UNITED STATES v. ZARATE SUAREZ (2020)

ORDER AND JUDGMENT **

Joanna Zarate-Suarez appeals her sentence, arguing that the district court erred by applying a two-level enhancement under the United States Sentencing Guideline (U.S.S.G. or the Guidelines) § 2D1.1(b)(2) for directing the use of violence and a four-level enhancement under U.S.S.G. § 3B1.1(a) for her role as an organizer or leader of the conspiracy. Because Zarate-Suarez failed to preserve her objection to the violence enhancement, we review this argument for plain error and hold that the district court did not plainly err by applying that enhancement. And because she preserved her objection to the leader enhancement, we review this argument for clear error and hold that the district court did not clearly err when applying that enhancement. Accordingly, we affirm Zarate-Suarez's sentence.

Background

This case arises from a conspiracy to distribute methamphetamine from October 2016 to May 2018. The government's primary witness was Christina Fitzgerald, a member of the conspiracy who pleaded guilty and agreed to cooperate with the government. Fitzgerald testified that she contacted Zarate-Suarez in October 2016, seeking to obtain two pounds of methamphetamine for Chris Karten. According to Fitzgerald, she and Karten planned to meet Zarate-Suarez's courier, Jeremiah Serr (a coconspirator charged in this case), in Kansas City, which was about halfway between Fitzgerald's home in Virginia and Zarate-Suarez's home in Colorado. Zarate-Suarez advised Fitzgerald that the courier would arrive in a silver Honda, but he did not show up. Zarate-Suarez later explained to Fitzgerald that Serr failed to arrive because he was stopped by law enforcement. This unexpected occurrence generated a change of plans—instead of completing their drug transaction in Kansas City, Fitzgerald and Karten drove to Colorado where they obtained the methamphetamine from Zarate-Suarez and another of the coconspirators, Edwin Roman-Acevedo. Because Fitzgerald drove to Colorado, Zarate-Suarez agreed to lower the price of the methamphetamine.

Fitzgerald further testified that she contacted Zarate-Suarez again in November 2016, seeking more methamphetamine for Karten. This time, Fitzgerald flew to Colorado with Karten's girlfriend, Sarah MaGuire; they brought along $16,000 in cash. But Zarate-Suarez decided, along with Fitzgerald and another coconspirator, Omar Gonzalez-Hernandez (Zarate-Suarez's husband), to rob MaGuire of the $16,000. Roman-Acevedo and two other men drove MaGuire away from the hotel, under the guise of buying cigarettes. They then assaulted her and abandoned her by the side of the road. Meanwhile, Fitzgerald took all MaGuire's belongings and the $16,000 in cash from their hotel room, and Zarate-Suarez and Gonzalez-Hernandez drove Fitzgerald to a different hotel. Zarate-Suarez later divided up the cash, giving Fitzgerald $500 and each of the men who assaulted and abandoned MaGuire a bit less than that. Zarate-Suarez kept the remainder of the $16,000 for herself.

Fitzgerald said that Karten contacted her again in early 2018, this time seeking six pounds of methamphetamine. Unbeknownst to Fitzgerald, Karten was now a law enforcement informant. Fitzgerald contacted Zarate-Suarez, who said she could provide five pounds of methamphetamine. In May 2018, Fitzgerald flew to Denver where she met with Zarate-Suarez and Gonzalez-Hernandez, and the three tried but failed to meet with Karten to complete the deal. The next day, Zarate-Suarez, Fitzgerald, and Roman-Acevedo attempted to meet with Karten again. On this occasion, law enforcement stopped their vehicle and a drug dog alerted to their car. Zarate-Suarez, who was driving, attempted to flee; she engaged in a high-speed car chase during which she, Fitzgerald, and Roman-Acevedo tried to dissolve the methamphetamine in water and throw it out the vehicle's windows.

The government charged Zarate-Suarez, Fitzgerald, Roman-Acevedo, Gonzalez-Hernandez, and Serr with conspiring to distribute methamphetamine. In relevant part, it further charged Zarate-Suarez with possessing methamphetamine with intent to distribute in October 2016 and in May 2018. Zarate-Suarez pleaded guilty to all three counts.¹

The district court concluded that Zarate-Suarez's total offense level was 41; with a criminal-history category of III, her sentencing range under the Guidelines was 360 months to life in prison. In so doing, it overruled Zarate-Suarez's objections to two sentencing enhancements, one for directing the use of violence in connection with a drug-trafficking crime and one for being the leader or organizer of the conspiracy. See U.S.S.G. § 2D1.1(b)(2) (creating two-level enhancement for directing use of violence in furtherance of drug trafficking); U.S.S.G. § 3B1.1(a) (creating four-level enhancement if individual was leader of conspiracy). The district court further rejected Zarate-Suarez's argument for a downward variance to the statutory minimum of 180 months. Ultimately, the district court sentenced Zarate-Suarez to 240 months in prison. Zarate-Suarez appeals.

Analysis

Zarate-Suarez challenges the district court's decision to impose the violence and leader enhancements. “We review the district court's legal conclusions under the Guidelines de novo and its findings of fact for clear error, giving great deference to the district court's application of the Guidelines to the facts.” United States v. Evans, 782 F.3d 1115, 1117 (10th Cir. 2015) (quoting United States v. Salas, 756 F.3d 1196, 1204 (10th Cir. 2014)). Generally, “[a] district court's conclusion that a defendant qualifies for an enhancement ․ is a factual determination that we review for clear error.” United States v. Rubio-Sepulveda, 781 F. App'x 769, 771 (10th Cir. 2019) (unpublished). “Factual findings are clearly erroneous only if they are without factual support in the record or if this court, considering all the evidence, is left with a definite and firm conviction that a mistake has been made.” United States v. Lozano, 921 F.3d 942, 946 (10th Cir. 2019).

I. Violence Enhancement

Zarate-Suarez first argues that the district court erred in applying the two-level violence enhancement in § 2D1.1(b)(2). This enhancement applies if “the defendant used violence, made a credible threat to use violence, or directed the use of violence” in a drug-trafficking crime. § 2D1.1(b)(2). The district court imposed this enhancement over Zarate-Suarez's objection. Specifically, the district court found that even though Zarate-Suarez did not explicitly direct the men to use violence when robbing MaGuire, she should have known that it was reasonably foreseeable that they would use violence to carry out her robbery plan. R. vol. 3, 68; see also § 1B1.3(a)(1)(B) (providing that relevant conduct for “jointly undertaken criminal activity” includes “all acts ․ of others that were ․ reasonably foreseeable”).²

In finding the violence to have been reasonably foreseeable to Zarate-Suarez, the district court first noted that Zarate-Suarez created the plan to rob MaGuire and that robbery was a type of crime in which the use of violence was reasonably foreseeable. It further noted that it was reasonably foreseeable that MaGuire would resist being left behind, thereby requiring some kind of force to overcome that resistance. Additionally, the district court noted that after the men bragged about assaulting MaGuire to Zarate-Suarez, she simply paid each of them for their work. The district court construed this payment as Zarate-Suarez's “affirmation ․ that what they did by beating [MaGuire] up was within the scope of what Ms. Zarate-Suarez foresaw when she had them [rob MaGuire].” R. vol. 3, 70. The court thus imposed the § 2D1.1(b)(2) enhancement based on Zarate-Suarez's direction to the two men to rob MaGuire and the fact that it was reasonably foreseeable that the men would use violence in carrying out that direction.

On appeal, Zarate-Suarez first argues that the district court erred by applying a reasonably foreseeable standard. According to Zarate-Suarez, the correct standard is whether she used violence, intended to use violence, or intentionally directed the use of violence.³

A. Invited Error

But before we consider Zarate-Suarez's argument, we note that the government contends that even if the district court erred by applying the reasonably foreseeable standard, Zarate-Suarez invited that error. And therefore, the government argues, this court is precluded from considering the asserted error on appeal. See United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (“[W]aiver bars a defendant from appealing an invited error.”).

There is some merit to the government's position. The presentence investigation report (PSR) recommended application of the violence enhancement, but it did so based on Zarate-Suarez's “involvement in [MaGuire's] kidnapping.” R. vol. 2, 15; see also id. at 31 (“[I]t is important to note the defendant devised a plan to kidnap another person and split the money with those who carried it out for her”). Notably, the PSR did not discuss whether the violence was reasonably foreseeable, nor did it mention § 1B1.3(a)(1)(B) in its discussion of this enhancement.

Instead, our review of the record on appeal shows that Zarate-Suarez herself introduced the discussion of a reasonably foreseeable standard under § 1B1.3(a)(1)(B). Zarate-Suarez's written objection to the PSR, argued, among other things, that the evidence was “insufficient” to sustain the use of violence enhancement under § 2D1.1(b)(2). R. vol. 1, 38. In a one-paragraph argument, Zarate-Suarez first asserted that “[t]here is insufficient evidence, even under a preponderance of the evidence standard, that Ms. Zarate-Suarez used violence, made a credible threat to use violence, or directed the use of violence.” Id. But Zarate-Suarez then proceeded to suggest that “[u]nder the relevant conduct standard of § 1B1.3(a)(1)(B), the assault of [MaGuire] would have to be ‘reasonably foreseeable’ to Ms. Zarate-Suarez in order for the enhancement” to apply. Id. at 38–39 (emphasis added). Zarate-Suarez then devoted a full page to her argument about why the evidence was insufficient to show that she could have reasonably foreseen the assault. Significantly, she concluded her written objection to the § 2D1.1(b)(2) enhancement by stating that because she could not have reasonably foreseen the assault, “no sentencing enhancement is warranted under § 2D1.1(b)(2).” Id. at 40. Likewise, on the first day of the two-day sentencing hearing, Zarate-Suarez's counsel argued that the assault of MaGuire was “not something that was reasonably foreseeable.” R. vol. 3, 42–43. And then, on the second day of the hearing, when the government presented its arguments in favor of the enhancement, the prosecutor began by reminding the court that Zarate-Suarez's counsel had framed the issue in terms of whether the violence was reasonably foreseeable: “Your Honor, I think the issue as it was framed at the last hearing, which I think is appropriate, is the foreseeability of the use of violence.” R. vol. 3, 63. Zarate-Suarez's counsel did not object—either to that framing or to the discussion of reasonable foreseeability that followed.

In her reply brief, Zarate-Suarez fails to address or even acknowledge that her written objection introduced the reasonable foreseeability standard for the first time. Instead, she simply concedes that she argued at the sentencing hearing that the evidence was insufficient to apply the enhancement under a reasonable foreseeability standard. But she now suggests that, with this argument, she only intended to concede that reasonable foreseeability was “one appropriate consideration.” Rep. Br. 2. We see no support in the record for Zarate-Suarez's current position that she argued only that reasonable foreseeability was “one appropriate consideration.” Id. Rather, as noted above, she repeatedly framed her ultimate objection in terms of whether Zarate-Suarez could have reasonably foreseen the violence.

Thus, the government makes a strong argument that Zarate-Suarez invited the error she now complains about. See Thornton, 846 F.3d at 1117 n.3. But even if Zarate-Suarez did invite the error, we may nevertheless exercise our discretion to consider the merits of her argument. See id. (noting that invited error is a type of waiver); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 675 (10th Cir. 1998) (exercising discretion to reject waived argument on merits). And we do so under plain-error review because Zarate-Suarez clearly did not object to the application of the reasonably foreseeable standard.⁴ See United States v. Hubbard, 603 F.2d 137, 142 (10th Cir. 1979) (stating that plain-error review is appropriate where party fails to make “objection with clarity and specificity”).

B. Plain Error

Under plain error, we reverse the district court only if Zarate-Suarez demonstrates that the application of the reasonably foreseeable standard is “(1) [an] error, (2) that is plain, (3) that affects substantial rights, and (4) that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. De Vaughn, 694 F.3d 1141, 1159 (10th Cir. 2012).

Here, although it is her burden to do so, Zarate-Suarez makes no showing as to why the district court's application of the reasonably foreseeable standard constitutes plain error.⁵ And her failure to carry her burden on this point is dispositive. Id.

But even if we continued the plain-error analysis, we would affirm. That's because even if we assume the district court erred in applying the reasonably foreseeable standard, that error was not plain. An error is “plain” under the second prong of plain-error review only if it is “clear or obvious” under “well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000).⁶ Zarate-Suarez cites no well-settled law to support her argument that § 2D1.1(b)(2) applies only where a defendant used or “intended to use” violence. Instead, she first relies on her own interpretation of comment 11(B) to § 2D1.1(b)(1) and (2). But that comment merely describes the interaction between the enhancement the district court applied to Zarate-Suarez, § 2D1.1(b)(2), and the enhancement from § 2D1.1(b)(1), which applies to defendants who possessed a dangerous weapon during the commission of certain crimes. See § 2D1.1(b) cmt. n.11(B). And while the Guidelines’ commentary can be authoritative, comment 11(B) says nothing about whether (b)(2) requires application of an “intent” test versus a reasonably foreseeable test. See United States v. Nacchio, 573 F.3d 1062, 1066–67 (10th Cir. 2009) (describing interpretive weight of Guidelines comments). Moreover, the district court did not apply the (b)(1) enhancement to Zarate-Suarez. Thus, any interaction between the enhancement in (b)(1) and the enhancement in (b)(2) is irrelevant.

Next, to support her application of an “intent” test, Zarate-Suarez points to three out-of-circuit cases discussing § 2D1.1(b)(2). See United States v. Pineda-Duarte, 933 F.3d 519, 522 (6th Cir. 2019); United States v. Fernandez, 636 F. App'x 71, 74 (2d Cir. 2016) (unpublished); United States v. Walker, 578 F. App'x 812, 820 (11th Cir. 2014) (unpublished).But none of those cases actually considered the application of her proposed standard against a reasonably foreseeable standard. See Fernandez, 636 F. App'x at 74; Walker 578 F. App'x at 820. In Fernandez the defendant shot a victim and threatened to harm another. 636 F. App'x at 74. Similarly, in Walker the defendant punched a coconspirator and threatened others. 578 F. App'x at 820. In both cases, the courts upheld the enhancement because the evidence showed that the defendants themselves both used violence and threatened to use violence. These cases have little relevance here because the parties all agree that Zarate-Suarez herself did not use violence.

Zarate-Suarez also cites, without elaboration, Pineda-Duarte. That case contains a more robust discussion of a defendant's intent. 933 F.3d at 522. But that discussion considers whether the enhancement applied to a defendant who swung a shovel at—but missed—a law enforcement officer. Id. Again, Pineda-Duarte has no application here, where we must consider whether the violence that actually occurred is fairly attributable to Zarate-Suarez under § 2D1.1(b)(2). In sum, neither comment 11(B) nor the out-of-circuit cases support Zarate-Suarez's position that § 2D1.1(b)(2) applies only if she intended to either use or direct the use of violence.

On the other hand, the government points to United States v. Torres, an out-of-circuit case that applied the reasonably foreseeable standard to § 2D1.1(b)(2). 694 F. App'x 937, 942 (5th Cir. 2017) (unpublished). Torres, like the cases cited by Zarate-Suarez, did not weigh the reasonably foreseeable standard against Zarate-Suarez's proposed standard. But the court in Torres, like the district court here, applied a reasonably foreseeable standard after discussing circumstances that did not include direct evidence of intent. See id. (concluding defendant could reasonably foresee that gang members would use violence because he interacted with violent gang over “long period of time”; “distributed, received, and stored drugs, and received drug money” for the gang; and was present when gang member held someone at gunpoint). Zarate-Suarez fails to acknowledge Torres or the other cases the government cites in her reply brief, much less argue why we should afford more weight to her proposed authority. And regardless, even though none of the cases cited by the parties contain a robust discussion of the proper standard for applying § 2D1.1(b)(2), the competing authority makes clear that the district court's application of the reasonably foreseeable standard was not “clear or obvious” error under “well-settled law.” Whitney, 229 F.3d at 1309; see also Rice v. Office of Servicemembers’ Grp. Life Ins., 260 F.3d 1240, 1249 (10th Cir. 2001) (declining to find plain error in light of “conflicting authority”).

Nevertheless, the dissent would conclude that the district court not only erred, but that the error was plain. And the dissent suggests that the district court's application of the reasonably foreseeable standard was error because § 1B1.3(a) applies “[u]nless otherwise specified,” and § 2D1.1(b)(1) is “otherwise specified.” Dissent 7 (quoting § 1B1.3(a)). But the dissent cites no case, let alone a controlling case, interpreting the violence enhancement in this manner. See Salas, 889 F.3d at 687. Instead, the cases cited by the dissent—cases neither party cites—do not address the violence enhancement. Dissent 10–12. (discussing cases examining enhancements from U.S.S.G. § 3C1.2 and U.S.S.G. § 5C1.2). And even if these cases would bear on our analysis of a different Guideline, they simply reinforce the existence of potentially conflicting authority on this issue. See Rice, 260 F.3d at 1249. Thus, we conclude that even if the district court erred in applying a reasonable foreseeability standard, it did not plainly err.

C. Clear Error

Finally, Zarate-Suarez argues that even if reasonable foreseeability is the applicable test, the facts do not support finding as much here. We review the district court's application of a Guideline to the facts for clear error. Evans, 782 F.3d at 1117. Zarate-Suarez's position—that she could not reasonably foresee that MaGuire would resist being abandoned such that violence would be used to complete the robbery—is contradicted both by the nature of the crime itself as well as by the record. As the district court noted, robbery, by its nature, is a potentially violent crime. And the potential for violence was particularly foreseeable here. Zarate-Suarez's plan was to lure the unsuspecting MaGuire away from her belongings—including the $16,000 she brought to pay for the methamphetamine—and to abandon her alone, at night, in an unfamiliar place. As such, it is entirely predictable that MaGuire would resist being left behind and separated from her $16,000. And as a result, it is reasonably foreseeable that violence would be necessary to effectuate Zarate-Suarez's plan to rob MaGuire. Moreover, the government points to evidence that before the assault, one of the men suggested to Zarate-Suarez that if MaGuire refused to cooperate, they would force her out of the car. In sum, the record supports the district court's decision to apply this enhancement, and we are not “left with a definite and firm conviction that a mistake has been made.” Lozano, 921 F.3d at 946. Thus, the district court did not clearly err in imposing this enhancement.

II. Leader Enhancement

Zarate-Suarez next argues that the district court erred in imposing a four-level enhancement based on her role as an organizer or leader of the conspiracy under § 3B1.1(a). Generally, § 3B1.1 provides for a sentencing enhancement where the defendant played an “[a]ggravating [r]ole” in the offense. And as relevant to this case, § 3B1.1(a)’s four-level enhancement applies “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.”⁷

“[T]he gravamen of this enhancement is control, organization, and responsibility for the actions of other individuals.” United States v. Sallis, 533 F.3d 1218, 1223 (10th Cir. 2008) (quoting United States v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995)). Various factors can indicate the requisite level of control, including that the defendant (1) recruited others, employed others, or controlled the activities of others; (2) “paid others for their efforts on behalf of the conspiracy”; (3) “restricted the people to whom other coconspirators could sell their drugs”; and (4) “controlled the manner of sales, set prices, or claimed the right to a larger share of proceeds.” Id. (quoting United States v. Anderson, 189 F.3d 1201, 1212 (10th Cir. 1999)); see also § 3B1.1 cmt. 4 (listing similar relevant factors). But a defendant need not meet each one before qualifying for the enhancement. See United States v. Wacker, 72 F.3d 1453, 1476 (10th Cir. 1995) (“The Guidelines do not require that each of these factors be satisfied for a [§] 3B1.1 enhancement to apply.”).

The district court applied these factors and, over Zarate-Suarez's objection, imposed the leader enhancement, determining that Zarate-Suarez “exercise[d] decision[-]making authority during the course of this particular conspiracy.” R. vol. 3, 78. In support, the district court found that Zarate-Suarez made the decision to rob MaGuire and that Zarate-Suarez doled out the money from that robbery, keeping the majority of it for herself. It further found that as to the final transaction in this conspiracy, Zarate-Suarez was “the shot caller.” Id. at 80. Thus, it concluded that Zarate-Suarez was “the leader or organizer” of this conspiracy and imposed the four-level enhancement. Id. Like the violence enhancement, the district court's decision to apply the leader enhancement “is a factual determination that we review for clear error.” Rubio-Sepulveda, 781 F. App'x at 771.

On appeal, Zarate-Suarez argues that her role did not warrant a § 3B1.1(a) enhancement. In support, she relies on Rubio-Sepulveda for the proposition that § 3B1.1(a) enhancements require a “heightened level of leadership and control.” 781 F. App'x at 774. In Rubio-Sepulveda, the majority determined that the district court clearly erred in imposing the § 3B1.1(a) enhancement because the defendant's degree of control and authority did not rise to the level of being a leader or organizer.⁸ Id. at 773. But Rubio-Sepulveda is a nonprecedential case that can be distinguished on its facts. There, the evidence showed that the defendant acted essentially as a middleman: “he operated a ‘source phone’ through which he received drug delivery requests from various dealers in the conspiracy and either fulfilled those requests himself or else ‘dispatched’ someone to make those deliveries at meetings he scheduled.” Id. (quoting R. vol. 7, 91–92, 304–05). And according to the majority, the evidence did not show that the defendant recruited anyone, employed anyone, paid anyone, controlled the manner of sales, set prices, or claimed the right to a larger share of the proceeds. Id. at 774.

In contrast, Zarate-Suarez was more than a middleman or mere supplier, and the majority of factors here favor applying the enhancement. For example, Zarate-Suarez “paid others for their efforts on behalf of the conspiracy” by dividing MaGuire's stolen money between herself, Fitzgerald, and the men who assaulted MaGuire. Sallis, 533 F.3d at 1223 (quoting Anderson, 189 F.3d at 1212). That same evidence also showed that she “claimed the right to a larger share of [the] proceeds” by keeping the majority of stolen money for herself. Id. (quoting Anderson, 189 F.3d at 1212). Further, the record includes evidence that Zarate-Suarez set prices; for instance, in the first transaction of the conspiracy, Zarate-Suarez lowered Fitzgerald's price for methamphetamine because Fitzgerald drove all the way to Colorado to pick it up. See id. (noting that setting prices indicates control). Additionally, the evidence suggested Zarate-Suarez directed Serr to deliver a pound of methamphetamine to Fitzgerald in Kansas City. See id. (noting that directing others indicates control). And while Zarate-Suarez correctly points out that she did not recruit anyone to the conspiracy or restrict the buyers, the absence of some factors showing control does not automatically preclude the leadership enhancement. The factors governing this analysis are just that—factors. See Wacker, 72 F.3d at 1476. And we weigh all factors in the context of the overarching question: whether Zarate-Suarez had “control, organization, and responsibility for the actions of other individuals.” Sallis, 533 F.3d at 1223. Here, the evidence was not so lacking that the district court clearly erred when it determined that Zarate-Suarez was a leader or organizer for purposes of the § 3B1.1(a) enhancement. See Lozano, 921 F.3d at 946.

Conclusion

Because the district court did not err in imposing either the violence enhancement or the leader enhancement, we affirm.

FOOTNOTES

1.   Fitzgerald and Roman-Acevedo also pleaded guilty. The government tried Serr and Gonzalez-Hernandez together, and the jury convicted them both. Afterward, Serr and Gonzales-Hernandez separately appealed their convictions. See United States v. Serr, No. 19-1197, 817 Fed.Appx. 598, 599–600, (10th Cir. June 11, 2020); United States v. Gonzalez-Hernandez, No. 18-CR-00266-PAB-4, 2019 WL 1922081, at *1 (D. Colo. Apr. 30, 2019), appeal docketed, No. 19-1226 (June 24, 2019).

2.   The dissent seeks to reframe the issue as whether Zarate-Suarez must personally direct the use of violence. See Dissent 6. The dissent's framing confuses its true dispute with the district court's conclusion. Zarate-Suarez directed a plan that resulted in violence, but her directive did not expressly call for violence. Thus, the dispute is whether a direction which does not expressly call for violence can nevertheless constitute a direction to use violence under § 2D1.1(b)(2) if the violence that resulted from that direction was reasonably foreseeable. The district court determined that § 2D1.1(b)(2) includes reasonably foreseeable violence. The dissent disagrees. We do not weigh in on this dispute because, for the reasons explained below, it is not properly before this court.

3.   We note that Zarate-Suarez never clearly articulates what her intent-based standard means or why her proposed standard would preclude a court from considering reasonable foreseeability. In fact, Zarate-Suarez contradicts her position in her opening brief that a reasonably foreseeable analysis is “misplaced,” Aplt. Br. 29, by conceding in her reply brief that reasonable foreseeability is “one appropriate consideration,” Rep. Br. 2.

4.   The dissent would conclude that Zarate-Suarez's insufficient-evidence argument preserved her challenge to the reasonably foreseeable standard. And it describes her insufficient-evidence argument and her reasonably foreseeable arguments as “independent and distinct.” Dissent 5 n.4. But not even Zarate-Suarez frames her arguments in this manner. Instead, Zarate-Suarez concedes that she argued to the district court that reasonable foreseeability was “one appropriate consideration.” Rep. Br. 2. Moreover, the label we assign to Zarate-Suarez's arguments is immaterial because the substance of her arguments is clear. Zarate-Suarez never said that she isn't responsible for reasonably foreseeable violence. She argued only that the resulting violence wasn't reasonably foreseeable.

5.   Zarate-Suarez even failed to make a plain-error argument in her reply brief after the government asserted on appeal that she invited the error.

6.   Generally, well-settled law means either a Tenth Circuit or Supreme Court case addressing the issue. United States v. Salas, 889 F.3d 681, 687 (10th Cir. 2018). But as the dissent notes, “error can be plain based on the text of statutes or Guidelines.” Dissent 14; see also United States v. Fagatele, 944 F.3d 1230, 1239 (10th Cir. 2019) (noting that defendant can show plain error by demonstrating that his or her interpretation is “clearly and obviously” correct; but finding that defendant's interpretation was not plain (quoting United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003))). Notably, the dissent does not truly present a plain-meaning argument. Although the dissent styles its interpretation as a plain-meaning interpretation, its interpretation is not restricted to the text of either § 2D1.1(b)(2) or § 1B1.3. Dissent 6–7. Instead, the dissent relies on extratextual evidence—such as training manuals, comments to other Guidelines, and cases interpreting those comments to other Guidelines—to substantiate its interpretation. Id. at 7 n.6, 10–12.

7.   The district court found that the conspiracy involved five or more participants. Zarate-Suarez does not challenge that conclusion on appeal, so we do not address it further.

8.   One judge dissented, concluding that although he might have weighed the evidence differently than the district court, the case did not meet the standard for clear error. See Rubio-Sepulveda, 781 F. App'x at 778–79 (Kelly, J., dissenting).

Nancy L. Moritz, Circuit Judge