United States v. Isaias Villa, a.k.a. Isaias Villa-Mondragon , 696 F. App'x 423 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12217
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00425-CEH-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAIAS VILLA,
a.k.a. Fish,
Defendant-Appellant.
________________________
Nos. 16-12222 & 16-13148
Non-Argument Calendar
________________________
D.C. Docket No. 8:15-cr-00446-CEH-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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ISAIAS VILLA,
a.k.a. Isaias Villa-Mondragon,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(June 12, 2017)
Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Isaias Villa appeals his sentence of 262 months of imprisonment for
conspiring to possess with intent to distribute 500 grams or more of
methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); reentering the United
States illegally after being deported for an aggravated felony, 8 U.S.C. § 1326(a),
(b)(2); and entering the United States illegally, id. §§ 1325(a), 1329. Villa contests
being sentenced under the guideline for methamphetamine ice, a mixture
containing a high concentration of methamphetamine, instead of the guideline for
methamphetamine, and being found responsible for 4.5 kilograms of the stronger
drug. Villa also contests the enhancement of his sentence for his role as a manager;
the denial of his motion to depart downward; and the reasonableness of his
sentence. We affirm.
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The district court did not abuse its discretion when it sentenced Villa using
the guideline for methamphetamine ice. Villa objected to the use of the purity level
to calculate his base offense level, but he did not dispute that the drug was
sufficiently pure to qualify as methamphetamine ice. See United States v. Polar,
369 F.3d 1248, 1255 (11th Cir. 2004) (“The district court’s factual findings for
purposes of sentencing may be based on, among other things, evidence heard
during trial, undisputed statements in the PSI, or evidence presented during the
sentencing hearing.”). Villa argues that the purer form of methamphetamine does
not warrant a harsher penalty because it is less dangerous, but the district court was
not required to vary from the guideline based on Villa’s policy disagreement with
punishing methamphetamine more harshly than other drugs. See United States v.
Stratton, 519 F.3d 1305, 1307 (11th Cir. 2008).
The district court did not clearly err in calculating the quantity of drugs
attributable to Villa. Villa challenges the conversion of $75,000 of drug proceeds
to a quantity of methamphetamine ice based on its price, but we need not address
that argument because the amount attributed to Villa is supported by other
evidence. Villa conceded that he was responsible for 1.6 to 1.7 kilograms of
methamphetamine ice, and a witness for the government recounted testimony of
coconspirator that she and a cohort received four kilograms of the drug from Villa,
see United States v. Wise, 881 F.2d 970, 973 (11th Cir. 1989). The district court
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made a reasonable estimate that Villa was responsible for more than 4.5 kilograms
of methamphetamine ice.
Villa argues, for the first time, that the district court should have required the
government to provide clear and convincing evidence of his drug activities, but this
argument fails. Because Villa did not present his argument to the district court, we
review for plain error, which requires that the error “must be plain under
controlling precedent,” see United States v. Aguilar-Ibarra, 740 F.3d 587, 592
(11th Cir. 2014). Our precedent holds that, “[w]hen a defendant challenges one of
the factual bases of his sentence, the government must prove the disputed fact by a
preponderance of the evidence.” Id. The district court did not plainly err.
The district court did not clearly err by finding that Villa was a manager of
the conspiracy. A defendant is subject to a three-level increase in his base offense
level if he “was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive.”
United States Sentencing Guidelines Manual § 3B1.1(b) (Nov. 2015). Villa
admitted exercising some degree of control over the conspiracy when he requested
a two-level enhancement. See United States v. Martinez, 584 F.3d 1022, 1026
(11th Cir. 2009). And his actions involved more than organization. See U.S.S.G.
§ 3B1.1(c). Villa disbursed methamphetamine ice and large amounts of cash to his
wife, daughter, Thomas Kohler, Justin Duffey, and Miranda Chavez. In telephone
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conversations that Villa made from jail, he discussed the delivery of a large
quantity of cash with Kohler; directed his daughter to “run over children if
necessary” to retrieve money and drugs; and instructed Chavez to threaten harm to
persons who owed Villa money and to post bond for Kohler. Villa’s involvement
in the conspiracy warranted a three-level enhancement of his base offense level.
We cannot consider Villa’s challenge to the district court’s refusal to grant a
downward departure from his criminal history category. Villa waived his request
for a departure when, during sentencing, he “convert[ed] [his] argument [from a
request for a departure to a request for] a variance.” See United States v. Horsfall,
552 F.3d 1275, 1283–84 (11th Cir. 2008). Even if Villa had preserved the
argument, the denial of his motion would be immune from review. We lack
jurisdiction to review the denial of a downward departure when the district court
knew it had authority to depart, United States v. Winingear, 422 F.3d 1241, 1245
(11th Cir. 2005), which it did in this case.
The district court did not abuse its discretion when it sentenced Villa to
concurrent sentences of 262 months for conspiring to distribute methamphetamine,
240 months for reentering the United States illegally, and 6 months for entering the
country illegally. Villa, a native and citizen of Mexico, obtained status as a
permanent resident in 1991, but in 2005, he was deported to his homeland after
being convicted of child abuse and possessing methamphetamine. Two years later,
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Villa reentered the United States illegally, and in 2013, he began distributing
methamphetamine. In 2015, Villa was deported a second time after being arrested
for giving a false name and date of birth to law enforcement, but his involvement
in the drug trade continued with the assistance of his wife. Within a few months, he
entered the United States illegally a second time to resume control of his
trafficking operation, after which he managed to distribute more than 11 kilograms
of methamphetamine ice and collect more than $100,000 in drug proceeds. With a
total offense level of 38 and a criminal history of V, Villa faced an advisory
sentencing range of 360 months to life, but the district court deemed that range too
severe because Villa’s drug activities stemmed from his desire to provide for his
children and to satisfy his wife’s greediness. The district court reasonably
determined that a sentence of 262 months took into account Villa’s history and his
decision to plead guilty, yet provided an adequate penalty for his “very serious
offense” involving a “highly addictive” drug and served to protect the public, deter
Villa from committing future similar crimes, and promoted respect for the law. See
18 U.S.C. § 3553. Villa argues about a disparity between his sentence and that of
his codefendants and other distributors of methamphetamine, but Villa is not
substantially similar to the coconspirators who he managed nor can we gauge how
his sentence compares to other distributors without evidence about those persons’
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conduct and history, see United States v. Hill, 643 F.3d 807, 885 (11th Cir. 2011).
Villa’s sentence is reasonable.
We AFFIRM Villa’s sentence.
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