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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10365
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cr-00341-MHC-CMS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT JONATHAN CASTILLO JUAREZ,
a.k.a. Tomic Jona,
a.k.a. Jonathan,
a.k.a. Jona,
a.k.a. Tito,
Defendant-Appellant.
________________________
No. 20-10409
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-00341-MHC-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAOLA VALENZUELA AREVALO,
a.k.a. Pio Val,
a.k.a. Pao,
a.k.a. Nena,
a.k.a. Claudia,
a.k.a. Licenciada,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(April 7, 2021)
Before JILL PRYOR, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Paola Valenzuela Arevalo (Valenzuela) and
Herbert Jonathan Castillo Juarez (Castillo), a married couple, each appeal the
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sentence of imprisonment imposed after they pleaded guilty to drug-trafficking
crimes involving the importation of heroin and cocaine into the United States.
Valenzuela and Castillo argue that the district court made several procedural errors
at sentencing, including (1) calculating their Sentencing Guidelines offense level
based on the actual amount of heroin found on drug couriers captured in the United
States, when the defendants claim to have believed that they were trafficking
cocaine, at least in part; (2) applying a four-level enhancement to their Guidelines
offense level for being organizers or leaders of the drug trafficking operation;
(3) admitting hearsay evidence regarding the death of an unindicted coconspirator;
and (4) permitting the deceased coconspirator’s family and friends to speak at their
sentencing hearing. The defendants also contend that their 264-month sentences
were substantively unreasonable. We affirm.
I.
Between July and September 2016, several individuals who were caught
trying to smuggle heroin into the United States from Guatemala told authorities
that they were working for the defendants. Evidence provided by the couriers and
retrieved from various cell phones and social media platforms showed that the
defendants recruited or met with the couriers, provided plane tickets and itineraries
for their travel, gave them the heroin that they carried concealed in their luggage or
in the form of pellets that they swallowed, told them what to do if they passed the
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pellets early, and monitored their progress throughout their trips. The defendants
also provided haircuts, clothing, and Xanax for some of the couriers to help them
avoid detection.
The defendants’ drug-trafficking enterprise came to an end in August 2016,
when they were caught smuggling cocaine into Zurich. After serving time in
Switzerland, the defendants were extradited to the United States and charged in an
eight-count indictment with conspiracy to possess with intent to distribute heroin
and cocaine, conspiracy to import heroin and cocaine, importation of heroin into
the United States, and possession with intent to distribute heroin. They entered
guilty pleas to all eight counts, and after a joint sentencing hearing, they were each
sentenced to 264 months in prison followed by five years of supervised release.
Both defendants appealed, raising similar arguments and adopting one another’s
briefs. We granted the government’s motion to consolidate the appeals, and we
now resolve both appeals in this opinion.
II.
We review a district court’s factual findings related to sentencing, including
drug quantities attributable to the defendant and the defendant’s role in the offense,
for clear error. United States v. Almedina,
686 F.3d 1312, 1315 (11th Cir. 2012);
United States v. Docampo,
573 F.3d 1091, 1096 (11th Cir. 2009). We review the
court’s application of the Sentencing Guidelines to those facts de novo. Docampo,
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573 F.3d at 1096. We review the district court’s evidentiary rulings for an abuse of
discretion.
Id. We also review the reasonableness of the final sentence for an
abuse of discretion, evaluating “whether the sentence imposed by the district court
fails to achieve the purposes of sentencing as stated in section 3553(a).”
Id.
(citation omitted).
III.
A.
By pleading guilty to the charges in the third superseding indictment, the
defendants admitted that they conspired to possess with intent to distribute, and to
import into the United States, controlled substances. They admitted that the
conspiracy involved both heroin and cocaine, and they admitted that they in fact
possessed with intent to distribute heroin and did import heroin into the United
States on multiple occasions, by aiding and abetting each other, drug couriers, and
drug suppliers. At sentencing, they conceded that the couriers working for them
were caught with or admitted to making previous trips carrying a total of 19.31
kilograms of heroin. And yet each of them objects to the district court’s decision
to hold them responsible for 19.31 kilograms of heroin in calculating their base
offense level under the Sentencing Guidelines. They claim that they believed that
some or all of the couriers were carrying cocaine—which corresponds to a lower
offense level under the Guidelines—and they contend that the district court should
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have required proof that they knew the substance they trafficked was heroin before
holding them accountable for that drug. Our precedents, and the Guidelines
themselves, say otherwise.
As we have said before, “a defendant need not know the type of drug
involved in a drug offense to receive a base offense level based on that type of
drug.” Almedina, 686 F.3d at 1317. That is because “those who, acting with a
deliberate anti-social purpose in mind, become involved in illegal drug
transactions, assume the risk that their actions will subject them to enhanced
criminal liability.” United States v. Alvarez–Coria,
447 F.3d 1340, 1344 (11th Cir.
2006) (quoting United States v. Gomez,
905 F.2d 1513, 1514–15 (11th Cir. 1990)).
Our precedents are consistent with the commentary to the “relevant conduct”
guideline, which states that a defendant is accountable for the specific controlled
substance that he carries even if he doesn’t know what kind of drug it is, as long as
he knows that he is carrying a controlled substance. U.S.S.G. § 1B1.3, comment.
(n.4(A)(i)).
And contrary to Valenzuela’s argument, the district court was not required to
find that the specific type of controlled substance was reasonably foreseeable to the
defendants under the guideline applicable to the conduct of others. 1 See U.S.S.G.
1
That is not to say that it was not reasonably foreseeable to the defendants that the drug they
gave the couriers was heroin. At least two of the couriers, who between them accounted for
more than half of the heroin attributed to the defendants, were aware that the drug the defendants
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§ 1B1.3(a)(1)(B). The “relevant conduct” guideline provides that a defendant’s
Guidelines offense level should be calculated based on “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant; and” the acts of others in a “jointly undertaken criminal
activity” if the latter acts were, among other things, “reasonably foreseeable in
connection with that criminal activity.” Id. § 1B1.3(a)(1)(A)–(B) (emphasis
added). The defendants admitted to aiding and abetting each other, the couriers,
and their drug suppliers in importing heroin into the United States, and the
evidence amply supports their admission that they were directly involved in those
crimes. They recruited, instructed, and paid the couriers; provided the heroin they
carried; made or facilitated their travel arrangements; took steps to help them avoid
detection; and coached them through any difficulty they encountered during their
trips. The district court did not clearly err in finding that the defendants were
responsible under § 1B1.3(a)(1)(A) for their own conduct in possessing with the
intent to distribute 19.31 grams of heroin and in aiding, abetting, counseling,
commanding, inducing, procuring, or willfully causing the importation of that
quantity of heroin into the United States.
gave them was heroin—which makes it almost certain that the defendants knew it too—and one
of the investigating officers testified that heroin was much more profitable than cocaine in the
United States. But because we conclude that the defendants were appropriately held responsible
under § 1B1.3(a)(1)(A) for the heroin that they trafficked, we need not decide whether
§ 1B1.3(a)(1)(B) also applies.
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B.
Both defendants also contend that the district court clearly erred in finding
that they were organizers or leaders of the drug-trafficking activity, which finding
resulted in a four-level enhancement to their Guidelines offense level. Section
3B1.1 calls for a four-level increase in a defendant’s base offense level if she “was
an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” U.S.S.G. § 3B1.1(a). A three-level enhancement
applies if the defendant was a manager or supervisor, but not an organizer or
leader, under the same circumstances. Id. § 3B1.1(b). To qualify for an
adjustment under § 3B1.1, the defendant “must have been the organizer, leader,
manager or supervisor of one or more other participants.” Id. § 3B1.1, comment.
(n.2). The defendants concede that their criminal activity involved five or more
participants, but they argue that they were, at most, managers or supervisors in the
drug-trafficking organization.
District courts examine whether a defendant was an organizer or leader, as
compared to a manager or supervisor, by considering the following factors: (1) the
exercise of decision-making authority, (2) the nature of the defendant’s
participation in the commission of the offense, (3) the recruitment of accomplices,
(4) the claimed right to a larger share of the fruits of the crime, (5) the degree of
participation in planning or organizing the offense, (6) the nature and scope of the
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illegal activity, and (7) the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4); United States v. Caraballo,
595 F.3d 1214,
1231–32 (11th Cir. 2010). There is no requirement that all of these factors be
present for the enhancement to apply, and there may be more than one leader in the
organization. United States v. Dixon,
901 F.3d 1322, 1348 (11th Cir. 2018).
Substantial evidence supports the district court’s finding that several of these
factors apply here. One of the couriers explained that Desi Caballero Chavez
(Caballero) owned the narcotics, Valenzuela and Castillo obtained couriers to
transport the drugs, and “clients” in New York and Philadelphia bought the drugs.
Evidence obtained from cooperating codefendants, various messaging platforms,
and recorded phone calls showed that while Caballero was involved with funding
the operation and contacted Valenzuela frequently for updates on some of the trips,
Valenzuela and Castillo were generally in charge of the couriers. They exercised
decision-making authority by deciding who to hire and what should be done when
the couriers encountered problems during their trips. Although they smuggled
cocaine to Europe themselves, their participation in the business of transporting
heroin to the United States was as directors—they hired five or more couriers, gave
them detailed instructions, and monitored them closely during their travel. They
recruited several of the couriers themselves, and they offered commissions for
those they hired to recruit others. And the degree of authority they exercised over
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the couriers was essentially complete, at least until they arrived at their
destinations—they told them what to wear, injected them with antinausea
medication so they could swallow heroin pellets or packed the heroin in their
luggage, obtained narcotics or Xanax to keep them calm, took them to the airport,
paid them and gave them money for expenses, required them to check in at every
stage of their travel, directed or approved any changes to their itineraries, and gave
them instructions on how to avoid detection and how to clean and re-swallow or
conceal any heroin pellets that they passed early. On this record, the district court
did not clearly err in finding that Valenzuela and Castillo were leaders or
organizers in the drug-trafficking activity.
C.
The defendants contend that the district court abused its discretion by
admitting evidence at sentencing related to the death of Frederick Henry Bell Mix
IV, a young man whom they apparently intended to use as a courier, but who died
in Guatemala under suspicious circumstances before his planned departure. The
government argued that the defendants were responsible for Mix’s death and that
the calculation of their Guidelines sentencing ranges should include a cross
reference for murder under § 2D1.1(d)(1). In support of this argument, the
government presented documents obtained from Guatemala, including an autopsy
report and a fingerprint comparison report, and hearsay testimony regarding
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statements made by Caballero after his arrest. The district court admitted the
evidence but ultimately determined that it lacked sufficient indicia of reliability
and declined to consider it or to apply the murder cross reference.
In calculating a defendant’s Guidelines sentence, the district court must give
the parties an opportunity to present information and argument relevant to any
disputed factor that is important to the sentencing determination. U.S.S.G.
§ 6A1.3(a). The district court has discretion to consider relevant information at
sentencing—including hearsay evidence—regardless of its admissibility at trial,
“provided that the information has sufficient indicia of reliability to support its
probable accuracy.” Id.; see United States v. Baptiste,
935 F.3d 1304, 1315 (11th
Cir. 2019). To succeed on a challenge to the district court’s admission of hearsay
evidence at sentencing, “a defendant must show (1) that the challenged evidence is
materially false or unreliable and (2) that it actually served as the basis for the
sentence.” United States v. Ghertler,
605 F.3d 1256, 1269 (11th Cir. 2010). We
have held that where “the record reveals no ‘explicit reliance’ on the challenged
evidence” by the sentencing judge, the defendant has not met his burden of
showing that the evidence served as the basis for his sentence. United States v.
Rodriguez,
765 F.2d 1546, 1555 (11th Cir. 1985) (citation omitted).
Here, the defendants have failed to meet their burden of proving that the
district court relied on hearsay evidence related to Mix’s death when determining
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their sentences. They argue that the government’s allegations that they were
involved in Mix’s murder influenced the district court’s sentencing decision to
sentence them in the middle of the applicable Guidelines range instead of at the
lower end, but they have not pointed to any record evidence showing either explicit
or implicit reliance on the challenged evidence. To the contrary, the district court
found that the documents from Guatemala and the hearsay testimony implicating
the defendants in Mix’s death—or at least, in disposing of his body—lacked
sufficient indicia of reliability and explicitly stated that it would not consider that
evidence. We see no reason to doubt either the court’s explicit statements about
the evidence that it considered or the court’s ability to untangle the challenged
hearsay evidence about Mix’s death from other, unchallenged statements about his
involvement as a potential courier in the defendants’ criminal enterprise.
D.
The defendants also argue, for the first time on appeal, that the district court
erred in permitting Mix’s mother to present “victim impact” letters from herself
and one of Mix’s girlfriends and allowing the mother and a friend of the mother to
speak at their sentencing hearing. Mix’s mother and girlfriend urged the court to
hold the defendants responsible for Mix’s death by sentencing them to life in
prison, and Mix’s mother’s friend said that the court should “never let them out” of
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prison because they “trafficked their own children,” presumably referring to
evidence that the defendants’ son was involved in their drug-trafficking operation.
When a defendant fails to object to an alleged error before the district court,
we review the argument on appeal for plain error only. Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. DiFalco,
837 F.3d 1207, 1220 (11th
Cir. 2016). Under this standard of review, the appellant must prove that (1) an
error occurred; (2) the error was plain or obvious; and (3) the error affected the
defendant’s substantial rights, “which in the ordinary case means he must
demonstrate that it ‘affected the outcome of the district court proceedings.’”
Puckett,
556 U.S. at 135 (citation omitted). If these three conditions are satisfied,
we may correct the error if it seriously affected the fairness, integrity, or public
reputation of judicial proceedings.
Id.
The defendants have not met their burden of showing that the speeches and
letters by Mix’s mother and friends influenced the outcome of the sentencing
proceedings. The district court expressed sympathy to Mix’s mother and friends
for their loss, but it explained that it was bound by the evidence and the law and
believed that the sentence it imposed was fair and reasonable under the
circumstances. The court’s statements were consistent with its rulings that the
hearsay evidence of the defendants’ involvement in Mix’s death was unreliable and
would not be considered. The district court did not apply the murder cross
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reference in calculating the defendants’ Guidelines sentencing range, and it gave
no indication that it considered Mix’s death when selecting a sentence within that
range. And although the district court referred to the defendants’ employing their
son in their drug business when explaining its sentencing decision, undisputed
statements in the defendants’ presentence investigation reports and other
unchallenged evidence had already established that the defendants’ son was
involved in their drug-trafficking activities before Mix’s mother’s friend said that
the defendants had “trafficked their own children.” Because the defendants have
not shown that the victim impact statements affected their substantial rights, they
have not met their burden of showing reversible error under the plain-error
standard.
IV.
Last, the defendants argue that their 264-month sentences are substantively
unreasonable. The defendants bear the burden of demonstrating that their
sentences are unreasonable in light of the record, the factors listed in
18 U.S.C.
§ 3553(a), and the substantial deference afforded sentencing courts. United States
v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
A sentencing court must consider the nature and circumstances of the
defendant’s offense and the defendant’s history and characteristics and impose a
sentence that is sufficient, but not greater than necessary, to comply with the
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statutory purposes of sentencing.
18 U.S.C. § 3553(a). Those purposes include the
need to reflect the seriousness of the offense, promote respect for the law, provide
just punishment for the offense, deter criminal conduct, and protect the public from
further crimes by the defendant.
Id. § 3553(a)(2). The court must also consider
the kinds of sentences available, the defendant’s Guidelines sentencing range,
applicable guidelines and policy statements issued by the Sentencing Commission,
the need to avoid unwarranted sentencing disparities among similarly situated
defendants, and any need for restitution. Id. § 3553(a)(3)–(7). A district court may
abuse its discretion in sentencing if it fails to consider one or more relevant factors
that were due significant weight, gives significant weight to an improper or
irrelevant factor, or considers all the appropriate factors but balances them
unreasonably. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en
banc). We will vacate a sentence for substantive unreasonableness 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.” Id.
at 1190 (citation omitted).
The district court here appropriately used the Guidelines sentencing range of
235–293 months’ imprisonment as its “starting point and the initial benchmark”
and considered the parties’ competing arguments—the defendants’ requests for
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below-Guidelines, statutory-minimum sentences of 120 months and the
government’s request for above-Guidelines sentences of 360 months. Gall v.
United States,
552 U.S. 38, 49 (2007). After discussing each of the § 3553(a)
sentencing factors, the court concluded that a mid-range Guidelines sentence was
“sufficient, but not greater than necessary” to serve those objectives. Although a
sentence in the Guidelines range is not entitled to a presumption of reasonableness,
we ordinarily expect that a Guidelines sentence will be reasonable. United States
v. Foster,
878 F.3d 1297, 1309 (11th Cir. 2018). Such is the case here.
Both Valenzuela and Castillo argue that the district court must have given
significant weight to Mix’s death and alleged murder, despite the court’s ruling
that the government had not presented reliable evidence proving that his death was
caused by their conduct. As we have already said, however, we find no reason to
disbelieve the district court’s express statement that it did not consider evidence of
Mix’s death in determining the defendants’ sentences.
Both defendants point out that several of their codefendants received
substantially shorter sentences than theirs, and Castillo presents statistical
information showing that most defendants in drug-related cases are sentenced
below the applicable Guidelines range. Neither comparison is apt. “When we
consider disparity in sentencing, we first ask whether the defendant is similarly
situated to the defendants to whom he compares himself.” United States v.
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Duperval,
777 F.3d 1324, 1338 (11th Cir. 2015). The codefendants here were all
employed by the defendants or by their drug supplier as couriers—their level of
responsibility for the criminal activity charged was much lower than that of the
defendants. The codefendants who were sentenced before Valenzuela and Castillo
also cooperated with the government, and several of them received lower sentences
as a result of their cooperation. Thus, the codefendants were not similarly situated
to Valenzuela and Castillo, and there is no unwarranted disparity between their
sentences and the sentences that Valenzuela and Castillo received. Cf. United
States v. Cavallo,
790 F.3d 1202, 1237 (11th Cir. 2015) (no unwarranted disparity
between the sentence of a defendant who pleaded not guilty and went to trial and
the “substantially lower” sentences of cooperating codefendants). And the
statistical information cited by Castillo simply provides no basis for comparison—
Valenzuela and Castillo cannot be similarly situated to all other drug defendants,
many of whom presumably were convicted of offenses involving less serious
substances or consisting of a single transaction or possession.
Valenzuela argues that the district court gave insufficient weight to her
personal history of childhood abuse, poverty, and family tragedy, and gave undue
weight to evidence that the defendants used minors and drug addicts as couriers
and involved their minor son in their drug business. “The weight given to any
specific § 3553(a) factor is committed to the sound discretion of the district court.”
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United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir. 2016). We can find no
error of judgment in the district court’s consideration of the § 3553(a) factors here.
The district court considered Valenzuela’s history, but it concluded that while her
“incredibly sad” childhood might partly excuse conduct that put only herself at
risk, it could not justify her ongoing participation in a scheme that routinely
endangered others. In short, the 264-month sentences imposed by the district
court, which were both within the defendants’ Guidelines range and well below the
statutory maximum sentence of life in prison, were not substantively unreasonable.
See id. at 1310 (“A sentence imposed well below the statutory maximum penalty is
another indicator of reasonableness.”).
V.
For the foregoing reasons, we conclude that the district court did not abuse
its discretion by sentencing Valenzuela and Castillo to 264 months’ imprisonment,
and we therefore affirm their convictions and sentences.
AFFIRMED.
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