FILED

United States Court of Appeals

Tenth Circuit

July 14, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

FRANCISCO JAVIER LOZOYARENTERIA,

 Defendant - Appellant.

No. 14-3167

(D.C. No. 2:12-CR-20066-KHV-JPO-49)

(D. Kansas)

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ORDER AND JUDGMENT*

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Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

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Under the Sentencing Guidelines, a district court can enhance a sentence if

the defendant was a manager or supervisor of specified criminal activities.

Following a conviction on drug conspiracy charges, the government invoked this

provision by presenting evidence that the defendant had used a courier to accept

payment and deliver drugs. Following presentation of this evidence, the district

* The parties have not requested oral argument, and the Court concludes that 

oral argument would not materially aid our consideration of the appeal. See Fed. R.

App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on

the briefs.

Our order and judgment does not constitute binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P.

32.1(a); 10th Cir. R. 32.1(A).
court enhanced the sentence, finding that the defendant was a manager or

supervisor of the drug conspiracy. The defendant appeals, contending that the

court’s finding was clearly erroneous. We affirm.

Under Sentencing Guideline § 3B1.1(b), the court can increase the base

offense level by three levels when 

! the defendant was a manager or supervisor and 

! the criminal activity involved at least five participants or was

otherwise extensive. 

U.S. Sentencing Guidelines Manual § 3B1.1(b) (U.S. Sentencing Comm’n 2012).

The defendant does not question the participation of five or more individuals, but

argues that he was not a manager or supervisor.

To assess this argument, we apply the clear-error standard of review.

United States v. Lora-Solano, 330 F.3d 1288, 1295 (10th Cir. 2003). In applying

this standard, we view the evidence in the light most favorable to the district

court’s finding. United States v. Mozee, 405 F.3d 1083, 1088 (10th Cir. 2005).

Viewing the evidence in this light, we can reverse only if the finding lacks any

factual support or we are “left with a definite and firm conviction that a mistake

has been made.” United States v. Shippley, 690 F.3d 1192, 1199 (10th Cir. 2012)

(quoting United States v. Mullins, 613 F.3d 1273, 1292 (10th Cir. 2010)). We

conclude that the court’s finding was supportable under the evidence.

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The court could consider the defendant a “supervisor” if he exercised some

control over others or bore responsibility for organizing others to carry out the

drug conspiracy. United States v. Allemand, 34 F.3d 923, 931 (10th Cir. 1994).

This definition allows an enhancement even if the defendant supervised only one

participant. United States v. Cruz Camancho, 137 F.3d 1220, 1224 (10th Cir.

1998). Under this definition, the district court could consider the defendant a

“supervisor.”

At the sentencing hearing, the government presented testimony by

Mr. Carlos Adame-Saenz and Mr. Eric Jones. From this testimony, the court could

infer that the defendant used at least one underling to sell large quantities of

drugs.

Mr. Adame-Saenz testified that he had bought drugs from the defendant,

sometimes obtaining delivery from a man nicknamed “El Bom-Bon.” According

to Mr. Adame-Saenz, he once paid for his purchase from the defendant by giving

the money to El Bom-Bon.

Mr. Eric Jones was a police officer participating in the investigation.

Officer Jones testified that the defendant had listed his expenses in a drug ledger,

which included $200 to El Bom-Bon. According to Officer Jones, this expense

matched Mr. Adame-Saenz’s testimony about El Bom-Bon’s drug deliveries on

behalf of the defendant.

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In light of the testimony of Mr. Adame-Saenz and Mr. Jones, the district

court could reasonably infer that the defendant exercised some control over El

Bom-Bon.1

 The defendant argues that

! El Bom-Bon might simply have been delivering the drugs as a favor,

and

! the notation of $200 in the ledger might have been for something

else.

The defendant’s speculation may be correct, but we must view the evidence in the

light most favorable to the district court’s finding. See p. 2, above. Viewing the

evidence in this light, we conclude that the district court did not clearly err in

applying the three-level enhancement. As a result, we affirm the sentence.

Entered for the Court

Robert E. Bacharach

Circuit Judge

1 The government also argues that the defendant (1) managed or supervised

others, and (2) exercised management responsibility over the criminal organization’s

activities by keeping detailed drug ledgers. We need not decide address the

government’s additional arguments in light of our conclusion regarding supervision

over El Bom-Bon.

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