from the United States District Court for the District of
Colorado (D.C. No. 1:15-CR-00360-RM-1)
M. Davide, Miami, Florida, for Defendant-Appellant.
Marissa R. Miller, Assistant United States Attorney (Robert
C. Troyer, United States Attorney, with her on the brief),
Office of the United States Attorney, Denver, Colorado, for
LUCERO, SEYMOUR, and KELLY, Circuit Judges.
SEYMOUR, CIRCUIT JUDGE.
Lozano was charged with involvement in a multi-year cocaine
trafficking conspiracy between individuals in Mexico and
Colorado. In October 2017, Mr. Lozano pled guilty to
conspiracy to distribute and possession with intent to
distribute cocaine in violation of 21 U.S.C. §§
846, 841(a)(1) and (b)(1)(A)(ii)(II). He was subsequently
sentenced to 180 months imprisonment and five years
supervised release. He challenges the district court's
application of two sentencing enhancements: (1) a two-level
guidelines increase for maintaining a premise for the purpose
of distributing a controlled substance, and (2) a three-level
aggravated role enhancement. We affirm.
plea agreement, Mr. Lozano stipulated that the conspiracy
involved at least 50 kilograms but less than 150 kilograms of
cocaine. Based on their analysis of seized notebooks, DEA
investigators believed this conspiracy may be responsible for
drug transactions involving over six million dollars and 70
kilograms of cocaine. Several co-conspirators are discussed
throughout the facts stipulated in the plea agreement but the
actors most relevant to the present case are Mr. Keneth
Molina-Villalobos and Mr. Jose Lara-Gallegos. DEA agents
determined that these two individuals were responsible for
the conspiracy's day-to-day operations in Colorado. Both
were in contact with Mr. Lozano about matters such as the
currency packaged and transferred to load drivers, the status
of drivers and cocaine, and records of cocaine sales. Both
Mr. Molina-Villalobos and Mr. Lara-Gallegos drove vehicles
that were registered to Mr. Lozano. In addition, the
stipulated facts include one occasion where Mr.
Molina-Villalobos called Mr. Lozano immediately as a load
left the Colorado operation, and another occasion where Mr.
Lozano texted Mr. Molina-Villalobos to ask if he had finished
stipulation of facts outlines four specific drug
transportation and distribution ventures relevant to the
conspiracy: (1) the "Lucero Loads," (2) the
"Mota Load," (3) the "First Neufeld
Load," and (4) the "Second Neufeld Load."
These facts are consistent with a regular and reoccurring
business enterprise conveying substantial quantities of drugs
from Mexico to Colorado. For example, DEA investigators
located approximately fifteen kilograms of cocaine in the
"Lucero load" that they intercepted in August 2014,
and Mr. Lucero admitted he had previously delivered
approximately twenty such loads to Colorado, with most of the
cocaine going to Mr. Lozano. When DEA investigators followed
this lead, they learned that Mr. Lozano had rented a house at
9544 Josephine Street in Thornton, Colorado ("the
set up pole cameras at the Josephine house and conducted
routine surveillance from January to November 2015. During
that time, they observed various activities taking place at
the house that appeared to be drug-related. Two of the
ventures detailed in the stipulation of facts explicitly
utilized the Josephine house: the "Mota Load" used
the house for a lengthy transaction spanning from January 31
to February 6, 2015, and the "First Neufeld Load"
used the house on March 3 and 4, 2015. DEA agents concluded
that both transactions used the Josephine house to unload
drugs from couriers' cars and to fill them with bulk
currency. Mr. Molina-Villalobos confirmed this conclusion in
a post-arrest interview, admitting that he used the Josephine
house to "take bricks out of cars [he] received from
various people." Aplt. App. at 33-34.
the lease for the Josephine house was in Mr. Lozano's
name and he was responsible for paying the utilities, DEA
surveillance determined that he did not live in the house
consistently. He lived in Mexico for the first six months of
surveillance, he returned to live in the Josephine house from
mid-June to early November 2015, and he was seen transporting
personal items from the house to a storage unit that
November. Mr. Lara-Gallegos lived in the Josephine house
during the periods that Mr. Lozano lived in Mexico. Mr.
Lara-Gallegos later moved to 2191 Carrol Court, in Thornton,
Colorado. A search warrant was never issued for the Josephine
house and a warranted search of Mr. Lozano's storage unit
uncovered only personal items. But a March 2016 warrant
executed on Mr. Lara-Gallegos' subsequent residence at
2191 Carrol Court revealed various tools of the trade,
including a kilogram press and a kilogram stamp, money
packaging materials, scales, mixing bowls with white residue,
a vacuum sealer, and three notebooks that detailed a litany
of transactions. These notebooks recorded Mr. Lozano as
making over $200, 000 from just fourteen individual
Lozano pled guilty but he objected to the two sentencing
enhancements recommended in the plea agreement and
presentence report. With respect to the two-level enhancement
for maintaining a premise, Mr. Lozano argued that Mr.
Lara-Gallegos was the individual in control of the Josephine
house during the time it was used for the drug trafficking
activity described in the stipulation of facts, that the
house was not used primarily for drug distribution but only
as a residence, and that he allowed his co-conspirator to
live in the house not for the purpose of enabling drug
activity but because of Mr. Lara-Gallegos' familial
connection to him as well as Mr. Lara-Gallegos'
undocumented status. The government countered that the
stipulated facts suggest the activity occurring at the house
actually exceeded the two specific ventures outlined. It also
argued that the magnitude of the loads being trafficked
through the house showed the large-scale nature of the
drug-trafficking activity, and therefore a constant flow of
people through the house was not required.
respect to the three-level aggravated role enhancement, Mr.
Lozano argued that his role as a middleman in the conspiracy
did not compel the conclusion that he managed any of his
co-conspirators, that his provision of means to Mr.
Molina-Villalobos and Mr. Lara-Gallegos was not because of a
managerial role over them but because of their undocumented
status, and that he operated within his own "box"
in the conspiracy and only exercised control relative to that
restricted box. In response, the government emphasized Mr.
Lozano's instruction to and the accountability of Mr.
Molina-Villalobos and Mr. Lara-Gallegos, and his superior
knowledge of both the south and north end of the trafficking
activity. The government further argued that Mr. Lozano
provided the means to his co-conspirators to enable their
drug-related activities, and that he regularly received
payouts exceeding those of his co-conspirators because of his
oversight and control over the Colorado drug-trafficking
sentencing, the district court overruled both objections and
increased the defendant's offense level accordingly. Mr.
Lozano appeals, contending the district court clearly erred
in the ...