United States v. Gorge Antonio Vargas ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12510
________________________
D.C. Docket No. 2:15-cr-00115-SPC-CM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GORGE ANTONIO VARGAS,
JAVIER MARTIN VILLAR,
DANIEL VARGAS,
ZACHARIAS ABAB AGUEDO,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(October 22, 2019)
Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,*
District Judge.
*
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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ROBRENO, District Judge:
This is a criminal appeal by four defendants, each of whom was convicted,
at a joint trial, of conspiracy to possess heroin with intent to distribute and
possession of heroin with intent to distribute. Because the issues raised by the
defendants lack merit, except the sentencing issue raised by D. Vargas, we affirm,
except for D. Vargas’s sentence, which we vacate and remand for D. Vargas to be
resentenced.
I. BACKGROUND
Gorge Vargas, Javier Villar, Daniel Vargas, and Zacharias Aguedo ran a
heroin-trafficking operation out of a trap house,1 owned by G. Vargas, in Lee County,
Florida. The basic structure of the operation was that G. Vargas purchased heroin
from a wholesaler in Chicago and then brought it back to the trap house in Florida for
distribution. At the trap house, other individuals, including G. Vargas’s brothers
Villar and D. Vargas, would package the heroin in “baggies” containing
approximately 0.1 grams of heroin. As was adduced at trial, the defendants moved
approximately 50 to 120 baggies of heroin during a 12-hour day. And G. Vargas kept
the money he retained from the heroin sales in a bank safe-deposit box, access to
which he shared with his girlfriend (Kathleen Smith), Villar, and D. Vargas.
1
A trap house is a residence maintained for the distribution of drugs.
2
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Law enforcement began conducting surveillance on the trap house in 2014.
In November 2014, law enforcement searched the trap house with Villar’s consent
and recovered a firearm, $900, and several cellphones. In 2015, the authorities began
working with a confidential informant, who testified at trial. This confidential
informant participated in six controlled buys from the defendants’ trap house and
other Lee County locations in May and June 2015. The confidential informant
purchased drugs from each of the defendants.
In June 2015, law enforcement performed a trash pull at G. Vargas’s home
and recovered baggies with heroin residue, used drug-testing kits, plastic packaging
commonly used to secure kilogram blocks of heroin, and utility and cable bills
addressed to Smith. The authorities then executed search warrants at the trap house,
Villar’s home, G. Vargas’s home, and the bank safe-deposit box.
First, while searching the trap house, law enforcement found Aguedo, who
resided there, and seized the following items: (1) several baggies of heroin, (2) a
loaded firearm, (3) utility bills addressed to G. Vargas, (4) mail and prescriptions in
Aguedo’s name, and (5) the distinctive shorts Aguedo wore during one of the
controlled buys.
Second, from the search of Villar’s home, the authorities seized the
following items: (1) 28 baggies of heroin, (2) mail in Villar’s name, (3) a firearm, (4)
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a safe containing Villar’s Illinois driver’s license, (5) a marijuana grinder, and (6)
false-bottomed canisters.
Third, from the search of G. Vargas’s home, law enforcement seized the
following items: (1) approximately 111 grams of heroin; (2) a loaded firearm and
additional ammunition; (3) mail in G. Vargas’s name; (4) a bottle of lactose, which is
often used to dilute heroin; (5) opioid home-test kits; and (6) a safe-deposit key.
Fourth, as a result of the search of the bank safe-deposit box, law
enforcement found $35,200 in cash.
Following the execution of these search warrants, the defendants were
arrested. Law enforcement listened to a call between G. Vargas and his girlfriend,
Smith, while he was incarcerated. Based on information overheard during the call,
law enforcement searched G. Vargas’s home again as well as a local storage unit.
During these subsequent searches, law enforcement found a false-bottomed canister
containing 401 baggies of heroin in G. Vargas’s home. After seizing a car registered
to Smith, the authorities found almost a kilogram of heroin in a hidden compartment
of the car’s glove box. At the storage unit, local authorities found a quarter-kilogram
of heroin, two firearms, ammunition, a digital scale, a package of empty baggies, and
a box containing additional lactose.
In September 2015, a grand jury returned an indictment charging all four
defendants with conspiracy to possess a kilogram or more of heroin with the intent to
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distribute in violation of 21 U.S.C. § 846 (count one); D. Vargas, Villar, and Aguedo
with possessing heroin with the intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) (counts two, four, and five, respectively); and G. Vargas with possessing
100 grams or more of heroin with the intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) (count six).
Villar moved to suppress evidence seized from his house during a search.
The district court denied the motion. Villar then pleaded guilty to the substantive
heroin-distribution charge but proceeded to trial on the conspiracy charge. The case
was tried to a jury, which found all the defendants guilty of the conspiracy and
possession with intent to distribute charges.
G. Vargas was sentenced to 400 months’ imprisonment; Villar was
sentenced to 200 months’ imprisonment; D. Vargas was sentenced to 188 months’
imprisonment; Aguedo was sentenced to 96 months’ imprisonment. All four
defendants have appealed their sentences, each of which was imposed within the
respective Guidelines range.
On appeal, Villar challenges the district court’s denial of his motion to
suppress. D. Vargas challenges the district court’s denial of two of his motions for a
mistrial. Aguedo challenges five evidentiary rulings, one Brady ruling, and the denial
of his motion for a judgment of acquittal.
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II. DISCUSSION
All the issues raised on appeal lack merit, except for D. Vargas’s sentencing
claim. First, the search of Villar’s home was supported by probable cause, but even
if not, any error was harmless. Second, the district court did not abuse its discretion
in denying D. Vargas’s motions for a mistrial because the evidence complained of
did not prejudice D. Vargas. Third, even assuming the district court did abuse its
discretion in overruling Aguedo’s evidentiary objections, any error was harmless,
and the court did not abuse its discretion in denying Aguedo’s Brady objection
because he obtained all Brady material in a timely manner. Fourth, the district
court did not err in denying Aguedo’s judgment-of-acquittal motion because there
was sufficient evidence to support his conviction. Fifth, all the sentences were not
procedurally unreasonable because there was no procedural error, except for D.
Vargas’s sentence, which was procedurally unreasonable due to a mistake in the
calculation of his criminal history category. And sixth, G. Vargas’s, Villar’s, and
Aguedo’s sentences were not substantively unreasonable in the totality of the
circumstances. We discuss each of the defendants’ challenges seriatim.
A. The District Court Did Not Err In Denying Villar’s Motion To Suppress
Evidence Seized From His Residence And Any Error Was Harmless.
Villar contends that the district court erred in denying his motion to suppress
evidence seized from his home because the warrant was not supported by probable
cause. But there were ample facts and circumstances to reasonably conclude that
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evidence of illegal activity would be found in Villar’s home. And even if there was
not probable cause, any error was harmless because the evidence against Villar was
overwhelming.
We review “a district court’s denial of a defendant’s motion to suppress
under a mixed standard of review,” where findings of fact are reviewed for clear
error and the application of law to facts is reviewed de novo. United States v. King,
509 F.3d 1338, 1341 (11th Cir. 2007). Even if the district court did err in denying a
motion to suppress, the error will be found harmless if “the other evidence of guilt
was so overwhelming that the defendant suffered no prejudice from the admitted
evidence.” United States v. Rhind, 289 F.3d 690, 694 (11th Cir. 2002).
1. The Warrant was Supported by Probable Cause
To establish probable cause, an affidavit “need only contain ‘sufficient
information to conclude that a fair probability existed that seizable evidence would
be found in the place sought to be searched.’” United States v. Shabazz, 887 F.3d
1204, 1214 (11th Cir. 2018) (quoting United States v. Martin, 297 F.3d 1308, 1314
(11th Cir. 2002)). Further, “[t]he affidavit need not allege illegal activity occurred at
the home, but ‘the affidavit should establish a connection between the defendant
and the residence to be searched and a link between the residence and any criminal
activity.’” United States v. Lebowitz, 676 F.3d 1000, 1011 (11th Cir. 2012) (quoting
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Martin, 297 F.3d at 1314).
In this case, the affidavit sets out that (1) a confidential informant advised
authorities that Villar had been selling large quantities of heroin in Lee County,
Florida; (2) Villar stopped at his home and then his business office before
proceeding to a gas station for a first scheduled drug deal; (3) Villar stopped at his
office before proceeding to a gas station for a second scheduled drug deal; and (4) a
trash pull from Villar’s residence revealed marijuana and a piece of tinfoil burned at
one end, which is commonly used to smoke marijuana. The affiant detective also
stated that, based on the trash pull and his training and experience, he believed that
the residence was a place where narcotics were housed and sold.
In challenging the search, Villar argues that there was no probable cause
because there was no nexus between his sale of heroin and his home. But the
affidavit does not need to establish that the drugs were sold at Villar’s home; rather,
the affidavit need only establish a connection between Villar’s home and the sale of
drugs. See United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009)
(“[T]he affidavit should establish a connection between the defendant and the
residence to be searched and a link between the residence and any criminal
activity.” (quoting Martin, 297 F.3d at 1314)).
Here, the affidavit established that Villar stopped at his home before selling
heroin to the confidential informant. Thus, the affidavit specifically links a sale of
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heroin to Villar’s home. Further, the affidavit points to other drug-related
contraband found in Villar’s trash, thereby connecting Villar’s home to drug
activity. Additionally, the affiant detective stated that he believed, in light of the
contraband recovered from the trash pull as well as his training and experience, that
contraband and evidence of drug trafficking would be found at the home. See
United States v. Albury, 782 F.3d 1285, 1292 (11th Cir. 2015) (“Where evidence
shows that the defendant ‘is in possession of contraband that is of the type that
[one] would normally [hide] at their residence,’ there is sufficient probable cause to
support a search warrant.” (alterations in original) (quoting United States v. Anton,
546 F.3d 1355, 1358 (11th Cir. 2008))).
2. Any Error was Harmless
But even if probable cause was lacking, any error in admitting the heroin
and firearm recovered from the search was harmless because Villar’s conspiracy
conviction was supported by overwhelming evidence. See United States v. Burgest,
519 F.3d 1307, 1311 (11th Cir. 2008) (“[B]ecause the record demonstrates that the
evidence of guilt was overwhelming, any error in admitting [the defendant’s]
incriminating statement was harmless.”).
Specifically, evidence was adduced at trial that Villar sold heroin to the
confidential informant at two controlled buys as well as on other occasions prior to
the controlled buys. Additionally, two coconspirators testified that they had seen
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Villar packaging and cutting up heroin with G. Vargas and D. Vargas. A
coconspirator also testified that the operation originally involved packaging heroin at
Villar’s neighboring apartment and that Villar regularly worked at, and delivered
heroin to, the trap house. Further, on a recorded prison call, G. Vargas told Smith that
Villar owed him money for the heroin Villar had sold and that Villar would help her
sell the rest of the heroin. The evidence of guilt is overwhelming such that any error
in admitting the evidence found at Villar’s home was harmless.
Villar argues that any error as to probable cause was not harmless because
the gun found in Villar’s home was the gun used for the sentencing enhancement.
This argument fails for two reasons. First, the enhancement was based on the guns
possessed by the coconspirators, including the gun found at the trap house near
baggies of heroin. See United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir.
2010) (“A co-conspirator’s possession of a firearm may be attributed to the defendant
for purposes of this enhancement if his possession of the firearm was reasonably
foreseeable by the defendant, occurred while he was a member of the conspiracy, and
was in furtherance of the conspiracy.”). Second, the enhancement was a sentencing
issue and the exclusionary rule does not apply in the sentencing context. Thus, any
error in failing to suppress this evidence was harmless to Villar in the application of
the sentencing enhancement. United States v. Lynch, 934 F.2d 1226, 1237 (11th Cir.
1991) (“[W]e decline to extend the exclusionary rule to sentencing proceedings.”).
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B. The District Court Did Not Abuse Its Discretion In Denying D. Vargas’s
Two Motions For A Mistrial.
D. Vargas challenges the district court’s denial of two motions for a mistrial,
arguing that the testimony extended beyond the charges in the indictment and that
the government’s closing argument attributed a greater quantity of drugs to D.
Vargas than was suggested by the evidence. But the testimony complained of did
not go beyond the timeline charged in the indictment. And the government’s
argument about quantity pertained to the total quantity of heroin in the conspiracy.
Thus, the district court properly denied the motions for a mistrial.
The mistrial decision “is within the sound discretion of the trial court and
will not be reversed unless the record reflects that the court abused that discretion.”
United States v. Saldarriaga, 987 F.2d 1526, 1531 (11th Cir. 1993). The district
court has discretion to grant or deny a mistrial because it “is in the best position to
evaluate the prejudicial effect of a statement or evidence on the jury.” United States
v. Delgado, 321 F.3d 1338, 1346–47 (11th Cir. 2003) (quoting United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)). A mistrial is warranted where the
evidence at issue prejudicially affected the defendant’s rights and altered the
outcome of his trial. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.
2007).
1. The First Motion for a Mistrial
The appeal of the first mistrial motion lacks merit because the testimony
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challenged did not go outside the bounds of the indictment. Here, a coconspirator
was asked on cross-examination by Villar’s counsel whether G. Vargas was selling
heroin in 2012. D. Vargas argues that the affirmative answer to that question
indicated that G. Vargas was dealing heroin before the period charged in the
indictment. According to D. Vargas, he could not prepare to defend against
uncharged bad acts that occurred prior to the alleged conspiracy. But as the district
court noted, the indictment charged a conspiracy “from a time unknown but in or
about 2013 through the time of the indictment.” And when the government charges
criminal conduct in or about a date, “[p]roof of a date reasonably near the specified
date is sufficient.” United States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989).
And a discrepancy “between the date alleged and the date proved will not trigger
reversal as long as the date proved falls within the statute of limitations and before
the return of the indictment.” Id. In other words, the year “2012,” which is
reasonably close in time to the date alleged in the indictment, is covered within “in
or about 2013.” Thus, the answer to the question did not implicate G. Vargas in
dealing heroin before the time charged in the indictment.
Additionally, this question did not prejudice D. Vargas because it did not
pertain to him. Villar’s counsel’s question did not elicit testimony that D. Vargas
was part of his brother’s heroin-trafficking operation in 2012. The other testimony
at trial established that D. Vargas did not join the conspiracy until 2015. And there
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was no link to D. Vargas in the testimony at issue.
2. The Second Motion for a Mistrial
The appeal of the second mistrial motion lacks merit because the
government’s argument was about the quantity sold by the conspiracy, not by D.
Vargas alone. Here, the government said in its closing argument that 50 to 120
baggies were sold out of the trap house each day and that D. Vargas “was moving
that heroin.” D. Vargas argues that this statement implied he was selling much more
heroin than the evidence at trial suggested. But the record shows that, indeed, 50 to
120 baggies were sold out of the trap house a day; it also shows that D. Vargas was
often at the trap house, explained to at least one of the coconspirators how to sell
heroin, resupplied the trap house at least six times, and participated in two sales to
the confidential informant. Taken in context, this closing statement does not
implicate D. Vargas in additional sales unsupported by the evidence. Instead, the
government’s argument points to the evidence that D. Vargas was involved in
selling drugs out of the trap house and that the conspiracy sold 50 to 120 baggies a
day.
C. The District Court Did Not Commit Reversible Error In Overruling
Aguedo’s Evidentiary And Brady Objections.
First, Aguedo’s arguments that the district court committed reversible error
in admitting four pieces of evidence and excluding one cross-examination question
all lack merit because even if these rulings were erroneous, any errors were
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harmless. There was an overwhelming amount of evidence against Aguedo even
without considering the pieces of evidence he contests. Second, Aguedo’s
argument that the government committed a Brady violation lacks merit because
Aguedo obtained all the materials he needed in time to present exculpatory
evidence at trial.
A district court’s evidentiary rulings are typically reviewed for abuse of
discretion. United States v. Harris, 886 F.3d 1120, 1127 (11th Cir. 2018). And
even where an evidentiary ruling is an abuse of discretion, the error may still be
harmless if it is not of a constitutional dimension and “does not affect the
substantial rights of the parties.” United States v. Gamory, 635 F.3d 480, 492 (11th
Cir. 2011); see Fed. R. Evid. 103(a) (providing that an evidentiary error may be
claimed “only if the error affects a substantial right . . . .”). This requires the
government to show that the error did not substantially influence the judgment.
Gamory, 635 F.3d at 492.
1. Evidentiary Objections
Excluding all the evidence Aguedo complains of still leaves the record with
an overwhelming amount of evidence against Aguedo. Therefore, any error was
harmless. An error regarding the admissibility of evidence is only reversible if it
affected substantial rights, meaning that it had a substantial impact on the outcome
of the case. United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006)
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(quoting United States v. Rodriguez, 524 F.2d 485, 487 (5th Cir. 1975) (per
curiam)). And where “sufficient evidence uninfected by error supports the verdict,
reversal is not warranted.” Id. (quoting United States v. Hawkins, 905 F.2d 1489,
1493 (11th Cir. 1990)).
Aguedo challenges the admission of evidence of (1) a firearm at the trap
house, (2) G. Vargas’s income, (3) the structure of drug-trafficking operations, and
(4) distinctive shorts belonging to Aguedo. Even after excluding the evidence
complained of, there remains a recording of a drug sale by Aguedo to the
confidential informant; the testimony of two witnesses, the confidential informant
and a coconspirator, that Aguedo sold drugs out of the trap house; baggies of
heroin found at the trap house; Aguedo’s mail and prescriptions found at the trap
house; and Aguedo’s presence at the trap house when the warrant was executed.
This evidence is overwhelming.
On the other hand, the evidence complained of is minor and only
tangentially related to Aguedo. And Aguedo does not challenge the strongest
evidence against him—a recording of his participation in a drug transaction and
live witness testimony that he sold heroin out of the trap house. And this
admissible evidence is sufficient to conclude that the challenged evidence did not
have a substantial influence on the verdict.
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Aguedo also challenges the exclusion of his cross-examination question,
asking a detective if the confidential informant had disclosed the reason for her
prior arrest. The purpose of eliciting this testimony was to impeach the confidential
informant with her prior criminal history. But the confidential informant was
impeached on this very ground nonetheless when she admitted that she was serving
a sentence for theft at the time she was first approached by the detective. And the
jury’s determination of credibility is not reviewed by this Court. United States v.
Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). Further, even without the
testimony of the confidential informant, there was an overwhelming amount of
evidence against Aguedo. The coconspirator testimony and recording proved the
same thing that the confidential informant testified to, namely that Aguedo sold
heroin during the time charged in the indictment. Thus, there was sufficient
evidence against Aguedo that the testimony of the confidential informant, if
erroneously admitted, did not affect Aguedo’s substantial rights.
2. Brady Objections
The prosecution did not suppress any evidence, thus there was no Brady
violation. Aguedo argues that the government withheld evidence that would have
assisted at trial in showing that he was merely an addict that resided at the trap
house and not a drug dealer or coconspirator. He claims this constituted a Brady
violation. A defendant’s due process rights are violated if the prosecution
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suppresses evidence favorable to him and that evidence is material to his guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). To succeed on a Brady
claim, the defendant must show (1) the government’s possession of favorable
evidence, (2) inability of the defendant to obtain the evidence through reasonable
diligence, (3) suppression of the evidence by the government, and (4) a reasonable
probability that the evidence would change the outcome of the proceedings. United
States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989). Aguedo’s Brady claim fails
because the government did not suppress any evidence.
Aguedo contends that the district court erred in declining to compel the
production of the actual prescription bottles bearing his name, which were found at
the trap house and which he contends may have contained methadone. But
photographs of the bottles were produced during discovery well in advance of trial.
And “[o]ur case law is clear that ‘where defendants, prior to trial, had within their
knowledge the information by which they could have ascertained the alleged Brady
material, there is no suppression by the government.’” Maharaj v. Sec’y for Dep’t
of Corr., 432 F.3d 1292, 1315 (11th Cir. 2005) (alteration adopted) (quoting
United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983)). Thus, because the
pictures of the prescription bottles were produced during discovery, there was no
Brady violation.
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D. The District Court Did Not Err In Denying Aguedo’s Motion For Judgment
Of Acquittal.
There was sufficient evidence for the jury to convict Aguedo because the
evidence allowed an inference that Aguedo was a part of the conspiracy. A district
court’s denial of a judgment-of-acquittal motion is reviewed de novo, and “our
evaluation is comparable to the standard used in reviewing the sufficiency of the
evidence to sustain a conviction.” United States v. Henderson, 893 F.3d 1338, 1348
(11th Cir. 2018) (quoting United States v. Bergman, 852 F.3d 1046, 1060 (11th Cir.
2017)). Under this standard, we consider the evidence in the light most favorable to
the government, drawing all reasonable inferences in favor of the jury’s verdict. Id.
Aguedo contends that the district court erred in denying his judgment-of-
acquittal motion, which was premised on insufficiency of the evidence to support
his conviction. But the evidence adduced at trial is to the contrary. The evidence
consists of the following: (1) the testimony of a coconspirator that Aguedo sold
heroin at the trap house; (2) a recorded drug sale between Aguedo and a
confidential informant; (3) the confidential informant’s testimony that she had
purchased heroin from Aguedo “a few times”; (4) Aguedo’s presence at the trap
house when the search warrant was executed; and (5) evidence seized and observed
during the search of the trap house, such as mail addressed to Aguedo, prescription
bottles with Aguedo’s name, and the distinctive shorts worn during one of the
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earlier heroin purchases.
Aguedo frames his challenge to the sufficiency of the evidence by focusing
on the evidence that was not adduced at trial (i.e., the lack of DNA or fingerprint
evidence, the lack of recorded telephone calls mentioning Aguedo or between
Aguedo and other coconspirators, and the paucity of references to Aguedo by other
coconspirators). But this argument ignores much of the evidence at trial that
implicated Aguedo in the conspiracy. Here, after hearing testimony that Aguedo
“ran” the drug operation at night, that the confidential informant had purchased
heroin from Aguedo during a controlled buy, that a coconspirator shared a “shift” at
the trap house with Aguedo, and that Aguedo recruited customers, along with
seeing the evidence of his shorts, mail, and prescriptions at the trap house, a
reasonable jury could have convicted Aguedo.2
Additionally, Aguedo argues that the evidence is insufficient based upon the
credibility of the confidential informant, who testified that she was high or under
2
See United States v. Brantley, 68 F.3d 1283, 1287 (11th Cir. 1995) (“The jury may
reasonably have considered it to be highly improbable that the conspirators would include [the
defendant] so closely in their activities without fully apprising him of the scope of the
conspiracy.”); United States v. Tunsil, 672 F.2d 879, 882 (11th Cir. 1982) (finding sufficient
evidence to convict the defendant of conspiracy to distribute heroin where he was an active
participant in heroin transactions after the defendant argued that although there was a conspiracy,
he was not a knowing and willing participant); United States v. Spradlen, 662 F.2d 724, 727
(11th Cir. 1981) (finding that when the evidence was viewed in the light most favorable to the
government, a jury could have reasonably concluded that the defendants were not “innocent
bystanders who happened to be in the wrong place at the wrong time” but instead were
participants in the conspiracy).
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the influence of heroin when she made the controlled buys from Aguedo. But we do
not review such credibility determinations by the jury. See United States v.
Hernandez, 743 F.3d 812, 814 (11th Cir. 2014) (“Importantly, to the extent that an
appellant’s argument ‘depends upon challenges to the credibility of witnesses, the
jury has exclusive province over that determination and [we] may not revisit the
question.’” (alteration in original) (quoting United States v. Emmanuel, 565 F.3d
1324, 1334 (11th Cir. 2009))).
E. All The Sentences, Except For D. Vargas’s, Were Neither Procedurally Nor
Substantively Unreasonable.
The sentences imposed upon the defendants were based on convictions for
their participation in a conspiracy to distribute controlled substances, involving
over a kilogram of heroin. The conspiracy also involved high-powered guns and a
premise maintained for the distribution of drugs.
We review de novo a district court’s interpretation and application of the
Sentencing Guidelines and review for clear error a district court’s factual findings.
United States v. Wenxia Man, 891 F.3d 1253, 1264 (11th Cir. 2018). But the
substantive reasonableness of a sentence is reviewed for abuse of discretion. Id. at
1265. We first consider whether a sentence is procedurally unreasonable and then
decide whether it is substantively unreasonable. Gall v. United States, 552 U.S. 38,
51 (2007). A sentence is procedurally unreasonable where the court commits a
“significant procedural error, such as failing to calculate (or improperly
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calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence.” Id. When determining
whether a sentence is substantively unreasonable, we look to the totality of the
circumstances, giving deference to the district court. Id. And it is ordinarily
expected that a sentence within the Guidelines range is reasonable. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
1. G. Vargas’s Sentence
G. Vargas’s sentence was neither procedurally nor substantively
unreasonable. The district court found G. Vargas’s offense level was 38, criminal
history category was V, and Guidelines range was 360 months to life. This was
based on G. Vargas’s being the leader of the conspiracy and having prior
convictions for domestic violence, drug trafficking, and driving under the
influence. After hearing arguments and weighing the § 3553(a) factors, the court
sentenced G. Vargas to 400 months’ imprisonment and 5 years’ supervised release.
G. Vargas argues that the district court improperly considered that he was a
leader in the conspiracy involving over a kilogram of heroin and ran a trap house in
the § 3553(a) considerations because these facts were already considered in
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determining the Guidelines range. But what is considered in the Guidelines
calculation does not limit what the district court can consider under § 3553(a). 3
G. Vargas also argues that the sentence was substantively unreasonable
because he was sentenced to 400 months as opposed to 360 months. But this
sentence was well within the Guidelines range, which provided for up to life
imprisonment. And G. Vargas does not advance any reason why the court should
hold that such a sentence is unreasonable. Vargas cites two cases 4 where the court
imposed below-Guidelines sentences. But those cases involved different facts and
circumstances, and the district court had discretion to weigh the facts and
circumstances in this case. G. Vargas was the leader of a large heroin distribution
conspiracy that involved guns and a trap house, and the court sentenced him based
on these facts. The district court was uniquely situated to evaluate the application
of the § 3553(a) factors, and we will not second-guess its sound exercise of
discretion. See Gall, 552 U.S. at 51 (“The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is insufficient
3
See United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (“[Although the
defendant’s] previous offenses were included in his criminal history and were therefore part of
the calculation of his guideline range, the court emphasized that he had committed previous
‘fraud-related’ crimes. This fits squarely into one of the § 3553(a) factors, the history and
characteristics of the offender, 18 U.S.C. § 3553(a)(1), and was therefore a proper basis for the
court’s consideration.” (citing 18 U.S.C. § 3661)).
4
United States v. Williams, 435 F.3d 1350 (11th Cir. 2006); United States v. Gray, 453
F.3d 1323 (11th Cir. 2006).
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to justify reversal of the district court.”). The district court did not abuse its
discretion.
2. Villar’s Sentence
Villar’s sentence was neither procedurally nor substantively unreasonable.
Villar was charged with two counts related to heroin distribution, and he pleaded
guilty to one count but not the other. The court found Villar’s offense level was 35
and criminal history category was I, producing a Guidelines range of 168 to 210
months’ imprisonment. This was based on Villar’s role in the offense (being
second-in-command of the conspiracy), being accountable for guns in connection
with the drug trafficking, and not qualifying for an acceptance of responsibility
adjustment. After hearing arguments and weighing the § 3553(a) factors, the court
sentenced Villar to 200 months’ imprisonment and 5 years’ supervised release.
First, Villar argues that the court erred in applying an enhancement for
possession of a firearm. A two-level enhancement should be applied to the offense
calculation when a defendant possesses a dangerous weapon, unless “it is clearly
improbable that the weapon was connected with the offense [such as] an unloaded
hunting rifle in the closet.” U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) cmt.
n.11 (U.S. Sentencing Comm’n 2018). Villar analogizes the gun found in his
bedroom to “the unloaded hunting rifle” referenced in the Sentencing Guidelines
comment. Regardless of the merits of this argument, under the circumstances of
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this case, the undisputed possession of guns by others in the conspiracy, such as
the gun found in the trap house next to the heroin, is charged to Villar as a
coconspirator. See United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir.
2010) (“A co-conspirator’s possession of a firearm may be attributed to the
defendant for purposes of this enhancement if his possession of the firearm was
reasonably foreseeable by the defendant, occurred while he was a member of the
conspiracy, and was in furtherance of the conspiracy.”). 5 Thus, the enhancement
was applicable to Villar.
Villar also argues that the court erred in applying an enhancement for his
performance of a managerial role. The district court should enhance a defendant’s
offense level “[i]f the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(b). And this enhancement is justified when
the defendant sells drugs to others who then resell the drugs and return the
proceeds to the defendant. United States v. Matthews, 168 F.3d 1234, 1249–50
(11th Cir. 1993). Villar admitted that he sold drugs to others ready to resell those
drugs. Additionally, the court found that he was second-in-command of the
5
See also United States v. Pham, 463 F.3d 1239, 1246 (11th Cir. 2006) (“To that end,
we have found it reasonably foreseeable that a co-conspirator would possess a firearm where the
conspiracy involved trafficking in lucrative and illegal drugs.”).
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conspiracy and gave orders to subordinates. So, this enhancement was properly
applied to Villar.
Villar next argues that the court erred in not granting him a downward
departure for acceptance of responsibility. We review the district court’s
assessment of acceptance of responsibility for clear error. United States v. Knight,
562 F.3d 1314, 1322 (11th Cir. 2009). And “[a] defendant who fails to accept
responsibility for all of the crimes he has committed and with which he has been
charged is entitled to nothing under [the acceptance of responsibility provision].”
United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001). Villar accepted
responsibility for one charge but not for the second charge, forcing the government
to prove his guilt at trial. Thus, there was no clear error in denying the downward
departure.
Last, Villar argues that his sentence was substantively unreasonable because
the district court should have granted him a downward variance. To this end he
argues that Congress intended the ten-year mandatory minimum to be
commensurate to the crime, that a ten-year sentence would promote respect for the
law and allow him to pursue rehabilitative treatment, and that he would be deterred
by a ten-year sentence because he was deterred for twenty years by a brief prior
sentence. But the court did not abuse its discretion here because it considered the
§ 3553 factors and weighed them to determine Villar’s sentence. The district court
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rejected Villar’s arguments, noting that the basis for its sentence was that Villar
was second-in-command of this large heroin distribution conspiracy and was a
member of the conspiracy for over a year. There was no abuse of discretion in the
district court’s denial of the request for a downward variance.
3. Aguedo’s Sentence
Aguedo’s sentence was neither procedurally nor substantively unreasonable.
The court found Aguedo’s offense level was 26 and his criminal history category
was III. This was based on a finding that he was accountable for between 100 and
400 grams of heroin, instead of the entire 1.35 kilograms involved in the
conspiracy, and that he was an average participant in relation to this conduct. After
hearing arguments and weighing the § 3553(a) factors, the court sentenced Aguedo
to 96 months’ imprisonment and 5 years’ supervised release.
First, Aguedo argues that the court should have granted him a minor role
reduction because his participation and role in the conspiracy were substantially
less than his codefendants’ participation and roles. We consider “whether a
defendant qualifies for a minor role adjustment under the Guidelines [to be] a
finding of fact that will be reviewed only for clear error.” United States v.
Rodriguez De Varon, 175 F.3d 930, 934 (11th Cir. 1999) (en banc). The district
court should consider (1) the defendant’s role in the relevant conduct for which he
is being held accountable and (2) the defendant’s role as compared to that of other
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participants in the defendant’s relevant conduct. Id. at 940. And, “an adjustment
only makes senses analytically if the defendant can establish that her role was
minor as compared to the relevant conduct attributed to her.” Id. at 941.
Here, Aguedo was found to be an average participant in the relevant conduct
of distributing 100 to 400 grams of heroin, which was less than the relevant
conduct of his codefendants, who had the full 1.43 kilograms attributed to them.
So, while he might have been a minor participant with regard to the 1.43 kilograms
in the conspiracy, he was not a minor participant with regard to the 100 to 400
grams of heroin for which he was found responsible as relevant conduct.
Aguedo also argues that the court should have granted him a downward
departure based on mental illness and diminished capacity. But “[w]e lack
jurisdiction to review a district court’s decision to deny a downward departure
unless the district court incorrectly believed that it lacked authority to grant the
departure.” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). And
“when nothing in the record indicates otherwise, we assume the sentencing court
understood it had authority to depart downward.” Id. (quoting United States v.
Chase, 174 F.3d 1193, 1195 (11th Cir. 1999)).
In this case, the record reveals that neither the district court nor the parties
specifically mentioned the downward departure motion raised in Aguedo’s
sentencing memorandum during the sentencing hearing (the hearing only discussed
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the variance). Nevertheless, there is nothing in the record to indicate that the district
court believed that it did not have the authority to grant the downward departure.
Accordingly, it is assumed that the district court understood that it had such
authority. Under the circumstances, we lack jurisdiction to review the denial of the
downward departure motion.
Last, Aguedo argues that the court should have granted him a downward
variance based on mental illness and diminished capacity. But the court weighed the
§ 3553(a) factors and determined that, despite evidence of some mental illness or
diminished capacity, the sentence was appropriate. Weighing the seriousness of this
offense and Aguedo’s characteristics—including that Aguedo sold heroin in the trap
house, where between 50 and 120 baggies of heroin were sold daily—along with
the other § 3553(a) factors, is committed to the discretion of the district court.
4. D. Vargas’s Sentence
As the government concedes, D. Vargas’s sentence was procedurally
unreasonable because there was an error in the criminal history category
calculation. D. Vargas was sentenced to 188 months’ imprisonment and 5 years’
supervised release, based in part on a criminal history category of II. The criminal
history category calculation relied on a prior conviction which resulted in a
sentence of three years’ imprisonment. But D. Vargas was allowed to serve this
prior sentence as 24-hour house arrest. Thus, this conviction did not warrant a
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criminal history category of II because D. Vargas did not serve a period of
imprisonment in relation to it. See U.S.S.G. §4A1.2, cmt. n.2 (“To qualify as a
sentence of imprisonment, the defendant must have actually served a period of
imprisonment on such a sentence.”); United States v. Buter, 229 F.3d 1077, 1079
(11th Cir. 2000) (“The critical question is whether he actually served time on those
sentences.”). D. Vargas’s sentence will be vacated and remanded for resentencing.
III. CONCLUSION
We AFFIRM Villar’s and Aguedo’s convictions and sentences. We
AFFIRM G. Vargas’s sentence and D. Vargas’s conviction. D. Vargas’s sentence
is VACATED, and the case is remanded for resentencing.
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