UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN MANUEL CORTEZ-DIAZ, Defendant - Appellant. No. 12-3219 (D.C. No. 2:11-CR-20031-CM-1) (D. Kan.)

ORDER AND JUDGMENT *

Before TYMKOVICH , BALDOCK , and PHILLIPS , Circuit Judges.
After a nine-month investigation, law enfo rcement arrested Juan Manuel Cortez-Diaz with about two pounds of pure methamphetamine in his car and, soon after, seized about seven more pounds at his stas h house. The evidence at trial showed that Cortez-Diaz ran a multi-state methamphetamine distribution ne twork centered in Kansas City, Kansas, and based on this evidence the jury convicted him of various drug possession and

* This order and judgment isn’t binding pre cedent, except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however, for its persuasive value consistent with Federal Rules of Appellate Procedure and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 6, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - distribution crimes. 1 The weight and purity of the methamphetamine, combined with leadership-role and drug-house enhancements, led to an advisory guideline sentence of life imprisonment—which the district cour t imposed. Cortez-Dia z now challenges the procedural and substantive reasonableness of th at sentence. We conclude that the district court committed no error, and we affirm.



### BACKGROUND Special Agent Matt Hall of Homeland Security Investigations 2 (HSI) began investigating Cortez-Diaz after a confidentia l informant (CI) reported that Cortez-Diaz had recently arrived in Kansas City from Califor nia to set up a drug-dis tribution network. On August 9, 2010, the CI bought meth amphetamine from Cort ez-Diaz at a local market. After providing the CI with $2,6 00 in buy-money, Agent Hall watched from a safe distance as Cortez-Diaz opened his tru nk and the two men completed the exchange. Following routine controlled-buy procedures, the agents recovered the two ounces of purchased methamphetamine. 3

1 The jury convicted Cortez-Dia z on five separate violations of 21 U.S.C. § 841(a)(1): (1) distributing more than five grams of methamphetamine (Count one, August 9, 2010); (2) distributing methamphetamine (Count tw o, October 6, 2010); (3) possession with intent to distribute methamphetamine (Count three, October 22, 2010); (4) distributing more than five grams of methamphetamine (Count four, December 8, 2010); and (5) possession with intent to distri bute more than 50 grams of methamphetamine (Count five, May 16, 2011).
2 Homeland Security Investigations is a part of the United States Department of Homeland Security, Immigrati on and Customs Enforcement.
3 The weight of the methamphetamine was la ter determined to be 49.4 grams with a 37.9% purity (18.7 grams of actual methamphetamine).- 3 - On September 22, 2010, the CI introduc ed Agent Hall to Co rtez-Diaz, who was accompanied by Alfredo Soto-Con treras. Agent Hall was acting in an undercover role as a driver for a parcel delivery company. Afte r being introduced, Agen t Hall complained to Cortez-Diaz about the poor quality of metham phetamine that Cortez-Diaz had sold the CI on August 9. Cortez-Diaz apologized, explaini ng that that methamphetamine hadn’t come from his usual supplier. He promised to make it up the next time Agent Hall bought methamphetamine from him or Soto-Contreras . During this same meeting, Agent Hall asked if he could transport drug money for Cortez-Diaz as part of his parcel service job. Agent Hall claimed that he already “ran money” for narcotics distributors and could do so all the way to California. Agent Hall testified that Cortez-Diaz expre ssed interest in the plan but needed to clea r it with his bosses. On October 6, 2010, Agen t Hall and the CI met with Cortez-Diaz and another associate, Martin Gonzalez. Th is meeting was set to continue discussing the possibility of Agent Hall’s transporting drug money for Cort ez-Diaz. Agent Hall arrived in a company van to make the story believable. Cortez-Diaz raised the possibility of using the van to take money to Oklahoma and to bring back more methamphetamine. During the meeting, Cortez-Diaz handed Agent Hall a shard of methamphetamine. 4 Agent Hall understood that Cortez-Diaz was proving to him that he could obtain hi gh-quality drugs. On October 22, 2010, Agent Hall and the CI we re again set to meet with Cortez-Diaz. Instead, Cortez-Diaz sent two other men, Martin Gonzalez and Alfredo Soto-Contreras, to

4 The methamphetamine weighed 0. 81 grams and was 99.2% pure.- 4 - explain that he couldn’t make the meeting but to reset it for that afternoon. Later, CortezDiaz came with Oscar Sotello and apologized for missi ng the earlier meeting. He attributed his delay to law enforcement’ s possibly having seized a load of his organization’s methamphetamine. Cortez-Diaz again expressed interest in using the parcel delivery company to run drug money to other cities but delayed making a final decision. Cortez-Diaz then showed Agent Ha ll an ounce of “good” methamphetamine and named a price—$1,300 for the ounce, or $18,500 for a pound. Agent Hall held the bagged methamphetamine and could see that it was very pure. Because he had no buyfunds, however, he declined to purchase and made an excuse that he couldn’t be carrying methamphetamine in the company van. On December 8, 2010, Agent Hall and the CI met again with Cortez-Diaz about transporting drug money and also to buy meth amphetamine. At this meeting, Cortez-Diaz told Agent Hall that he’d found another “sour ce” that would “drive the loads back and forth” but that “they” were still deciding whether to use Agent Hall’s delivery company locally. R. vol. II, at 300–01. Cortez-Diaz handed Agent Hall an ounce of pure-looking methamphetamine, and Agent Hall handed him $1,300. 5 Although Agent Hall tried to arrange another meeting with Co rtez-Diaz, it never happened. In late April 2011, HSI agents learned fro m a court-authorized wiretap that a man named Juan Razo may have be en working as Cortez-Diaz’s driver, taking drug money from Kansas City to California. In a series of monitored calls from May 13 to May 16,

5 The methamphetamine weighed 29. 5 grams and was 100% pure.- 5 - Razo told Cortez-Diaz that he was bringing nine cans or buckets of paint to Kansas City. The agents believed the “cans” or “buckets ” referred to kilogr ams or pounds of methamphetamine. From the call, they knew that about half the total load was destined for an unknown person, “Guerrillo.” During the calls, Cortez-Diaz directed Razo—he told him when to leave, some details about a stash house, that he could provide Razo with a place to sleep in Kansas City, and that he could avoid police detec tion by turning off his cell phone and using cruise control. On May 16, 2011, once Razo a rrived in Kansas City, he met with Cortez-Diaz at a flea market. HSI witnessed this meeting thr ough covert surveillance of Cortez-Diaz. Cortez-Diaz then drove Razo to the stash house on Washington Avenue in Kansas City, Kansas. They stayed there about five minutes before Cortez-Diaz took Razo back to the flea market and returned to his apartment. Later that evening, Cortez-Diaz returned to the flea market, picked up Razo , and the two men returned to the stash house. While at the house, Cortez-Diaz received a ca ll from “Miguel” and arranged to sell him a pound of methamphetamine. Soon after the call, HSI agents saw Cortez-Diaz walk to the end of the driveway, pick up and em pty a shoebox from a trash pile, and return inside. A few minutes later, Cortez-Diaz left the stash house, put the shoebox inside the trunk of a car, and drove away. HSI called lo cal police to have th em stop Cortez-Diaz, which they did after seeing hi m commit a traffic violation. During the stop, Cortez-Diaz consented to a search of the car. Inside the trunk, the of ficers found nearly two pounds (891.9 grams) of methamphetamine in the shoebox; its purity was 99.7%.- 6 - HSI agents obtained a search warrant for the stash house. Inside they found Razo, over five and half pounds (2,583 grams) of methamphetamine (99.1% pure) in one container, another pound (488.3 grams) of methamphetamine (99.5% pure) in a second container, a digital scale, and drug-packaging material. There was no furniture, and it appeared that no one lived at the house. After his arrest, Razo waived his right to re main silent and spoke with the agents. He said that he’d made six trips for a named drug organization, transporting methamphetamine and cash. Consistent with the recorded calls, he said that in April 2011 he’d previously delivered a load of metham phetamine to Kansas City as organized by Cortez-Diaz and Martin Gonzalez. Razo explained that he then returned to Kansas City to collect $80,000 in methamphetamine sales procee ds. He also told the agents that Martin Gonzalez had loaded the $80,000 into his vehicle. For the current trip, he said half of the drugs had gone to Cortez-Diaz and the other ha lf had gone to anothe r person. Razo told the agents that seven pounds of methamphetamine remained in the stash house from the nine pounds he had delivered to Cortez-Diaz (who was a rrested with the other two pounds). A grand jury indicted Cortez-Diaz on five counts of methamphetamine trafficking. The jury convicted on all counts. On its special verdict form, the jury specifically found that Cortez-Diaz had possessed both the metham phetamine seized in the stash house and in his car.- 7 - Before sentencing, the United States Proba tion Office for the District of Kansas prepared a Presentence Investigation Re port (PSR). The PSR detailed the factual background of the offenses and incorporated Razo’s post-arrest statements. It included a base offense level of 38 gi ven Cortez-Diaz’s responsibility for 7.07 kilograms (over fifteen pounds) of methamphetamine—the su m total of all the actual methamphetamine involved in Cortez-Di az’s relevant conduct. 6 The PSR recommended a two-level enhancement for maintaining a stash house a nd a four-level enhancement for CortezDiaz’s leadership of a criminal activity with five or more participants. 7 See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1(b)(12), § 3B1.1(a) (2012). Because the sentencing table has a maximum total offe nse level of 43, however, the PSR’s total offense level was reduced to that number. See U.S.S.G. ch. 5, pt. A, Sentencing Table,
cmt. n.2. At total offense level 43, the Guidelines provide an advisory sentencing range of life imprisonment. U.S.S.G. ch. 5, pt. A, Sentencing Table. Cortez-Diaz argued that he shouldn’t be fo und responsible for the methamphetamine seized from the stash house. He also objec ted to the PSR’s recommended enhancements

6 This amount far exceeded th e “more than 1.5 kilograms” required to reach a base offense level of 38. U.S.S.G. § 2D1.1(c)(1). Because this resulted in the maximum base offense level of 38, the district court had no need to include as relevant conduct Razo’s earlier methamphetamine delivery to Cortez-Dia z, the one yielding $80,000 in proceeds. But had it mattered, this methamphetamine woul d also have counted as part of the base offense level calculus. See U.S.S.G. § 1B1.3.

7 Although the PSR also included a two-le vel enhancement because Cortez-Diaz knew the methamphetamine had been imported unlawful ly, the district court didn’t impose this enhancement after the government conceded it wouldn’t affect the applicable total offense level. See U.S.S.G. § 2D1.1(b)(5).- 8 - for maintaining a stash house and for his le adership role. He re quested a downward variance based on mitigating factors such as his age, familial situation, and lack of criminal history. 8 After hearing argument, the district court imposed the recommended base offense level of 38 and six additional levels for the two di sputed enhancements. After considering the 18 U.S.C. § 3553(a ) sentencing factors and the requested downward variance, the district court u ltimately imposed the recommended Guidelines sentence of life imprisonment. 9



### DISCUSSION “On appeal, the district court’s sentence is reviewed for reasonableness under an abuse-of-discretion standard.” Peugh v. United States , 133 S. Ct. 2072, 2080 (2013). Sentencing review proceeds in two steps. Fi rst, we address whether the court committed procedural error. United States v. Lente , 647 F.3d 1021, 1030 (10t h Cir. 2011). This step includes reviewing the court’s Guidelines calc ulation—in that process, legal conclusions are reviewed de novo and the f actual findings for clear error. United States v. Kristl , 437 F.3d 1050, 1055 (10th Cir. 2006) (per curi am). When reviewing the application of sentencing enhancements, “we view the evidence and inferen ces therefrom in the light

8 Indeed, Cortez-Diaz had no countable crimin al history points and just one listed arrest—on May 17, 2011, he was arrested in Kansas City, Kansas, for possession of opiates/opium/narcotic drugs.
9 We focus only on the life sentence imposed for Count five as the sentences for the other four counts are for lesser terms of years to be se rved concurrently and don’t affect our analysis.- 9 - most favorable to the district court’s determination.” United States v. Mozee , 405 F.3d 1082, 1088 (10th Cir. 2005). Second, we address substantive reasonabl eness, which we review for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). A sent ence must fall within the range of permissible choice. United States v. McComb , 519 F.3d 1049, 1053 (10th Cir. 2007). We may assume a within-Guidelines sent ence is reasonable, but we aren’t required to do so. Peugh , 133 S. Ct. at 2080.



### 1. Procedural Challenges
Procedural error “relates to the method by which the sentence is calculated.” Lente , 647 F.3d at 1030 (internal quotation mark s omitted). The Supreme Court recognizes at least five types of procedural error: (1) im properly calculating the Guidelines range; (2) adhering to the Guidelines as though they are mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) sentencing factors; (4) basing a sentence on clearly erroneous facts; and (5) failing to adequately explain the sentence. Id. (quoting Gall , 552 U.S. at 50–51). Although a sentence must be ad equately explained, within-G uidelines sentences require only a general statement of the court’s reasons and don’t need explic it references to the § 3553(a) factors or to every rejected argument for leniency. Id. at 1034. Cortez-Diaz first claims the district cour t miscalculated his sentence by including within his relevant conduct too much ac tual methamphetamine and by applying two enhancements—one for maintaining a stash hous e and another for his aggravating role in- 10 - the offense (as a leader). In addition, he argues that the district court procedurally erred by inadequately explaining th e basis for the sentence. Drug Quantity . In a jointly undertaken crimin al activity involving controlled substances, a defendant is responsible for a ll drugs with which he was directly involved or that were reasonably foreseeable within the scope of the joint-criminal activity. U.S.S.G. § 1B1.3(a)(1)(A)–(B); see id. at cmt. n.2. Cortez-Diaz concedes that he was directly involved with the drugs found in his car but th inks it was error for the district court to include the stash-house methamphetami ne in calculating his base offense level. He claims “the evidence at trial did not prov e by a preponderance th at [he] actually or constructively possessed [the ] packages of methampheta mine” found in the house. Appellant’s Br. 30. This argument rests upon two mistaken pr emises—first, that a defendant is only accountable under U.S.S.G. § 1B1.3 for controlled substances he possesses , and second, that for relevant conduct purposes this po ssession must be proved by the government at trial. In fact, as stated above, U.S.S.G. § 1B1.3 applies whenever a defendant is directly involved with the drug s in question—even if he didn’t possess them. And in evaluating this involvement, a district court isn’t limited to trial ev idence. Instead, “ [a]ny information may be considered [at sentencing], so long as it has sufficient indicia of reliability to support its prob able accuracy.” U.S.S.G. § 6A1.3 cmt. (emphasis added); see United States v. Ruby , 706 F.3d 1221, 1227 (10th Cir. 2013) (“[A]t a sentencing hearing the court can have access to any relevant info rmation . . . . Sentencing courts historically- 11 - rely on a wide array of information relevant to the individualized needs of the offender, including hearsay evidence . . . .”). Accordingly, the district court was free to consider any reliable relevant information in assessi ng Cortez-Diaz’s connection to the drugs at issue. In this case, the district court relied on ev idence presented at trial as well as in the PSR in concluding that Cortez-Diaz was acco untable for the stash-house drugs. We find no error as this conclusion was well supported. After all, the jury found by special verdict that Cortez-Diaz possessed the methamphetamine in the house. Regardless of whether actual possession is dispositive under U.S.S.G. § 1B1.3(a)(1)(A), it is certainly strong evidence of direct involvement. Yet the district court didn’t just rely on the jury’s special verd ict, but instead found that trial evidence linked Cort ez-Diaz to the stash house. The court pointed out that Cortez-Diaz discussed the house on the phone w ith Razo. From the intercepted calls, we know that it is indeed true that Cortez-Diaz gave Razo di rections to the house before Razo arrived in Kansas City. We also can gl ean from the calls that Cortez-Diaz offered to arrange for someone in his organization to me et Razo when he arrived and take him to the stash house. 10 Further, the court noted Cortez-Di az’s presence at the stash house on two occasions. As HSI observed, Cortez-Diaz twice took Razo to the stash house where the methamphetamine was later found and went inside with him. And, before leaving the house with the shoebox, we know from the calls that Cortez-Diaz arranged a

10 Because HSI only had vi sual surveillance on Cortez- Diaz on May 16, 2011, the record is unclear on when or how the metham phetamine was unloaded at the stash house.- 12 - methamphetamine sale from the house. All of these facts support Cortez-Diaz’s connection to the stash hous e and, by extension, his di rect involvem ent with the methamphetamine found there. See U.S.S.G. § 1B1.3(a)(1)(A). Cortez-Diaz doesn’t address this strong evid ence against him, but he does argue that the district court erred in relying on the si ngle unsupported PSR statement that “Cortez and Razo both pulled bags from the trunk of the vehicle” befo re entering the stash house. R. vol. III, at 10. This was just one poin t the court made in reaching its ultimate conclusion that Cortez-Diaz was accountable for the stash-ho use drugs. But even so, a court is entitled to rely on uncontested facts within the PSR. Fed. R. Crim. P. 32(i)(3)(A). Since Cortez-Diaz never contested the accuracy of this specific fact, or any specific fact, the district court was free to accept it as unc ontroverted and consider it during sentencing. See United States v. Warren , 737 F.3d 1278, 1285– 86 (10th Cir. 2013) (“Rule 32(i)(3)(B) applies only if facts in the PSR are disputed by specif ic objection.”). In addition, even had Cortez-Diaz neither carried the methamphetamine into the house nor aided and abetted Razo in doing so, his relevant condu ct would still include that methamphetamine. The district court also base d its finding on the fact that Cortez-Diaz and Razo worked together, a finding th at was well supported by the wiretap conversations. Indeed, since Cortez-Diaz and R azo were engaged in “jointly undertaken criminal activity” with in the meaning of § 1B1.3(a)(1 )(B), Cortez-Diaz was responsible for all reasonably foreseeable acts of Razo in furtherance of those activities. Here, this included Razo’s bringing Cortez-Diaz nine pounds of methamphetamine from California- 13 - under their express understanding and agreem ent. Accordingly, even had Razo been arrested before meeting up w ith Cortez-Diaz, Cortez-Diaz’s relevant conduct would still have included the entire nine pounds. In sum, the district court didn’t err in concluding that Cortez-Diaz was responsible for the seve n pounds of methamphetamine at the stash house based on the aforementioned information. Stash house. The Guidelines provide for a two-leve l enhancement for “maintain[ing] a premises for the purpose of manufacturing or distributing a c ontrolled substance.” U.S.S.G. § 2D1.1(b)(12). To determine whet her the defendant “maintained” the stash house, the Guidelines commentary instruct s courts to consider “(A) whether the defendant held a possesso ry interest in (e.g., owned or rented) the premises and (B) the extent to which the defenda nt controlled access to, or activities at, the premises.” Id. at § 2D1.1 cmt. n.17. Among the qual ifying uses of the maintained premises are distributing a controlled substance or storing the controlled substance there to distribute it elsewhere. Id. Cortez-Diaz contends that the government fa iled to show he maintained a stash house. He claims that his brief presence at the hou se and his vague phone calls with Razo are insufficient to support the enhancement. By his characterization, he was just a casual visitor to the stash house with no substantial connection to it. See United States v. FloresOlague , 717 F.3d 526, 532 (7th Cir. 2013) (“[A ]lthough ownership is not dispositive of whether a defendant maintains a stash house, the statute contemplates a defendant who is more than a casual visitor.” (i nternal quotation marks omitted)).- 14 - Cortez-Diaz was anything but a casual vis itor. After all, as the district court recognized, he left the house with a shoebox containing 891.9 grams of methamphetamine. Further, tria l evidence supported the district court’s finding that Cortez-Diaz controlled access to the stash house. As the district court observed, CortezDiaz “directed Juan Razo to go to the house, to lock himsel f in, and wait for [him].” R. vol. II, at 785. Cortez-Diaz then twice took Razo to and fro m the house. The court also found it significant that the house had no furniture. Indeed, its only noted contents were seven pounds of methamphetamine, drug packagin g materials, a digital scale, and Razo’s luggage. All told, this information is more than enough to estab lish that Cortez-Diaz maintained the house to store or distribute a controlled substance. § 2D1.1 cmt. n.17. Again, we see no error by the district court. Organizer or leader of criminal activ ity with five or more participants. A district court may impose a four-level enhancem ent “[i]f the defendant was an organizer or leader of a criminal activity that in volved five or more participants.” U.S.S.G. § 3B1.1(a). To apply this enhancement, therefore, th e district court needed to find two things: first, that CortezDiaz was a leader or organizer; and, second, that five or more people were participants in the criminal activity. United States v. Egbert , 562 F.3d 1092, 1103 (10th Cir. 2009). To decide whether the defendant was a leader or organizer, the Guidelines commentary instructs us to consider vari ous factors: decision-making authority, participation in the offense, recruitment of accomplices, claiming a larger share of the crime proceeds, the amount of participation in planning or organi zing the offense, the- 15 - nature and scope of the illegal activity, and th e amount of control exercised over others. U.S.S.G. § 3B1.1 cmt. n.4. To qualify as a le ader, the defendant must exercise authority over at least one of the participants. Egbert , 562 F.3d at 1103. A participant must be criminally responsible for the commission of the offense, but the person need not be charged or convicted. § 3B1.1 cmt. n.1; see United States v. Scott , 529 F.3d 1290, 1303 (10th Cir. 2008) (“A participant, in turn , must be criminally responsible for the commission of the offense even if he or sh e was not charged or convicted.” (internal quotation marks omitted)). In this case, the district court found that Cortez-Diaz was a leader of a particular methamphetamine ring in Kansas City. Cortez-Di az disputes that he qualified as a leader and that five or more people participated in the crimin al activity. He challenges his leadership role, saying that the trial evidence doesn’t prov e by a preponderance that he controlled Razo, recruited accomplices, or claimed a larger share of the proceeds. Additionally, Cortez-Diaz claims that trial evidence only supports a finding that Razo was a participant in the criminal activity. Again, Cortez-Diaz mistakenly assumes that trial eviden ce is needed to support Guidelines enhancements. Yet as stated, the trial court is free to look outside the trial record for relia ble evidence. See Ruby , 706 F.3d at 1227. Here for instance, the district court was free to consider Razo’s post-arrest statements in the PSR, even though Razo didn’t testify at trial. See United States v. Cook , 550 F.3d 1292, 1 296 (10th Cir. 2008)- 16 - (“[H]earsay statements may be considered at sentencing if they bear some minimal indicia of reliability.” (inter nal quotation marks omitted)). Regardless, the trial evidence also supported the district court’s finding that CortezDiaz “had access to and control over larg e amounts of drug proc eeds, which would indicate . . . a leadership position.” R. vol. II, at 787. Agent Hall testified that Cortez-Diaz discussed and expressed interest in his offe r to transport large amounts of Cortez-Diaz’s drug proceeds on three separate occasions. The taped phone calls also showed that Cortez-Diaz controlled the shipment of pr oceeds and drugs from California and the subsequent sale of thos e drugs. After all, Cortez-Diaz told Razo when to begin his trip; he met him at an agreed location a nd took him to the stash house; and he left the house alone with two of the nine pounds of methamphetami ne to sell after taking a call from a buyer. Agent Hall also testified that he believed Co rtez-Diaz was a high-level drug dealer based on the nearly pure methamphetamine he s upplied, his knowledge of seized drug shipments, and an analysis of his phone records. In fact, Agen t Hall testified that CortezDiaz was a regional cell head of a me thamphetamine distribution network. Further, the district court found that Cort ez-Diaz directed Razo’s activities. Indeed, the trial evidence shows that Cortez-Diaz told Ra zo when to sleep, how to drive while carrying the shipment, and how to avoid po lice tracking by turning off his cellphone. Additionally, the PSR specifically states th at “Razo was given di rections by Cortez[- Diaz].” R. vol. III, at 11. Also, Cortez-Diaz had control over Martin Gonzalez and Alfredo Soto Contreras, as shown by his sending them to meet with Agent Hall.- 17 - The district court’s finding that there were at least five other participants in the criminal activity is also well supported. At trial, the government’s evidence implicated Alfredo Soto-Contreras, Martin Gonzalez, “M iguel,” “Guerillo,” and Juan Razo—five different individuals. 11 First, Alfredo Soto-Contreras a ccompanied Cortez-Diaz to meet with the undercover agent. At that meeting, they discusse d transporting drug proceeds. Later, Cortez-Diaz sent Soto-Contreras to me et with the undercoveragent when CortezDiaz was running late. Second, Martin Go nzalez also accompanied Soto-Contreras to meet with the undercover agent. And the PS R included Razo’s statem ent that Martin had loaded the $80,000 in drug proceeds into Ra zo’s vehicle. Third, “Miguel” arranged to purchase a pound of methamphetamine from Cort ez-Diaz by phone. Duri ng the call, they discussed the quantity, quality, and price of the dr ugs. Fourth, “Guerillo” was to receive nine pounds of methamphetamine from Razo. 12 Fifth, and finally, Cortez-Diaz concedes that Razo was a participant. That makes five participants in addition to Cortez-Diaz. See United States v. Holland , 22 F.3d 1040, 1045 (11th Cir. 1994) (“[W]hen determining the number of participants, the defendant is considered to be one of the five.”). And even though all of these participants weren’t prosecuted, their knowing involvement in a

11 Another individual, Oscar Sotello, was also present at the October 22, 2010 meeting between Agent Hall and Cortez -Diaz, which adds a sixth individual into the mix.
12 Even though “Miguel’s” and “Guerillo’s” last names were unknown, the district court properly considered them as participants. See, e.g. , United States v. Thomas , 373 F. App’x 538, 540–41 (6th Cir. 2010) (upholding a leadership enhan cement under § 3B1.1 based on eleven possible participants, in cluding two with unknown last names); United States v. Fells , 920 F.2d 1179, 1182–83 (4th Cir. 1990 ) (holding that the district court properly considered individuals not identifie d by name (lower-level drug dealers) as participants for a leadership enhancement under § 3B1.1).- 18 - criminal activity meets the st andard for criminal responsibility as a participant. See U.S.S.G. § 3B1.1 cmt. n.1 (“A ‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted.”). Considering this evidence, the district court didn’t clearly err by finding Cortez-Diaz was a leader of criminal activity involving fi ve or more participants. Failure to adequately explain the sentence . “When a district c ourt imposes a withinGuidelines sentence, the court must provide only a general statement of its reasons, and need not explicitly refer to either the [18 U.S.C.] § 3553(a) factors or respond to every argument for leniency that it rejects in arriving at a reasonable sentence.” Lente , 647 F.3d at 1034 (internal quotation marks omitted). Co rtez-Diaz argues that the district court failed to adequately explain the sentence an d how it conformed to the § 3553(a) factors. Although he claims this is a substantive issue, we treat sentence explanation challenges as procedural. United States v. Wilken , 498 F.3d 1160, 1174 (10t h Cir. 2007). And because he didn’t object to the explanatio n below, we review for plain error. 13 Id. Here, the district court expressly consider ed the § 3553(a) factors and the sentencing guidelines. As discussed above, the court also found and articulated several reasons for the base offense level and the enhancements imposed—all of which were supported by trial evidence or uncontested PSR statements. The district c ourt further addressed CortezDiaz’s request for a downward va riance but denied the request based on the facts of the

13 “Plain error occurs where th ere is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Wilken , 498 F.3d at 1174.- 19 - case, the PSR, and applicable law. In the e nd, the district court arrived at a withinGuidelines sentence, and we see no error, let alone plain error, in its explanation of how it got there.



### 2. Substantive Challenges
To determine a sentence’s substantive reason ableness we consider its length given the case’s circumstances and the § 3553(a) factors. United States v. Chavez , 723 F.3d 1226, 1233 (10th Cir. 2013). Cortez-D iaz attacks the substantive re asonableness of his sentence on two related grounds. First, he claims that his within-Guidelines sentence is unreasonable given the facts of this case and the § 3553(a) fa ctors. Second, he argues that the Guidelines are driven by misguided policy that overemphasizes the quantity of methamphetamine in setting the base offense level. 14 First, we may presume that within-Guide lines sentences are reasonable—and we do so here. Peugh , 133 S. Ct. at 2080. Despite Cortez-Di az’s arguments in favor of leniency, which the district court addre ssed, the court ultimately concl uded that the specifics of the crime weighed in favor of the Guidelines recommendation. Consider ing our deferential standard on review and the we ll-supported facts found by the district court regarding the

14 The government asks us to review th e policy argument for plain error because Cortez-Diaz failed to object at sentencing. A lthough we would affirm the district court under either standard of revi ew, we think Cortez-Diaz, a lthough opaquely, raised this objection below allowing us to re view for abuse of discretion.- 20 - amount of drugs involved, the us e of the stash house, and Co rtez-Diaz’s leadership role, we find no abuse of discretion. 15 Second, there is no doubt that a life senten ce is a hefty penalty. But that is the Guidelines recommendation based on the policy that the Sentencing Commission saw fit to incorporate. Despite Cortez-Diaz’s objecti on, “a sentence is not rendered unreasonable merely because of a district court’s refusal to deviate from the advi sory guideline range based on disagreements with the policies unde rlying a particular Guideline provision.” Wilken , 498 F.3d at 1172 (internal quotation mark s omitted). The district court was well within its discretion to rely on the Gu idelines recommendation here, notwithstanding Cortez-Diaz’s challenges to the policie s underlying that recommendation.



### CONCLUSION We conclude that the sentence was proce durally and substantively reasonable and therefore affirm.

Entered for the Court
Gregory A. Phillips Circuit Judge

15 Cortez-Diaz faults the district court for its “blind reliance” on the quantity of drugs. See Apellant’s Br. 40. Even excluding the stas h-house drugs, however, Cortez-Diaz’s base offense level still would be 36. U.S.S.G. § 2D1.1(c)(2). With th e two enhancements, his total offense level would be 42, resulting in an advisory sent encing range of 360 months to life imprisonment. The district c ourt’s sentence would thus still fall within the applicable Guidelines range.