 

for a sentence in the middle of the Guidelines 121-151 month range, and it sentenced 

Juarez-Sanchez to 120 months’ imprisonment, with 60 months of supervised release. 

 On appeal, Juarez-Sanchez’s counsel filed an Anders brief and a motion to 

withdraw.2

 Juarez-Sanchez filed a pro se supplemental brief. The government 

declined to file a brief. 

 

1

 The safety valve is available if 

the defendant has a minimal criminal history, did not use or threaten 

violence, possess a dangerous weapon, cause death or serious bodily 

injury, was not a leader, organizer, or supervisor of others in the 

offense, was not engaged in a continuing criminal enterprise, and . . . 

had truthfully provided to the Government all information and evidence 

the defendant has concerning the offense. 

United States v. Salzano, 158 F.3d 1107, 1117-18 (10th Cir. 1998). 

2

 “The Supreme Court’s decision in Anders v. California, 386 U.S. 738 (1967), 

authorizes counsel to request permission to withdraw where counsel conscientiously 

(continued) 
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DISCUSSION

I. Counsel’s Anders Brief 

A. Sufficiency of the Evidence 

 Counsel for Juarez-Sanchez raises and dismisses a potential challenge to the 

sufficiency of the evidence underlying the cultivating-marijuana conviction. 

“We review the sufficiency of evidence de novo” to determine whether “any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” United States v. Serrato, 742 F.3d 461, 472 (10th Cir. 2014). 

 Our review indicates that the evidence was more than sufficient to support 

Juarez-Sanchez’s conviction for cultivating marijuana. “To convict [Juarez-Sanchez] 

for manufacturing at least 100[0] plants of marijuana, the jury had to find [he] 

(1) knowingly or intentionally manufactured marijuana plants, and (2) he knew the 

amount of the controlled substance he manufactured was at least 100[0] plants.” 

United States v. Prince, 647 F.3d 1257, 1269-70 (10th Cir. 2011). 

 The evidence at trial showed that Juarez-Sanchez was one of the “bosses” for 

the cultivating operation, he bought a car to pick up the marijuana grown there, he 

took food to the workers, he picked up one of the workers (Contreras) and 

eighty-eight pounds of marijuana harvested from the operation, and he spoke with 

Contreras about how much marijuana remained. Thus, we conclude that any rational 

 

examines a case and determines that any appeal would be wholly frivolous.” United 

States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) 
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trier of fact could have found Juarez-Sanchez guilty beyond a reasonable doubt of 

cultivating marijuana. 

B. Safety Valve 

 Juarez-Sanchez’s counsel next raises and dismisses a potential challenge to the 

district court’s decision to not apply the § 3553(f) safety valve at sentencing. “We 

review the district court’s determination of a particular defendant’s eligibility for 

relief under § 3553(f) for clear error.” United States v. Gonzalez–Montoya, 161 F.3d 

643, 651 (10th Cir. 1998). 

 As the district court noted, Juarez-Sanchez qualified as an organizer or leader 

of the cultivating operation given that he made the arrangements necessary to deliver 

food to the workers and pick up harvested marijuana. In the process, he directed 

Lopez as they traveled to the operation and queried Contreras about the operation’s 

progress. And while Juarez-Sanchez may have taken directions from another one of 

the operation’s bosses, he nevertheless acted as an organizer or leader of the 

operation. Under these circumstances, we conclude that the district court did not 

clearly err in denying Juarez-Sanchez the benefit of the § 3553(f) safety valve. 

II. Juarez-Sanchez’s Pro Se Supplemental Brief 

A. Traffic Stop and Seizure of Marijuana 

 Juarez-Sanchez argues pro se that the traffic stop and seizure of marijuana 

(apparently both in the car and at the cultivating operation) violated his Fourth 

Amendment rights. But he did not raise these arguments in the district court and he 
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does not provide good cause for why they were not raised. Consequently, his Fourth 

Amendment arguments are waived. See United States v. Burke, 633 F.3d 984, 988-89 

(10th Cir. 2011) (“[A] suppression argument raised for the first time on appeal is 

waived (i.e., completely barred) absent a showing of good cause for why it was not 

raised before the trial court.”). 

B. Safety Valve 

 Regarding his sentence, Juarez-Sanchez argues that under the Sixth 

Amendment, only a jury could make the finding that he was an organizer or leader of 

criminal activity. He relies on Alleyne v. United States, 133 S. Ct. 2151, 2155 

(2013), which held that “any fact that increases the mandatory minimum is an 

‘element’ that must be submitted to the jury.”3

 But the mandatory minimum sentence 

here was not increased by the finding that Juarez-Sanchez was an organizer or leader. 

Rather, that finding simply precluded Juarez-Sanchez from using the safety valve in 

§ 3553(f) to avoid the mandatory minimum sentence. See United States v. Harakaly, 

734 F.3d 88, 98 (1st Cir. 2013) cert. denied, 2014 WL 499422 (U.S. Mar. 10, 2014) 

(noting that Alleyne applies only to facts that increase the mandatory minimum and 

concluding that “[a] fact that precludes safety-valve relief does not trigger or increase 

the mandatory minimum, but instead prohibits imposition of a sentence below a 

mandatory minimum already imposed as a result of the guilty plea or jury verdict.”). 

 

3

 “Alleyne applies to cases like this one that were on direct appeal when it was 

released.” United States v. Acosta-Colon, 741 F.3d 179, 192 n.6 (1st Cir. 2013). 
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Thus, the district court’s finding that Juarez-Sanchez was an organizer or leader did 

not violate the Sixth Amendment. 

C. Supervised Release 

 Juarez-Sanchez next asserts, without any discussion, that “[t]he district court 

erred in imposing a 60-month supervised release sentence on this known deportable 

Appellant absent individualized U.S.S.G. Amendment 742 consideration.” Pro Se 

Supplemental Br. at 5. But in the district court, he did not make this or any other 

argument against the imposition of supervised release despite having the opportunity 

to do so. And while we would nevertheless review for plain error, see United States 

v. Mike, 632 F.3d 686, 691 (10th Cir. 2011), Juarez-Sanchez offers nothing in support 

of even plain-error review. “[T]he failure to argue for plain error and its application 

on appeal surely marks the end of the road for an argument for reversal not first 

presented to the district court.” United States v. Lamirand, 669 F.3d 1091, 1099 n.7 

(10th Cir. 2012) (ellipsis and internal quotation marks omitted). 

CONCLUSION

 For the reasons discussed above, we conclude that there are no nonfrivolous 

grounds for appeal. We therefore grant counsel’s motion to withdraw and dismiss 

this appeal. 

 Entered for the Court 

 John C. Porfilio 

 Senior Circuit Judge