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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13962
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20402-FAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE GUILLERMO ORTIZ,
Defendant - Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(August 16, 2019)
Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
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Jose Ortiz appeals his 70-month sentence after pleading guilty to one count of
possession with intent to distribute more than 50 grams of methamphetamine in
violation of 21 U.S.C. § 841(b)(1)(B)(viii). On appeal, Mr. Ortiz challenges his 70-
month sentence as substantively unreasonable. Mr. Ortiz argues that the district
court improperly attempted to avoid sentencing disparities between himself and his
co-conspirators by categorizing him as “similarly situated” to them, did not properly
consider all of the 18 U.S.C. § 3553(a) factors, and afforded too much weight to his
criminal history. For the following reasons, we affirm.
I
In November of 2017, Mr. Ortiz—along with co-conspirators Andrew Ronald
Lord and Jeremy Robert Macroy—agreed to purchase, package, and ship 430 grams
of methamphetamine from Mr. Ortiz’s apartment in San Francisco to Mr. Lord in
Broward County.
The men followed through with their plan to ship the methamphetamine and,
on November 15, 2017, a police K-9 alerted officers to the presence of narcotics
inside a package at the UPS store in Hollywood, Florida. Mr. Lord was subsequently
confronted by law enforcement after he took possession of the package at the store.
Mr. Lord agreed to cooperate with law enforcement. His cooperation led law
enforcement to Mr. Macroy, who later accepted a parcel that he believed contained
methamphetamine. Subsequent to his arrest, Mr. Macroy also agreed to cooperate.
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In February of 2018, Mr. Macroy introduced Mr. Ortiz to an undercover agent,
and Mr. Ortiz agreed to sell the agent $5400 worth of methamphetamine. The two
continued planning the drug transaction, and, on March 6, 2018, Mr. Ortiz was
arrested. He admitted to shipping methamphetamine to Mr. Macroy in November
of 2017, and also agreed to cooperate with law enforcement. His cooperation did
not lead to another arrest, however, because the government determined that the
quantity Mr. Ortiz’s source could deliver was insufficient to warrant a sting
operation. The government therefore did not seek a downward departure for Mr.
Ortiz.
At sentencing, the district court considered the following factors, among
others: the crime itself; Mr. Ortiz’s attempt to cooperate; his criminal history—
including the infliction of corporal injury on a spouse and the infliction of injury
upon a child; the heroin addiction of Mr. Ortiz’s son; Mr. Ortiz’s situation relative
to his co-conspirators; the co-conspirators’ sentences; and the advisory sentencing
guidelines range of 70–87 months. 1
1
Mr. Macroy’s advisory guidelines range was set at the 120-month statutory minimum term of
imprisonment but, due to his cooperation, he was sentenced to 80 months’ imprisonment. Mr.
Lord, who also received a reduction for his cooperation, was sentenced to 75 months’
imprisonment.
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II
We review the substantive reasonableness of a sentence under a deferential
abuse of discretion standard that takes into account the totality of the circumstances.
See Gall v. United States,
552 U.S. 38, 46–51 (2007). We will not vacate a sentence
unless “the district court abused its discretion by committing a clear error in
judgment.” United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015)
(citation and quotation marks omitted). And as long as the record indicates that the
district court considered the pertinent § 3553 factors, we will not reverse for a mere
failure to “articulate specifically the applicability—if any—of each of the . . .
factors.” United States v. Eggersdorf,
126 F.3d 1318, 1322 (11th Cir. 1997). Given
this deferential standard of review, we rarely overrule a district court’s sentencing
decision as substantively unreasonable. See United States v. McQueen,
727 F.3d
1144, 1156 (11th Cir. 2013).
III
We look to the factors set forth in 18 U.S.C. § 3553(a) when determining
whether a sentence is substantively reasonable. See
Rosales-Bruno, 789 F.3d at
1260. These factors include (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed;
(3) the kinds of sentences available; (4) the kinds of sentence and applicable
sentencing range; (5) any pertinent policy statement; (6) the need to avoid
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unwarranted sentence disparities among defendants with similar records guilty of
similar conduct; and (7) the need to provide restitution to any victims.
We have determined that a district court abuses its discretion in three
circumstances. They are when it “(1) fails to afford consideration to relevant factors
that were due significant weight; (2) gives significant weight to an improper or
irrelevant factor; or (3) commits a clear error of judgment in considering the proper
factors.” See
Rosales-Bruno, 789 F.3d at 1256. We have further explained that “we
may not—it bears repeating—set aside a sentence merely because we would have
decided that another one is more appropriate.” United States v. Irey,
612 F.3d 1160,
1191 (11th Cir. 2010) (en banc).
When a sentence falls well below the statutory maximum it “is an indicator of
a reasonable sentence.” United States v. Stanley,
739 F.3d 633, 656 (11th Cir. 2014).
Mr. Ortiz not only received a sentence that is far below the sentence authorized, but
he also received the shortest sentence relative to his co-conspirators.
On appeal, Mr. Ortiz relies on § 3553(a)(1) and § 3553(a)(6) to argue that his
70-month imprisonment is substantively unreasonable. We disagree.
A
The § 3553(a)(1) analysis requires an examination of the defendant’s
characteristics, history, and the entirety of the offensive conduct. Mr. Ortiz claims
that his criminal history—which included “inflict[ing] corporal injury on [a] spouse”
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and “inflict[ing] injury upon [a] child”—was given too much weight and impacted
his sentence too severely. The district court explained that Mr. Ortiz’s criminal
history negated his willingness to cooperate because his cooperation did not lead to
any arrests or discoveries. Mr. Ortiz contends that his criminal history should not
completely diminish his cooperation and should further distinguish him from his co-
conspirators.
The § 3553(a)(1) analysis extends further than criminal history and includes
other characteristics which the district court correctly considered. As the district
court explained, not only did Mr. Ortiz have a violent criminal record, but he was
also a user and seller of illegal drugs. As explained in Pugh, a district court may
give one § 3553(a) factor more weight than others, and—if the sentence is reasonable
considering the totality of the circumstances—it is not up to the appellate courts to
reweigh those factors. See
Pugh, 515 F.3d at 1191. We cannot find an abuse of
discretion.
B
The § 3553(a)(6) factor seeks to ensure that similarly situated individuals do
not receive significantly different sentences for similar crimes. Mr. Ortiz claims that
the district court incorrectly categorized him as similarly situated to his co-
conspirators and erroneously relied on this comparison to ensure that he was given
an adequate sentence.
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We have held that it is error to treat criminal defendants alike where the
comparison is to individuals who have committed less serious offenses, do not have
extensive criminal histories, or have pled guilty instead of proceeding to trial. See
United States v. Jayyousi,
657 F.3d 1085, 1118 (11th Cir. 2011). Mr. Ortiz attempts
to distinguish himself from his co-conspirators by asserting that the circumstances
leading up to this crime are unique to his situation. He describes Mr. Macroy as a
seasoned drug dealer, and Mr. Lord as “trying to get into the meth game.” Mr. Ortiz
contrasts their situations by asserting that his involvement came about only as a favor
to Mr. Macroy. Mr. Ortiz explains that the reward he would have received—getting
high and having intercourse—is unlike the money which the other conspirators
would have received from this offense, so he reasons he is not similarly situated to
his co-conspirators.
As the district court explained, Mr. Ortiz’s and his co-conspirators’
circumstances are not so dissimilar, and they all share an important characteristic:
pleading guilty to one count of conspiracy to possess with intent to distribute
methamphetamine. According to the district court, even if the individual rewards
for carrying out the offense were not exactly the same, both sex and money provide
a similar benefit: pleasure. We have held that “[w]hile motive may be a valid
concern at sentencing, it cannot obliterate the knowing, deliberate, and repeated
means by which [the] crime was committed.”
Pugh, 515 F.3d at 1193. Here, Mr.
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Ortiz knew that he possessed nearly a pound of methamphetamine and knew what
Mr. Macroy intended to do with it. The district court did not abuse its discretion.
C
Mr. Ortiz argues that the district court did not consider several other § 3553(a)
factors in determining his sentence. He asserts that “it must be presumed that [the
district court] failed to consider [other § 3553(a) factors]” because there was no
mention of them. This reasoning does not comport with our precedent. See
Irey,
612 F.3d at 1195 (stating that “no member of this Court has ever before indicated
that a sentencing judge is required to articulate his findings and reasoning with great
detail or in any detail for that matter”).
The government responds that the district court did consider all of the §
3553(a) factors, and that even if it failed to articulate a few of those factors, Mr.
Ortiz still received the lowest sentence out of all the individuals involved in the
conspiracy—the very bottom of the advisory range. We will only vacate a sentence
if we are “left with the definite and firm conviction that the district court committed
a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Overstreet,
713 F.3d 627, 636 (11th Cir. 2013). We are left with no
such conviction here.
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D
Mr. Ortiz briefly compares the sentencing disparity between pure
methamphetamine and methamphetamine mixtures to the sentencing disparity
between crack cocaine and powder cocaine found to be unreasonable in Kimbrough
sev. United States,
552 U.S. 85 (2003). We note that the Court in Kimbrough
empowered district courts with the discretion to depart from the guidelines when a
substance-related disparity yielded a sentence greater than necessary to achieve the
aims of § 3553. See Dell v. United States,
710 F.3d 1267, 1279 (11th Cir. 2013).
“[B]ut it did not command them to exercise it.”
Id.
Mr. Ortiz does not provide any reasoning to support his assertion that the
district court should have considered rejecting the methamphetamine guidelines and
only juxtaposes them with the guidelines for crack cocaine. We conclude that the
district court did not abuse its discretion by declining to vary downwards because of
a policy disagreement with the methamphetamine guidelines.
IV
For the foregoing reasons, we affirm Mr. Ortiz’s 70-month sentence.
AFFIRMED.
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