United States v. Derrick K. Patterson

*
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3133
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Octavio Monzalvez-Salinas, also *
known as Fredy Herrera, also known * [UNPUBLISHED]
as Juan Cogles-Pagan, *
*
Appellant. *
___________
Submitted: March 13, 2006
Filed: March 20, 2006
___________
Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
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PER CURIAM.
Octavio Monzalvez-Salinas pleaded guilty to conspiracy to distribute five
hundred grams or more of actual methamphetamine, and to illegally reentering the
United States after deportation. The district court * sentenced Monzalvez-Salinas
post-Booker to 151 months in prison and five years of supervised release.

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On appeal, Monzalvez-Salinas contends the district court committed error in
enhancing his offense level under U.S.S.G. § 3B1.4 for using a minor to commit the
offense and under § 3B1.1(c) for being an organizer, leader, manager or supervisor in
his offense. According to Monzalvez-Salinas, there is no factual basis for the
enhancements because he did not admit the underlying facts and a jury did not make
the necessary findings. Because the district court applied the guidelines in an advisory
manner, however, the court could properly find sentence-enhancing facts by a
preponderance of the evidence. United States v. Garcia-Gonon, 433 F.3d 587, 593 (8 th
Cir. 2006). The district court did not commit clear error in making its findings. The
evidence supports the court’s conclusion that Monzalvez-Salinas recruited and then
directed another person in the conspiracy to distribute methamphetamine, see United
States v. Bahena, 223 F.3d 797, 804 (8 th Cir. 2000), and that the person recruited and
directed was a minor, see United States v. Paine, 407 F.3d 958, 964-65 (8 th Cir. 2005).
Monzalvez-Salinas also argues the district court committed error in denying
him relief under the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. §
5C1.2(a). To qualify for safety valve relief, Monzalvez-Salinas must show, among
other things, that he does not have more than one criminal history point, and that he
did not organize, lead, manage, or supervise others in the offense. United States v.
Marshall, 411 F.3d 891, 895 (8 th Cir. 2005). We have already rejected Monzalvez-
Salinas's contention that the district court improperly found he was the organizer,
leader, manager, or supervisor of another in the offense. Monzalvez-Salinas also
argues his criminal history category of II overstates the seriousness of his past
criminal history. Even if the seriousness of a defendant’s past criminal conduct is
overstated, criminal history points cannot be deleted for the purposes of the safety
valve. United States v. Langmade, 236 F.3d 931, 932 (8 th Cir. 2001) (per curiam).
Thus, Monzalvez-Salinas is not eligible for safety valve relief.
We affirm the district court.
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