USCA11 Case: 21-10758 Date Filed: 07/15/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10758
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL GOMEZ-GOMEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00032-CEH-AAS-3
____________________
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2 Opinion of the Court 21-10758
Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
Jose Manuel Gomez-Gomez appeals his sentence of 120
months’ imprisonment for offenses stemming from the trafficking
of cocaine aboard a vessel subject to the jurisdiction of the United
States. He challenges the district court’s calculation of the weight
of the contraband attributable to him and the denial of a reduced
sentence for his allegedly minor role in the conspiracy. Yet any
error involving the drug weight is harmless, and the district court
did not clearly err in denying a minor role reduction. After careful
review, and with the benefit of oral argument, we affirm Gomez-
Gomez’s sentence.
I. Background
On January 24, 2019, the United States Coast Guard
intercepted a stateless vessel in international waters—
approximately 575 miles off the coast of Ecuador. Gomez-Gomez
was one of three mariners on board. Coast Guard officers boarded
the vessel and saw bales containing a white powdery substance on
the deck that tested positive for cocaine. A further search of the
vessel uncovered 28 bales of cocaine, which the Coast Guard
seized. According to the government, the total weight of the
cocaine—as measured aboard the Coast Guard Cutter Dependable
just after the seizure—was 560 kilograms.
Later, a federal grand jury indicted Gomez-Gomez and his
two co-defendants for possession of five or more kilograms of
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21-10758 Opinion of the Court 3
cocaine with intent to distribute while on board a vessel subject to
the jurisdiction of the United States, pursuant to
46 U.S.C.
§§ 70503(a), 70506(a)–(b);
21 U.S.C. § 960(b)(1)(B)(ii) (Count 1), and
aiding and abetting one another in the same, in violation of
46
U.S.C. §§ 70503(a), 70506(a)–(b),
21 U.S.C. § 960(b)(1)(B)(ii);
18
U.S.C. § 2 (Count 2). Gomez-Gomez pled guilty to both counts. 1
a. Gomez-Gomez’s First Sentencing
Gomez-Gomez was originally sentenced to the statutory
minimum of 120 months’ imprisonment on June 25, 2019. Section
2D1.1(c) of the Sentencing Guidelines provides a base offense level
of 38 for a defendant who trafficked 450 kilograms or more of
cocaine, but a base offense level of 36 for defendants who trafficked
between 150 kilograms and 450 kilograms of cocaine. U.S.S.G.
§ 2D1.1(c)(1), (2). Despite a lack of record evidence establishing the
weight of the cocaine, the district court took the government at its
word that the net weight of the cocaine was greater than 450
kilograms.2 The district court also denied Gomez-Gomez’s request
for a minor role reduction.
1
The minimum term of imprisonment for each offense is 120 months and the
maximum term is life.
21 U.S.C. § 960(b)(1)(B)(ii).
2
After assigning a base offense level of 38, the district court reduced Gomez-
Gomez’s sentence based on the § 3552(a) factors and imposed a sentence of
two concurrent terms of 120 months’ imprisonment, followed by 5 years of
supervised release.
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4 Opinion of the Court 21-10758
Gomez-Gomez appealed his sentence, challenging the
district court’s finding that the net weight of the cocaine exceeded
450 kilograms, but he did not appeal the district court’s denial of a
minor role reduction. See United States v. Gomez, 818 F. App’x
907 (11th Cir. 2020). We vacated Gomez-Gomez’s sentence,
holding that the district court clearly erred by approximating the
weight of the cocaine based on the government’s stipulation with
no factual basis. Id. at 909–10. We remanded with instructions for
the district court to calculate the weight of the cocaine on record
evidence. Id. at 910.
b. Gomez-Gomez’s Second Sentencing
On remand, the probation office prepared a new PSI, which
mentioned (for the first time) the existence of a laboratory report
from a test of a representative sample of the cocaine seized and
included photographs of the sample and the test results.
Extrapolating from the test of the representative sample, the PSI
reported that “the defendant is accountable for approximately 560
kilograms of cocaine.” Two weeks after the government sent
Gomez-Gomez’s counsel the test results, his counsel notified the
government that he wanted to retain an expert to analyze and
weigh the drugs. The government, however, informed him the
bulk of the cocaine—all but 10.5 kg—had been destroyed.
Gomez-Gomez was resentenced on March 4, 2021. At the
hearing, he contended that the failure to notify him that the
contraband evidence would be destroyed violated the district
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21-10758 Opinion of the Court 5
court’s scheduling order and his due process rights. He also
renewed his minor role reduction objection.
The district court held that the government met its burden
of establishing that the net weight of the cocaine was 560
kilograms, based on the laboratory report and testimony from
government witnesses at the hearing and rejected his due process
argument. It also denied Gomez-Gomez a minor role reduction
after finding that Gomez-Gomez’s role was no less important than
his co-defendants, who were each hired to transport a large amount
of cocaine and took turns driving and navigating the vessel.
The district court then resentenced Gomez-Gomez to two
concurrent terms of 120 months’ imprisonment followed by five
years of supervised release. Because the weight of the cocaine
exceeded 450 kilograms, the district court assigned a base offense
level of 38, but downward varied the sentence because of Gomez-
Gomez’s unimpressive role in the offense, his advanced age, his
poverty, his lack of education, and his cooperation with the
government. The district court stated on the record, however, that
the sentence “would be the same” regardless of “whether the base
offense level was a 36 or a 38” (i.e., whether the cocaine was less or
greater than 450 kilograms).
Gomez-Gomez appeals his sentence, challenging the district
court’s calculation of the weight of the cocaine to determine his
base offense level under U.S.S.G. § 2D1.1(c), and its decision not to
award him a minor role reduction.
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6 Opinion of the Court 21-10758
II. Standard of Review
We review a district court’s factual determination of the drug
quantity attributable to a defendant for clear error. United States
v. Azmat,
805 F.3d 1018, 1046 (11th Cir. 2015). Likewise, 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). “Clear error
review is deferential, and ‘we will not disturb a district court’s
findings unless we are left with a definite and firm conviction that
a mistake has been committed.’” United States v. Cruickshank,
837
F.3d 1182, 1192 (11th Cir. 2016) (quoting United States v. Ghertler,
605 F.3d 1256, 1267 (11th Cir. 2010)). We review the substantive
reasonableness of a sentence for an abuse of discretion. United
States v. Rosales-Bruno,
789 F.3d 1249, 1255 (11th Cir. 2015).
III. Discussion
Gomez-Gomez argues that the district court erred in
determining the weight of the cocaine attributable to him to
determine his base offense level under U.S.S.G. § 2D1.1(c). He
claims that destruction of the representative sample and bulk
contraband violated the district court’s scheduling order and his
due process rights and that the net weight of the cocaine was
actually 447 kilograms. 3 We need not address any of Gomez-
3
Gomez-Gomez’s arguments about the scheduling order and his due process
rights mirror his argument about drug weight—namely, that if the cocaine
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Gomez’s challenges to the weight of the cocaine and his base
offense level under U.S.S.G. § 2D1.1(c) because any alleged error
was harmless.
A district court’s alleged error in sentencing a defendant is
harmless if the court states on the record that a disputed guideline
calculation did not matter to the sentence imposed and if the
ultimate sentence imposed is substantively reasonable. United
States v. Keene,
470 F.3d 1347, 1348–50 (11th Cir. 2006).
Accordingly, we assume the district court erred, calculate the
guideline range without the error, and then analyze whether the
sentence would be substantively reasonable under the properly
calculated guideline range.
Id.
U.S.S.G. § 2D1.1(c)(1) provides for a base offense level of 38
for the unlawful manufacturing, importing, exporting, or
trafficking of “450 KG or more of Cocaine.” But an offense
involving between 150 and 450 kilograms of cocaine receives a base
offense level of 36. Id.
Here, the district court stated on the record that its sentence
“would be the same” regardless of “whether the base offense level
was a 36 or a 38”—in other words, even if the government failed to
show the net weight of cocaine attributable to Gomez-Gomez was
weighed less than 450 kilograms, the district court would have assigned him a
base offense level of 36 rather than 38. See U.S.S.G. § 2D1.1(c)(1).
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greater than 450 kilograms the district court would still sentence
him to 120 months’ imprisonment.
As to substantive reasonableness, had the district court
applied a base level offense of 36, Gomez-Gomez’s total offense
level would have been 29. With an offense level of 29 and a
criminal history category of I, Gomez-Gomez’s guidelines range
would have been 87 to 108 months. See U.S.S.G., Ch. 5, Pt. A.
Gomez-Gomez’s sentence is reasonable for two reasons. First, the
120-month sentence, while 12 months above the high end of the
unenhanced guidelines, was well below the statutory maximum of
life. United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008);
21 U.S.C. § 960(b)(1)(B)(ii). Second, the record shows that the
district court evaluated the § 3553(a) factors in imposing its
sentence, considering Gomez-Gomez’s relatively advanced age, his
poverty as a youth, his role in the offense, the need to avoid
unwarranted sentencing disparities between him and his co-
defendants, and the amount of cocaine involved. It also stated that
a sentence of 120 months is “sufficient but not greater than
necessary to comply with the statutory purposes of sentencing.”
Accordingly, assuming Gomez-Gomez’s base offense level was 36,
his sentence of 120 months’ imprisonment was substantively
reasonable, and any error in calculating the weight of the cocaine
was harmless.
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Gomez-Gomez also claims the district court erred in failing
to award him a two-level reduction for playing only a minor role
in the drug trafficking conspiracy. 4 We disagree.
4
The government claims that Gomez-Gomez is barred from raising this issue
on appeal under the law of the case doctrine because Gomez-Gomez failed to
raise the issue in his first appeal. We disagree. “The law of the case doctrine,
self-imposed by the courts, operates to create efficiency, finality, and
obedience within the judicial system so that an appellate decision binds all
subsequent proceedings in the same case.” United States v. Amedeo,
487 F.3d
823, 829 (11th Cir. 2007) (quotations omitted). However, a mandate providing
for a general vacatur of a sentence requires resentencing de novo, akin to
when we vacate a defendant’s criminal conviction. United States v. Martinez,
606 F.3d 1303, 1304 (11th Cir. 2010). In contrast, when we issue a limited
mandate with particular remand instructions, the district court is restricted to
the issues outlined in the mandate. United States v. Davis,
329 F.3d 1250, 1252
(11th Cir. 2003). Unlike a general vacatur, a limited mandate does not “nullify
all prior proceedings.”
Id. (quotations omitted).
The law of the case doctrine is inapplicable here because our mandate
in Gomez I provided for a general, rather than limited, vacatur of Gomez-
Gomez’s sentence, permitting the district court to resentence him de novo.
See 818 F. App’x at 910 (“[W]e vacate Gomez’s 120-month total sentence and
remand his case to the District Court for resentencing consistent with this
opinion.”). Accordingly, on remand the probation office prepared a new PSI,
Gomez-Gomez made a slew of objections (including an objection to the denial
of a minor role adjustment), and the district court considered each objection
de novo pursuant to our instructions. Consequently, even if the law of the
case doctrine would otherwise apply, Gomez-Gomez’s claims arise from the
district court’s second de novo sentencing and therefore could not have been
brought in earlier proceedings. Thus, the law of the case doctrine does not
bar Gomez-Gomez’s minor role adjustment argument, and we consider it on
appeal.
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10 Opinion of the Court 21-10758
The Guidelines provide for a two-level reduction in a
defendant’s offense level for being a “minor participant” in the
criminal conduct. U.S.S.G. § 3B1.2. The Guidelines commentary
explains that a minor participant is “less culpable than most other
participants in the criminal activity, but whose role could not be
described as minimal.” Id., comment. (n.5). A district court may
apply the minor role reduction based on a preponderance of the
evidence. Cruickshank, 837 F.3d at 1192. In determining whether
a defendant qualifies for a minor role adjustment, the district court
must assess “first, the defendant’s role in the relevant conduct for
which [he] has been held accountable at sentencing, and, second,
[his] role as compared to that of other participants in [the] relevant
conduct.” Rodriguez De Varon,
175 F.3d at 940–41.
Gomez-Gomez has failed to show the district court clearly
erred in finding he was not entitled to a minor role adjustment. In
analyzing the issue, the district court assessed Gomez-Gomez’s
role in the relevant conduct, noting that Gomez-Gomez was hired
to deliver drugs and, at times, navigated and piloted the vessel. The
district court also found that Gomez-Gomez’s role in the
conspiracy was the same as the other two mariners arrested aboard
the vessel—the co-defendants “all held a similar role, and that role
was to transport the drugs safely to a destination.” Gomez-Gomez
points to no evidence undermining these findings. Accordingly,
Gomez-Gomez fails to carry his burden to demonstrate that the
district court clearly erred by finding Gomez-Gomez did not
qualify for a role reduction.
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* * *
For these reasons, we affirm Gomez-Gomez’s sentence.
AFFIRMED.
