UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

NATHAN VALDEZ,

Defendant–Appellant.

No. 10-1142

(D.C. No. 1:08-CR-00309-WYD-1)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges. 

 

Nathan Valdez appeals his sentence, arguing that the district court abused its 

discretion by imposing a four-level sentencing enhancement pursuant to U.S.S.G. 

§ 2B1.1(b)(2)(B). Exercising jurisdiction under 18 U.S.C. § 3742(a), and 28 U.S.C. 

§ 1291, we affirm. 

 

* The case is unanimously ordered submitted without oral argument pursuant to 

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. The court generally disfavors the citation of orders and judgments; 

nevertheless, an order and judgment may be cited under the terms and conditions of 10th 

Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 20, 2010

Elisabeth A. Shumaker 

Clerk of Court

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 While serving as a postal employee, Valdez opened letters and removed their 

contents. He pled guilty to three counts of delay of mail in violation of 18 U.S.C. 

§ 1703(a), and three counts of theft of mail matter by an employee in violation of § 1709. 

A Presentence Investigation Report (“PSR”) calculated a base offense level of six, and 

added four levels under U.S.S.G. § 2B1.1(b)(2)(B) because the offense “involved 50 or 

more victims.” Valdez objected to this enhancement. Following a sentencing hearing at 

which testimony was presented, the district court found that the four-level enhancement 

was appropriate and sentenced Valdez to a term of six months’ home confinement and 

three years’ probation. Valdez timely appealed. 

 Valdez contends that insufficient evidence supported the district court’s finding 

that his crimes involved fifty or more victims. “When considering the calculation of a 

Guidelines sentencing range, we review legal questions de novo and we review any 

factual findings for clear error, giving due deference to the district court’s application of 

the Guidelines to the facts.” United States v. Gambino-Zavala, 539 F.3d 1221, 1227-28 

(10th Cir. 2008) (quotation and alterations omitted). The government bears the burden of 

establishing facts at a sentencing hearing by a preponderance of the evidence. United 

States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008). We will not reverse a district 

court’s factual finding unless our “review of the entire record leaves us with the definite 

and firm conclusion that a mistake has been made.” Id. (quotation omitted). 

At the sentencing hearing, Misti Drager, a special agent with the U.S. Postal 

Service, testified about a report from Mike Hurley, a supervisor at the main Pueblo, 

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Colorado post office. Hurley reported to Drager that seventy-five to one hundred pieces 

of mail had been opened. Drager testified that her investigation verified Hurley’s 

account. She also testified that video surveillance showed Valdez tampering with “at 

least 39 pieces” of mail. Drager admitted that she received fewer than fifty pieces of 

tampered mail from Hurley “because he forwarded on many of those pieces before he . . . 

started forwarding them to me.” Further, only thirty-five opened pieces of mail were 

submitted into evidence. Nevertheless, Drager clarified that Valdez opened other pieces 

of mail beyond these thirty-five, and stated under oath that between the video 

surveillance, the letters provided by Hurley, and statements from letter carriers, Valdez 

opened “at least 75” pieces of mail. 

Under our deferential clearly erroneous standard of review, this testimony is 

sufficient to support the district court’s factual finding that Valdez opened at least fifty 

pieces of mail, and thus there were at least fifty victims. See U.S.S.G. § 2B1.1, app. 

n.4(C)(i) (intended recipient counts as a victim for Guidelines purposes). Valdez 

complains that some of Drager’s testimony was not based on personal knowledge. But 

“hearsay statements may be considered at sentencing if they bear some minimal indicia 

of reliability.” Cook, 550 F.3d at 1296 (quotation omitted). The statements from letter 

carriers relayed by Drager clear “this low hurdle.” Id. Drager verified that Valdez sorted 

the pieces of mail that letter carriers reported as opened. Further, a hidden video camera 

recorded Valdez opening mail, behavior consistent with the carriers’ reports. 

Finally, Valdez appears to argue in conclusory fashion that the district court 

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abused its discretion in denying a motion for a downward variance. However, Valdez 

does not advance any reasoned argument in support of this contention in his opening 

brief; he simply asserts that the court could have considered a lesser term of probation 

“given the factors under § 3553(a).” Valdez has accordingly waived this argument. See

Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007) (“[C]ursory statements, 

without supporting analysis and case law, fail to constitute the kind of briefing that is 

necessary to avoid application of the forfeiture doctrine.”). 

For the foregoing reasons, we AFFFIRM. 

Entered for the Court 

 Carlos F. Lucero 

 Circuit Judge 

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