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United States v. Lozano

United States Court of Appeals, Tenth Circuit

April 19, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LUCIO IVAN LOZANO, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00360-RM-1)

          Anna 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 Plaintiff-Appellee.

          Before LUCERO, SEYMOUR, and KELLY, Circuit Judges.

          SEYMOUR, CIRCUIT JUDGE.

         Lucio 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.

         I.

         In his 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 his assignment.

         The 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 Josephine house").

         The DEA 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.

         Although 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 transactions.

         Mr. 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.

         With 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 activities.

         At 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 ...


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