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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13192
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cr-00178-RWS-LTW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO VEGA-GUTIERREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 1, 2020)
Before NEWSOM, LAGOA and HULL, Circuit Judges.
PER CURIAM:
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After pleading guilty, Humberto Vega-Gutierrez appeals his below-
guidelines-range sentence of 180 months’ imprisonment imposed for his various
drug-conspiracy, drug-possession, and firearm-possession offenses. On appeal,
Vega-Gutierrez challenges the substantive reasonableness of his total sentence.
After review, we affirm.
I. BACKGROUND
A. Offense Conduct 1
From early-2014 to mid-2015, defendant Vega-Gutierrez, who was 69 years
old at the time, participated in a methamphetamine-trafficking scheme with his two
codefendants, Israel Vega-Perez and Anthony Robertson. During this time period,
law enforcement observed and documented six transactions. Each transaction
generally followed the same pattern—codefendant Vega-Perez negotiated a
methamphetamine deal with a buyer and coordinated a meeting between the buyer
and defendant Vega-Gutierrez, who then conducted the transaction at one of his
three residences or, in one instance, a gas station. Codefendant Robertson was a
recurring buyer in the scheme.
1
The record of the offense conduct is based on the unobjected-to facts contained in Vega-
Gutierrez’s presentence investigation report and the prosecution’s recitation of its factual basis
supporting the charges at the change-of-plea hearing.
2
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In the six documented drug transactions, defendant Vega-Gutierrez supplied
the buyers these amounts of methamphetamine: (1) 200.3 grams during a January
2014 sale; (2) 988.6 grams during a January 2014 sale with codefendant
Robertson, who previously had purchased about three kilograms; (3) 676.2 grams
during a March 2014 sale; (4) 99 grams during an April 2014 sale; (5) 28.35 grams
during another April 2014 sale; and (6) 27.3 grams during a July 2015 controlled
buy.
Upon defendant Vega-Gutierrez’s arrest and a search of one of his
residences, law enforcement officers discovered 233.8 grams of methamphetamine,
$4,322 in cash, two digital scales, three cellphones, a device that detects
counterfeit bills, and three pistols, two of which were loaded. All in all, Vega-
Gutierrez’s six drug sales and the drugs found at the residence yielded an
approximate total of 5.22 kilograms (5,219.35 grams) of methamphetamine.
B. Indictment and Psychiatric Commitment
Vega-Gutierrez was indicted on these charges: (1) one count of conspiracy
to possess with intent to distribute at least 50 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a), (b)(1)(A) and 846 (Count 1); (2) two counts of
distributing at least 50 grams of methamphetamine, in violation of § 841(a),
(b)(1)(A), and 18 U.S.C. § 2 (Counts 2-3); (3) two counts of possessing with intent
to distribute at least 50 grams of methamphetamine, in violation of §§ 841(a),
3
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(b)(1)(A), and 2 (Counts 4-5); and (4) one count of possessing a firearm as an alien
unlawfully present in the United States, in violation of 18 U.S.C. §§ 922(g)(5) and
924(a)(2) (Count 6). Codefendant Vega-Perez was also charged in Counts 1
through 5, and codefendant Robertson was charged in Counts 1 and 4.
Defendant Vega-Gutierrez initially pled not guilty and moved the court to
order a psychiatric examination and a hearing to determine whether he was
competent to stand trial. Due to concerns regarding Vega-Gutierrez’s deficits in
cognition, memory, and communication, the district court granted his motion for a
psychiatric examination, stayed his case, and ordered him committed for treatment.
After about nine months of commitment, Vega-Gutierrez was re-examined and
adjudicated competent to stand trial.
Together, Vega-Gutierrez’s various psychiatric examinations showed that he
had suffered from: (1) a previous concussion; (2) concussion-related symptoms,
including short-term memory loss, dementia, dizziness, disorientation, hearing
loss, blurry vision, loss of speech, and hearing voices and sounds; (3) borderline
intellectual functioning; (4) significant intellectual deficits in verbal language,
cognitive efficiency, and thinking ability; (5) cognitive disorder, not otherwise
specified; and (6) mental-health diagnoses of generalized anxiety disorder, major
depressive disorder - moderate, and somatic symptom disorder. These
examinations also revealed that Vega-Gutierrez was from Mexico, grew up in
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poverty, had almost no formal education, was unfamiliar with the U.S. justice
system, spoke no English, and even had difficulty effectively communicating in
Spanish.2
C. Guilty Plea
In February 2019, after being adjudicated competent to stand trial,
Vega-Gutierrez pled guilty to Counts 1, 2, 3, 5, and 6, without the benefit of a plea
agreement. At the change-of-plea hearing, the government provided the above
factual basis supporting the charges against Vega-Gutierrez. While
Vega-Gutierrez initially indicated that he could not remember the factual details of
his offense conduct, he confirmed that he had worked with others to distribute
methamphetamine. Moreover, Vega-Gutierrez’s attorney stated that Vega-
Gutierrez was not contesting the government’s evidence and recognized that the
government had the necessary facts and evidence to convict him. The district court
characterized Vega-Gutierrez’s plea as an Alford-type3 plea. The district court
2
The forensic psychiatrist, who conducted Vega-Gutierrez’s final examination, opined
that the extent of Vega-Gutierrez’s cognitive, memory, and communication deficits were likely
less severe than reported given his abilities: (1) to function in competency restoration classes;
(2) to talk on the phone with his friends and family without significant issues; (3) to
communicate directly with the Spanish interpreter; and (4) to remember several important details
when asked.
3
North Carolina v. Alford,
400 U.S. 25, 34-38,
91 S. Ct. 160, 166-68 (1970) (holding that
a defendant may voluntarily, knowingly, and understandingly plead guilty and consent to be
sentenced even if he is unwilling to admit to his participation in the crime when he is represented
by competent counsel, he intelligently concludes that his interests require a guilty plea, and the
record strongly evidences his guilt).
5
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confirmed with Vega-Gutierrez’s attorney that: (1) she was comfortable with
Vega-Gutierrez’s acceptance of the plea despite his memory issues;
(2) Vega-Gutierrez wished to plead guilty; and (3) he understood the charges and
evidence against him. The district court found that there was a sufficient factual
basis supporting the guilty plea, accepted Vega-Gutierrez’s knowing and voluntary
plea, and adjudicated him guilty.4
D. Presentence Investigation Report (“PSI”)
Vega-Gutierrez’s PSI grouped his convictions and assigned him a base
offense level of 36 because his offenses involved between 30,000 and 90,000
kilograms of converted drug weight. Specifically, Vega-Gutierrez’s involvement
with 5.22 kilograms (5,219.35 grams) of methamphetamine equated to 48,710.3
kilograms of converted drug weight. His base offense level of 36 was:
(1) increased by two levels because he possessed several firearms; (2) increased by
two levels because he maintained at least one residence for the purpose of
manufacturing or distributing a controlled substance; and (3) decreased by three
levels because he accepted responsibility, which resulted in a total offense level of
37. Vega-Gutierrez’s total offense level of 37 and criminal history category of I
yielded an advisory guidelines range of 210 to 262 months’ imprisonment.
4
In this appeal, Vega-Gutierrez does not challenge his guilty plea.
6
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E. Sentencing Hearing
At the sentencing hearing, the district court confirmed that there were no
unresolved PSI objections and adopted the PSI’s factual findings, guidelines
calculations, and 210-to-262-month advisory guidelines range. 5 The government
argued that a 210-month sentence was reasonable because: (1) Vega-Gutierrez was
69 years old at the time of the offenses and should have known better; (2) he
served as a supplier in the methamphetamine-trafficking conspiracy; (3) he
supplied methamphetamine to at least six individuals during the relevant time
frame; (4) methamphetamine was a serious and dangerous drug; (5) he used a
number of residences for distribution; (6) he possessed drugs, cash, drug
paraphernalia, and loaded firearms at one of those residences; and (7) his less
culpable codefendant Robertson, who also had health issues, received a 160-month
sentence.6
Defendant Vega-Gutierrez asked the district court to impose a below-
guidelines-range sentence of 120 months, which was the statutory mandatory
minimum term of imprisonment. Vega-Gutierrez argued that he played a lesser
role in the offenses because, while he supplied drugs to buyers, he did so only
5
Vega-Gutierrez’s PSI objections, none of which are relevant to this appeal, were
resolved by the probation officer prior to the sentencing hearing.
6
Robertson pled guilty to Count 1 and was sentenced to 160 months’ imprisonment.
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under codefendant Vega-Perez’s direction and lacked the cognitive ability to be a
drug supplier on his own. Next, Vega-Gutierrez highlighted his poor health
condition and his intellectual, memory, and communication deficits.
Vega-Gutierrez also contended that he was unlikely to reoffend given his older
age, lack of criminal history, impressionable role in the offense conduct, and desire
to return to his family. Further, Vega-Gutierrez compared himself to codefendant
Robertson, who was not cognitively impaired and was a criminal history category
V.
The government responded that defendant Vega-Gutierrez remained actively
involved in the drug distribution even after his 2014 concussion, that his difficulty
in communicating in English was immaterial because codefendant Vega-Perez
acted as an interpreter during transactions with English-speaking buyers, and that
Vega-Gutierrez likely would continue to receive treatment for his various
conditions while in prison.
Before pronouncing its sentence, the district court emphasized that Vega-
Gutierrez’s offenses were “very serious” because he was involved with “a fairly
substantial distribution of drugs,” those drugs harmed its users, and the drug trade
caused law enforcement issues. The district court recognized that several of Vega-
Gutierrez’s history and characteristics were mitigating, including his older age,
various mental and physical health conditions, lack of criminal history, and
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likelihood of deportation from the United States upon the completion of his
sentence. As to specific deterrence, the district court sought to impose a sentence
that would last until Vega-Gutierrez was at a point in his life when he would be
much less likely to reoffend. The district court also briefly acknowledged the goal
of general deterrence. As to sentencing disparities, the district court considered
codefendant Robertson’s 160-month sentence, which was below his 188-to-235-
month advisory guidelines range and accounted for “his health issues and other
factors.”
While taking into account the mitigating factors of Vega-Gutierrez’s mental
and physical health, age, and likelihood of deportation, the district court stated that
Vega-Gutierrez’s sentence should be proportionate to his higher degree of
culpability as compared to codefendant Robertson. Accordingly, the district court
varied downward from the 210-to-262-month advisory guidelines range and
sentenced defendant Vega-Gutierrez to a total 180-month sentence of
imprisonment—which consisted of concurrent terms of 180 months as to Counts 1,
2, 3, and 5, and 120 months as to Count 6—followed by a total of five years’
supervised release. Vega-Gutierrez and the government both objected to the
sentence’s substantive reasonableness.
This is Vega-Gutierrez’s appeal.
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II. DISCUSSION
Defendant Vega-Gutierrez argues that his below-guidelines-range sentence
of 180 months is substantively unreasonable. This Court reviews the
reasonableness of a sentence under a deferential abuse-of-discretion standard
employing a two-step process. United States v. Pugh,
515 F.3d 1179, 1190 (11th
Cir. 2008). First, we examine whether the district court committed any significant
procedural error.
Id. Because Vega-Gutierrez claims no procedural error, we
move to the second step of determining whether his sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the
circumstances.7
Id. The party challenging the sentence—here, Vega-Gutierrez—
carries the burden of showing that the sentence is unreasonable.
Id. at 1189.
We will vacate a sentence as substantively unreasonable only 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. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks
omitted). While the district court must consider all the applicable § 3553(a)
7
The § 3553(a) factors include, of relevance: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense;
(3) the need for deterrence; (4) the need to protect the public from the defendant’s future crimes;
(5) the advisory guidelines range; and (6) the need to avoid unwarranted sentence disparities. 18
U.S.C. § 3553(a)(1)-(2), (4), (6).
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factors, it has wide discretion in deciding how much weight to assign to any
particular sentencing factor. United States v. Rosales-Bruno,
789 F.3d 1249, 1254
(11th Cir. 2015). In fact, a district court is entitled to attach great weight to one
§ 3553(a) factor over others.
Id.
When the district court selects a sentence that falls within the advisory
guidelines range, we generally expect the chosen sentence to be a reasonable one.
United States v. Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009). Further, “[a]
sentence imposed well below the statutory maximum penalty is an[other] indicator
of a reasonable sentence.” United States v. Stanley,
739 F.3d 633, 656 (11th Cir.
2014).
Here, Vega-Gutierrez’s 180-month sentence falls 30 months below the
bottom of his advisory guidelines range of 210 to 262 months’ imprisonment. See
Docampo, 573 F.3d at 1101. Vega-Gutierrez’s below-guidelines-range sentence is
also substantially below the statutory maximum penalty of life imprisonment for
Counts 1, 2, 3, and 5. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing a statutory
maximum term of life imprisonment for a violation of § 841(a) involving 50 grams
or more of methamphetamine);
Stanley, 739 F.3d at 656. Nevertheless, Vega-
Gutierrez argues that his sentence is substantively unreasonable because the district
court failed to properly consider his older age, mental and physical health
conditions, minimal education, difficulty communicating in English, lack of
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criminal history, and lesser role as a supplier working under codefendant Vega-
Perez’s leadership and direction.
Contrary to Vega-Gutierrez’s contention, all of these circumstances were
discussed during the sentencing hearing, and the district court explicitly deemed as
mitigating factors Vega-Gutierrez’s older age, mental and physical health
conditions, and lack of criminal history, and departed 30 months downward from
his advisory guidelines range for those reasons. See 18 U.S.C. § 3553(a)(1). The
district court was well within its substantial discretion to weigh less heavily Vega-
Gutierrez’s remaining concerns and to weigh more heavily: (1) the seriousness of
his drug-trafficking offenses, which involved approximately 5.22 kilograms
(5,219.35 grams) of methamphetamine, a drug that harms its users and poses law
enforcement issues; (2) Vega-Gutierrez’s significant role as a supplier within the
drug-trafficking offenses; and (3) avoiding any unwarranted sentencing disparity
between him and his less-culpable codefendant Robertson, who was a buyer rather
than a supplier and received a 180-month sentence. See
id. § 3553(a)(1)-(2), (6);
Rosales-Bruno, 789 F.3d at 1254. Moreover, the district court did not err when it
focused on avoiding any unwarranted sentencing disparity solely between
defendant Vega-Gutierrez and codefendant Robertson, and in not considering
codefendant Vega-Perez because codefendant Vega-Perez had yet to be
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sentenced.8 See United States v. Spoerke,
568 F.3d 1236, 1252 (11th Cir. 2009)
(explaining that there is no unwarranted sentencing disparity between a convicted
and sentenced defendant and a codefendant who, for example, has yet to be
sentenced).
Therefore, Vega-Gutierrez has not shown 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 [this]
case.” See
Irey, 612 F.3d at 1190 (quotation marks omitted). Because Vega-
Gutierrez has not shown that his sentence is substantively unreasonable, we affirm
his 180-month sentence.
AFFIRMED.
8
In any event, in late February 2020, after pleading guilty to Count 1, codefendant Vega-
Perez was sentenced to 210 months’ imprisonment, which was 30 months higher than defendant
Vega-Gutierrez’s sentence.
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