UNITED STATES CO URT 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 c onviction 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 di smiss this appeal.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - B ACKGROUND In July 2012, a sheriff’s deputy pulled ove r a vehicle that had been seen near a marijuana-cultivating operation on public land in Iron County, Utah. The deputy detected the smell of mariju ana inside the vehicle and obtained the consent of the driver, Gabriela Lopez, to se arch 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-S anchez, and they ra ided the cultivating operation, seizing 4, 211 marijuana plants. At trial, Lopez and Contreras testifie d against Juarez-Sanch ez. Lopez stated that in California, Juarez-Sanchez bought th e car they were arre sted in “to pick up marijuana,” R, Vol. III at 131; he bought th e gas for the trip to Utah; he gave her directions; he called ahead to the operation a nd 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 se veral bags of marijuana. Contreras testified that he helped cultivat e 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 fini sh 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-en forcement officers who interviewed Juarez-Sanchez after his arrest. They testified that Ju arez-Sanchez said “his job was- 3 - to bring supplies to the gard en and also to take mariju ana 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-S anchez 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 fa ced 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 thir ty-two. In calculati ng the offense level, the Probation Office included a four-level enhancement to refl ect Juarez-Sanchez’s role as an organizer or lead er of a criminal ac tivity involving five or more persons.
See U.S.S.G. § 3B1.1(a). Without the enhan cement, 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 te rm of supervised release. At sentencing, the court found that Juar ez-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 spec ific . . . occasion.- 4 - . . . [H]e identified himself as one of three bosses in the organization. He communicated dir ectly with . . . the on-site grow supervisor[ ] to coordinate delivery of the food and receipt of freshly harvested marijuana. Hi s ability to find the grow site in the middle of the night as he did indicates th at he had been there before. [He] had over 200 telephone cont acts 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, Juar ez-Sanchez could not take advantage of the 78-97 month Guide lines 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 reject ed the government’s request for a sentence in the middle of the Guidelines 121-151 m onth range, and it sentenced Juarez-Sanchez to 120 months’ imprisonment, w ith 60 months of supervised release. On appeal, Juarez-San chez’s counsel filed an Anders brief and a motion to withdraw. 2 Juarez-Sanchez filed a pro se su pplemental 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 wea pon, cause death or serious bodily injury, was not a leader, organizer, or supervisor of others in the offense, was not engaged in a conti nuing criminal enterprise, and . . . had truthfully provided to the Gove rnment 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 wh ere counsel conscientiously (continued)- 5 - D ISCUSSION 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 de termine whether “any rational trier of fact could have f ound 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 eviden ce was more than su fficient to support Juarez-Sanchez’s conviction fo r cultivating marijuana. “T o 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 subs tance 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 show ed 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 mariju ana harvested from the opera tion, and he spoke with Contreras about how much mari juana remained. Thus, we conclude that any rational

examines a case and determines that a ny appeal would be wholly frivolous.” United States v. Calderon , 428 F.3d 928, 930 (10th Cir. 2005)- 6 - trier of fact could have found Juarez-S anchez guilty beyond a reasonable doubt of cultivating marijuana. B. Safety Valve Juarez-Sanchez’s counsel next raises a nd 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-San chez qualified as an organizer or leader of the cultivating operation gi ven that he made the arrange ments 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 dire ctions from another one of the operation’s bosses, he nevertheless act ed as an organizer or leader of the operation. Under these circumstances, we c onclude that the district court did not clearly err in denying Juar ez-Sanchez the benefit of th e § 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 cu ltivating operation) violated his Fourth Amendment rights. But he di d not raise these arguments in the district court and he- 7 - 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] suppr ession argument raised for th e first time on appeal is waived (i.e., completely barre d) absent a showing of go od cause for why it was not raised before the trial court.”). B. Safety Valve Regarding his sentence, Juarez-S anchez argues that under the Sixth Amendment, only a jury could make the finding that he was an orga nizer 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 mandato ry 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 Ju arez-Sanchez was an organizer or leader. Rather, that finding simply precluded Juarez- Sanchez from using the safety valve in § 3553(f) to avoid the manda tory 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 incr ease the mandatory minimum and concluding that “[a] fact that precludes safety-valve relief does not trigger or increase the mandatory minimum, but instead prohi bits imposition of a sentence below a mandatory minimum already impos ed 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).- 8 - Thus, the district court’s finding that Juar ez-Sanchez was an orga nizer or leader did not violate the Sixth Amendment. C. Supervised Release Juarez-Sanchez next asserts, without any discussion, th at “[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 consid eration.” Pro Se Supplemental Br. at 5. But in the district court, he did not ma ke this or any other argument against the imposition of supervised release desp ite having the opportunity to do so. And while we would neve rtheless review for plain error, see United States v. Mike , 632 F.3d 686, 691 (10th Cir. 2011), Juar ez-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 e nd of the road for an argum ent for reversal not first presented to the district court.” United States v. Lamirand , 669 F.3d 1091, 1099 n.7 (10th Cir. 2012) (elli psis and internal quotation marks omitted). C ONCLUSION For the reasons discussed above, we c onclude that there are no nonfrivolous grounds for appeal. We th erefore grant counsel’s moti on to withdraw and dismiss this appeal. Entered for the Court John C. Porfilio Senior Circuit Judge