United States v. Jairo Rodriguez-Cuero ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13085
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIRO RODRIGUEZ-CUERO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00545-TPB-AEP-2
____________________
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2 Opinion of the Court 20-13085
Before LUCK, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Jairo Rodriguez-Cuero appeals his 120-month sentence for
one count of conspiracy to distribute and to possess with intent to
distribute 5 kilograms or more of cocaine while aboard a vessel sub-
ject to the jurisdiction of the United States. First, he argues that the
government breached the parties’ plea agreement by making un-
supported statements during the sentencing hearing. Second, he
contends that his 120-month sentence is unreasonable because the
district court relied upon those unsupported statements. As a rem-
edy for both alleged errors, he asks us to vacate his sentence and
remand his case for resentencing by a different district judge. Be-
cause we are writing solely for the parties, we will not set out the
facts at length in this opinion.
I.
Rodriguez-Cuero’s first argument on appeal is that the gov-
ernment breached its plea agreement with him by making a “sur-
prise claim” at his sentencing hearing that he conspired with an un-
cle and brother to engage in drug trafficking. Because Rodri-
guez-Cuero did not object to the alleged breach before the district
court, we review for plain error rather than de novo. United States
v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). “Under plain
error review, there must be (1) an error, (2) that is plain, (3) that
affects the defendant’s substantial rights, and (4) that seriously
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20-13085 Opinion of the Court 3
affects the fairness, integrity, or public reputation of judicial pro-
ceedings.” Id. The defendant must show that the error was “prej-
udicial”—i.e., that it “affected the outcome of the district court pro-
ceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 734,
113 S. Ct. 1770, 1778 (1993)). And to show prejudice in this context,
Rodriguez-Cuero must prove that the breach affected his sentence.
Puckett v. United States, 556 U.S. 129, 142 n.4, 129 S. Ct. 1423, 1433
n.4 (2009).
“‘A material promise by the government, which induces a
defendant to plead guilty, binds the government to that promise.’
Hence, the government breaches a plea agreement when it fails to
perform the promises on which the plea was based.” United States
v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016) (citations omitted)
(quoting United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir.
2007) (per curiam)). “Whether the government violated the agree-
ment is judged according to the defendant’s reasonable under-
standing of the agreement when he entered the plea.” Thomas,
487 F.3d at 1360.
Rodriguez-Cuero contends that the government breached
the following language in the plea agreement by advancing “un-
supported facts and conjecture at sentencing”:
The United States reserves its right and obligation to
report to the Court and the United States Probation
Office all information concerning the background,
character, and conduct of the defendant, to provide
relevant factual information, including the totality of
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4 Opinion of the Court 20-13085
the defendant’s criminal activities, . . . to respond to
comments made by the defendant or defendant’s
counsel, and to correct any misstatements or inaccu-
racies. . . .
He asserts that the government “improperly stated” that he con-
spired with his uncle and brother “to further international narcotics
trafficking over decades.”
We disagree. The government did not argue at the sentenc-
ing hearing that Rodriguez-Cuero conspired with his uncle and
brother to engage in international drug trafficking. When explain-
ing its request for “a low-end guideline sentence” per the terms of
the plea agreement, the government said the following:
Mr. Rodriguez Cuero had what would seem to be sig-
nificant ties to the drug trafficking trade at large. If
you look through his presentence report, it makes
note of the fact that his uncle had been previously
convicted in 2003 for a boat trip, and then an older
brother of his was also convicted in 2015 of another
boat trip. This shows that at least there were these
familial connections over a decade of time to the
drug-trafficking organization at large.
Then, also, it goes to Mr. Rodriguez Cuero’s superior
knowledge of both the organization and then the con-
sequences of getting on these boats and engaging in
these trips. Each of the individuals, his uncle and his
brother, were both sentenced to 108 months. . . .
....
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20-13085 Opinion of the Court 5
. . . Mr. Rodriguez Cuero, as a family member, was
aware of this, obviously noted their absence from
their country. Yet, despite that, he chose to continue
along that path. He chose to engage with the
drug-trafficking organization . . . .
At no point did the government suggest that the basis for his con-
spiracy conviction was a conspiracy with his family members. Ra-
ther, it argued that he was a knowledgeable conspirator who knew
he was breaking the law because other members of his family had
made the same choice and been criminally punished for it.
Rodriguez-Cuero also suggests that the government
breached the plea agreement by not correcting misstatements and
inaccuracies forwarded by the district court. Again, we disagree.
Even assuming that the district court made such errors (an assump-
tion we will dispute momentarily—see infra Part II), the plea agree-
ment did not obligate the government to correct those alleged er-
rors. The relevant plea agreement provision states that the gov-
ernment “reserve[d]” the “right and obligation” “to respond to
comments made by the defendant or defendant’s counsel, and to
correct any misstatements or inaccuracies.” Put simply, the gov-
ernment reserved the right to respond to, and correct, erroneous
comments made by the defendant or his attorney. Rodri-
guez-Cuero could not reasonably have interpreted this provision
to mean that the government had an affirmative duty to correct
any misstatement made by the district court. See Hunter, 835 F.3d
at 1324 (“Whether the government violated the agreement is
judged according to the defendant’s reasonable understanding at
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6 Opinion of the Court 20-13085
the time he entered his plea.” (quoting United States v. Boatner,
966 F.2d 1575, 1578 (11th Cir. 1992))).
Moreover, even if Rodriguez-Cuero could establish that the
government plainly breached the plea agreement, he cannot satisfy
the prejudice prong of plain error review. In other words, he can-
not show that the breach affected his sentence. De La Garza, 516
F.3d at 1269; Puckett, 556 U.S. at 142 n.4, 129 S. Ct. at 1433 n.4.
The district court explained at the sentencing hearing the relevance
of Rodriguez-Cuero’s familial relations:
What I was taking away from that point was the idea
that he’s not somebody who is just sort of walking
down the street, like we see in dope cases here in Flor-
ida where it’s some kind of clueless young kid and
someone says, hey, will you go sell or deliver this
dope to somebody down the street? Or will you go
pawn this gun in the pawn shop? And they are, like,
oh, well, okay, I'll do it, and not really fully grasping
what they are doing.
Where he’s living in an environment where people
around him have made the choice to get involved in
this, got caught, got sent to prison. So what I’m tak-
ing away from this is he basically made a calculated
decision. Hey, they are offering me a heck of a lot of
money. I don’t have a job now. I need money. I’ll
balance the risk of getting caught and going to prison
in the United States versus however much money I
can make here, and I’ll make a choice to violate the
law . . . . That’s what I took away from that point.
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20-13085 Opinion of the Court 7
The district court never thought that the government was arguing
that Rodriguez-Cuero engaged in a drug-trafficking conspiracy
with his uncle and brother. Rather, it viewed the government’s
argument as relating to his knowing violation of the law. Accord-
ingly, even if the government had breached the plea agreement as
Rodriguez-Cuero argues on appeal, he cannot show reversible er-
ror because the district court did not base his sentence on the no-
tion that he conspired with his uncle and brother. 1
II.
Rodriguez-Cuero’s second argument on appeal is that his
sentence is unreasonable because it was based upon an impermis-
sible sentencing factor and erroneous facts. “We review the rea-
sonableness of the district court’s sentences for an abuse of discre-
tion, employing a two-step process.” United States v. Gomez, 955
F.3d 1250, 1255 (11th Cir. 2020) (per curiam). “We first look to
whether the district court committed any significant procedural er-
ror, such as miscalculating the advisory guideline range, . . . select-
ing a sentence based on clearly erroneous facts, or failing to
1
Rodriguez-Cuero also quibbles with the government’s statement that his un-
cle and brother went on “boat trip[s]”—i.e., that they attempted to transport
drugs into the United States. But he never tethers this alleged misstatement
to his argument that the government breached the plea agreement. Even if
he had, it is doubtful that he could have shown that the government’s use of
this language warrants reversal under our plain error standard of review be-
cause this language likely did not affect his sentence for the same reasons dis-
cussed above.
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8 Opinion of the Court 20-13085
adequately explain the chosen sentence.” United States v. Trailer,
827 F.3d 933, 936 (11th Cir. 2016) (per curiam). “For a factual find-
ing to be ‘clearly erroneous,’ this court, ‘after reviewing all of the
evidence, must be left with a definite and firm conviction that a
mistake has been committed.’” United States v. Rodriguez-Lopez,
363 F.3d 1134, 1137 (11th Cir. 2004) (quoting United States v. Fos-
ter, 155 F.3d 1329, 1331 (11th Cir. 1998)).
Second, “[i]f the district court’s decision contains no signifi-
cant procedural error, we review the substantive reasonableness of
the sentences ‘through the prism of abuse of discretion.’” Gomez,
955 F.3d at 1255 (quoting United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008)). The abuse-of-discretion standard “allows a range
of choice for the district court, so long as that choice does not con-
stitute a clear error of judgment.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (quoting United States v. Fra-
zier, 387 F.3d 1244, 1259 (11th Cir. 2004)). “A district court abuses
its discretion when it (1) fails to afford consideration to relevant fac-
tors 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.” Id. (quoting United
States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)
(Birch, J., dissenting)). The appropriate factors for sentencing are
contained in 18 U.S.C. § 3553(a). 2 Id. Whether a factor the district
2
Section 3553(a) requires that the district court “shall impose a sentence suffi-
cient, but not greater than necessary,” to accomplish multiple goals, including
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20-13085 Opinion of the Court 9
court considered is “impermissible” is a legal question we review
de novo. United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.
2008). A sentence may “be unreasonable, regardless of length, if
the district court’s selection of the sentence was substantially af-
fected by its consideration of impermissible factors.” United States
v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006) (footnote omit-
ted), abrogated on other grounds by Kimbrough v. United States,
552 U.S. 85, 128 S. Ct. 558 (2007).
A district court may not sentence a defendant based on
“groundless inferences.” United States v. Lopez, 898 F.2d 1505,
1512 (11th Cir. 1990). But a district court may make reasonable
inferences “based on common sense and ordinary human experi-
ence.” United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013);
see also United States v. Chavez, 584 F.3d 1354, 1367 (11th Cir.
2009) (“We are unable to say that the district court’s inference that
the cash came from trafficking in methamphetamine was
to reflect the seriousness of the offense, promote respect for the law, and pro-
vide just punishment for the offense; to afford adequate deterrence to criminal
conduct; and to protect the public from further crimes of the defendant. In
addition, the court must consider the nature and circumstances of the offense
and the history and characteristics of the defendant; the kinds of sentences
available; the guideline sentencing range; any pertinent policy statements; the
need to avoid unwarranted sentencing disparities among defendants with sim-
ilar records who have been convicted of similar conduct; and the need to pro-
vide restitution to any victims. 18 U.S.C. § 3553(a)(1), (3)–(7).
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10 Opinion of the Court 20-13085
speculative to the point of being clearly erroneous. It was, instead,
a reasonable inference that the court was free to make.”).
On appeal, Rodriguez-Cuero argues that his sentence was
procedurally unreasonable because it was based on clearly errone-
ous facts that were introduced for the first time at sentencing. See
Trailer, 827 F.3d at 936 (stating that a district court commits a “sig-
nificant procedural error” when it bases a sentence “on clearly er-
roneous facts”). He identifies three erroneous facts that allegedly
affected his sentencing: (i) that he maintained a relationship with
his uncle and brother; (ii) that he knew the dates of, reasons for,
and lengths of their sentences; and (iii) that he had “superior
knowledge” of the relevant drug-trafficking organization due to his
familial relationship with his uncle and brother. Moreover, he ar-
gues that the government incorrectly asserted that his brother’s
sentence was 108 months rather than 84 months.
We cannot conclude that the district court’s sentence relied
upon any clearly erroneous facts, or that the district court relied
upon unreasonable inferences from the record evidence. Rodri-
guez-Cuero contends that the district court selected his sentence
“primarily” because “his biology, alone, inferred a drug-trafficking
conspiracy.” As already explained, the government never argued,
and the district court never found, that Rodriguez-Cuero engaged
in a drug-trafficking conspiracy with his uncle and brother. Rather,
the district court determined that Rodriguez-Cuero likely had
knowledge of his uncle and brother’s convictions and sentences
and that he, presumably, chose to engage in drug trafficking despite
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20-13085 Opinion of the Court 11
knowing it was against the law. The district court explained its rea-
soning for the 120-month sentence as follows:
The other people in his life got 108 months. I’m sure
he found out about that someway or another. Even
though I get that his brother isn’t close to him, the
uncle was very close to him because the uncle is the
one that raised him as one of ten children. So he
knew that 108 months was a possibility.
That didn’t deter him from doing this. And then the
amount of drugs involved here, while I understand
the point about the street value maybe isn’t the right
way to look at it, we do know it was a lot of drugs,
and that’s bad. So in light of those factors, his sen-
tence is 120 months, which is below the bottom of the
guidelines but I think is the appropriate sentence that
translates to about ten years, and I think that accom-
plishes what I’m trying to do here, which is send a
message to people -- or to him that you can’t do this.
It’s bad.
Moreover, in its denial of Rodriguez-Cuero’s post-sentence motion
for relief, the court stated that its “purpose” when referencing his
uncle and brother’s sentence “was to indicate that [he] was at least
somewhat aware that federal prison would be a possibility if he
were caught by U.S. authorities, yet he was not deterred from en-
gaging in similar conduct.” It affirmed that Rodriguez-Cuero’s be-
low-guidelines sentence “was calculated with no regard to past of-
fenses of family members.”
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12 Opinion of the Court 20-13085
To the extent that the district court did base Rodri-
guez-Cuero’s sentence on his likely knowledge of his uncle and
brother’s sentences, that was a “reasonable inference” based on the
record, not a clearly erroneous factual finding. Chavez, 584 F.3d at
1367. Rodriguez-Cuero acknowledged his awareness of his family
members’ sentences in his sentencing memorandum: “Mr. Rodri-
guez Cuero’s uncle and brother had succumbed to the temptation
in 2003 and 2015, and were each serving nine (9) year sentences in
the [United States]. Mr. Rodriguez Cuero knew the hardship his
uncle’s wife, and his brother’s family endured from their men’s ab-
sence.” Accordingly, we are not “left with a definite and firm con-
viction” that the district court’s assumption that Rodriguez-Cuero
knew of his family members’ sentences was clearly erroneous. Ro-
driguez-Lopez, 363 F.3d at 1137 (quoting Foster, 155 F.3d at 1331).
Because we have determined that Rodriguez-Cuero’s sen-
tence was not based on any clearly erroneous facts, we now review
“the substantive reasonableness” of his sentence under the
abuse-of-discretion standard of review. Gomez, 955 F.3d at 1255.
Rodriguez-Cuero argues that basing his sentence on erroneous
facts or impermissible factors is an abuse of discretion, but, as just
explained, the district court did not do so. Even assuming ar-
guendo (contrary to our holding above) that Rodriguez-Cuero’s
likely knowledge of his uncle and brother’s sentence was an imper-
missible factor, Rodriguez-Cuero has not shown that his sentence
is unreasonable because his sentence was not “substantially af-
fected by [the district court’s] consideration of” his family
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20-13085 Opinion of the Court 13
members’ past sentences. Williams, 456 F.3d at 1361. As men-
tioned, the district court said that it calculated his sentence “with
no regard to past offenses of family members.” Accordingly, we
cannot conclude that Rodriguez-Cuero’s below-guidelines sen-
tence is substantively unreasonable. Cf. United States v. Croteau,
819 F.3d 1293, 1310 (11th Cir. 2016) (“A sentence imposed well be-
low the statutory maximum penalty is another indicator of reason-
ableness.”).
In summary, the government did not plainly breach its plea
agreement with Rodriguez-Cuero. His sentence was procedurally
reasonable because the district court did not rely on erroneous facts
and did not clearly err in considering the facts of Rodriguez-
Cuero’s personal history and family. Additionally, his sentence was
substantively reasonable and below the guideline range. Accord-
ingly, we affirm.
AFFIRMED.