USCA11 Case: 22-14122 Document: 33-1 Date Filed: 11/13/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14122
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE CUEVAS MOLINA,
a.k.a. Noe Cuevas,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00379-SCB-AEP-1
____________________
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2 Opinion of the Court 22-14122
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Noe Cuevas Molina appeals his total sentence of 168
months’ imprisonment—a downward variance from the guideline
range of 210 to 262 months. The only issue before this Court is
whether the sentence is substantively unreasonable. Because we
find that Cuevas Molina’s sentence is substantively reasonable, we
affirm.
I.
Cuevas Molina and five co-defendants were charged in a su-
perseding indictment with conspiracy to distribute and to possess
with intent to distribute five kilograms or more of cocaine while
aboard a vessel subject to the jurisdiction of the United States
(Count 1), and possession with intent to distribute five kilograms
or more of cocaine while aboard a vessel subject to the jurisdiction
of the United States (Count 2). Cuevas Molina, alone, was also
charged with failure to obey a lawful order by a law enforcement
officer (Count 3). He pled guilty to all three charges without a plea
agreement.
Before sentencing, a probation officer prepared a presen-
tence investigation report (“PSI”), which reported the following
facts. On November 18, 2021, law enforcement officers patrolling
the eastern Pacific Ocean spotted a “go-fast vessel” about 250 miles
south of Salina Cruz, Mexico. A United States Coast Guard board-
ing team pursued the go-fast vessel, which appeared to be dead in
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22-14122 Opinion of the Court 3
the water. As the Coast Guard cutter approached, however, the
occupants of the go-fast vessel revved their engines and sped away.
The Coast Guard ordered the vessel to stop, but the master—later
identified as Cuevas Molina—shook his head “no” and refused. At
some point during the twenty-minute pursuit that followed, Cue-
vas Molina made a satellite phone call. One of the boarding-team
officers tried to stop the go-fact vessel by pulling the kill switch with
an aluminum boat hook, but one of the drug traffickers grabbed
the hook away, broke it, and struck the officer’s hand and head
with it. Finally, the go-fast vessel slowed down enough that the
boarding team was able to assume control.
Upon the Coast Guard’s boarding, Cuevas Molina identified
himself as the master of the vessel and claimed Mexican nationality
for both himself and the vessel. Mexico, upon request from the
United States, was unable to confirm or deny the nationality of the
vessel, so the Coast Guard treated it as a stateless vessel subject to
the jurisdiction of the United States. Cuevas Molina confessed that
the purpose of their sea voyage was to transport cocaine. Indeed,
during a search of the go-fast vessel, the Coast Guard boarding
team found several fuel barrels and kilo-sized packages of cocaine,
totaling approximately 1,294 kilograms.
When asked about his participation, Cuevas Molina told the
probation officer that he committed his crimes because he wanted
to buy his children a computer to use for their schoolwork, but he
also insisted he was expecting to participate in a “rescue mission”
and that he was “forced to participate.”
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The PSI grouped the three counts and calculated a base of-
fense level of 38 pursuant to U.S.S.G. § 2D1.1(c)(1), which sets the
base level for offenses involving at least 450 kilograms of cocaine.
The PSI then applied a two-point enhancement because Cuevas
Molina was the master of the vessel. The PSI did not recommend
a two-point safety-valve reduction because Cuevas Molina had
failed to complete a truthful debrief with the government, as re-
quired under U.S.S.G. § 5C1.2. Cuevas Molina’s adjusted offense
subtotal was therefore 40. The PSI then recommended that Cue-
vas Molina be credited all three acceptance-of-responsibility points,
bringing his total offense level down to 37.
Based on an offense level of 37 and a criminal history cate-
gory of I, Cuevas Molina’s guideline range was 210 to 262 months
imprisonment. The statutory maximum sentence was life. As fac-
tors potentially warranting a downward variance, the PSI identified
Cuevas Molina’s childhood poverty and his lack of education.
Neither Cuevas Molina nor the government lodged any objections
to the PSI.
Cuevas Molina filed a sentencing memorandum and motion
for downward departure in which he conceded that he was the
master of the vessel but nevertheless insisted he was just a “small
pawn in the world of international trafficking of cocaine.” He also
argued that principles of parity suggested a significantly lower sen-
tence because his co-conspirators had been sentenced to 96 and 108
months. Finally, Cuevas Molina argued that a guideline sentence
was greater than necessary to satisfy the purposes of 18 U.S.C. §
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22-14122 Opinion of the Court 5
3553(a). Cuevas Molina ultimately urged the district court to sen-
tence him to the lowest statutorily permitted sentence, 120
months.
At sentencing, the district court confirmed that it had read
the PSI, that the guideline range was 210 to 262 months imprison-
ment, and that there were no unresolved objections to either the
application of the guidelines or the facts reported in the PSI. The
district court also recounted its sentencing of the co-conspirators,
recalling that four of them had been sentenced to 108 months and
one had been sentenced to 97 months. As to those sentences, the
district court explained that two of the co-conspirators had benefit-
ted from U.S.S.G. § 5K1.1 motions and that the others received
downward variances of at least two levels.
Cuevas Molina reiterated to the district court that he ac-
cepted responsibility, admitted that he was the master of the vessel,
and had attempted to debrief with the government but was too
fearful of the drug cartel to provide full and truthful information.
Cuevas Molina, however, then suggested to the district court that
one of his co-conspirators was actually the master. Cuevas Molina
again asked for the statutory minimum sentence of 120 months,
arguing that ten years would be sufficient, but no more than nec-
essary, to punish him and to deter others.
The government, in response, urged the district court not to
vary down any more than the two levels it had given to some of
the co-conspirators. That two-level variance, the government sug-
gested, could result in a 168-month sentence, which, while
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6 Opinion of the Court 22-14122
significantly higher than the co-conspirators’ sentences, appropri-
ately reflected Cuevas Molina’s role as master of the vessel and his
failure to provide an honest and complete debrief. Moreover, the
government argued that it was appropriate for Cuevas Molina to
be sentenced more harshly because he alone was found guilty of
failing to heed the Coast Guard officers’ instruction to stop, setting
off the high-speed chase at sea.
The district court sentenced Cuevas Molina to 168 months’
imprisonment for Counts 1 and 2 and 60 months’ imprisonment
for Count 3, all to be served concurrently, followed by 5 years of
supervised release. In pronouncing the sentence, the district court
specifically noted that it had considered the advisory guidelines, the
parties’ arguments, and
18 U.S.C. §§ 3551 and 3553. In varying
down two levels, the district court explained that it did so both to
prevent any disparity in sentencing and in light of Cuevas Molina’s
poverty, his desire to support his children, and his lack of educa-
tion. After explaining the variance, the district court noted that it
found that this sentence was “sufficient, but not greater than nec-
essary.” Before concluding the hearing, the district court asked
Cuevas Molina if he was satisfied with his lawyer’s representation,
and he affirmed, “Yes, Your Honor. Of course.”
This timely appeal ensued.
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II.
When reviewing for substantive reasonableness, we con-
sider the totality of the circumstances under a deferential
abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 41,
51 (2007). The party challenging the sentence bears the burden of
establishing that the sentence is unreasonable in light of the record
and the factors found in
18 U.S.C. § 3553(a). United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
The district court abuses its discretion when it “(1) fails to
afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir.
2010) (en banc) (quoting United States v. Campa,
459 F.3d 1121, 1174
(11th Cir. 2006) (en banc)). “[A] district court commits a clear error
of judgment when it considers the proper factors but balances them
unreasonably.”
Id. However, the district court does not have to
give all the factors equal weight and is given discretion to attach
great weight to one factor over another. United States v. Rosales-
Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015). The weight given to
any § 3553(a) factor is left to the sound discretion of the district
court, and we will not substitute our own judgment by reweighing
the § 3553(a) factors. United States v. Kuhlman,
711 F.3d 1321, 1327
(11th Cir. 2013). While we do not apply a presumption of reason-
ableness to sentences within the guideline range, we ordinarily ex-
pect such a sentence to be reasonable. United States v. Stanley,
739
F.3d 633, 656 (11th Cir. 2014). Thus, a sentence imposed well
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8 Opinion of the Court 22-14122
below the guideline range is likewise an indicator of reasonable-
ness.
Id. A sentence that is well below the statutory maximum for
the crime is also an indicator of a reasonable sentence. United States
v. Dougherty,
754 F.3d 1353, 1364 (11th Cir. 2014).
Section 3553(a) requires that the district court “shall impose
a sentence sufficient, but not greater than necessary” to: (A) reflect
the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense; (B) afford adequate deter-
rence to criminal conduct; (C) protect the public from further
crimes of the defendant; and (D) provide the defendant with
needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.
§ 3553(a)(2)(A)–(D). Additionally, the court must consider: (1) the
nature and circumstances of the offense and the history and char-
acteristics of the defendant; (3) the kinds of sentences available;
(4) the guideline sentencing range; (5) any pertinent policy state-
ments; (6) the need to avoid unwarranted sentencing disparities
among defendants with similar records who have been convicted
of similar conduct; and (7) the need to provide restitution to any
victims. Id. § 3553(a)(1), (3)–(7).
“A sentencing court’s findings of fact may be based on un-
disputed statements in the PSI.” United States v. Bennett,
472 F.3d
825, 832 (11th Cir. 2006). A failure to object to allegations of fact
in a PSI admits those facts for sentencing purposes.
Id.
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22-14122 Opinion of the Court 9
III.
Cuevas Molina argues that his sentence is substantively un-
reasonable because it is “unreasonably punitive given the applica-
ble
18 U.S.C. § 3553(a) factors, most notably the need to avoid un-
warranted disparities in sentences among similarly situated defend-
ants.” We disagree.
We note, as a general matter, “that the district courts have
institutional advantages in applying and weighing § 3553(a)’s fac-
tors in individual cases.” United States v. McQueen,
727 F.3d 1144,
1156 (11th Cir. 2013). In light of that discretion, “it is only the rare
sentence that will be substantively unreasonable.”
Id.
When considering a claim of unwarranted disparity, we first
consider whether the defendant is similarly situated to the defend-
ants to whom he compares himself. United States v. Duperval,
777
F.3d 1324, 1338 (11th Cir. 2015). Section 3553(a)(6) counsels that
district courts should “avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct,” but Cuevas Molina is not similarly situ-
ated to his co-defendants. Cuevas Molina identifies two key details
that set him apart from his co-conspirators: the facts that he “was
purportedly in charge of the vessel at issue [and] did not provide
substantial assistance or fully debrief.” Cuevas Molina downplays
those two distinctions, describing his leadership role as “largely
nominal” and justifying his failure to truthfully debrief based on
fear of reprisal. We are not persuaded. The district court correctly
determined that Cuevas Molina’s conduct—and, as a result, his
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10 Opinion of the Court 22-14122
culpability—differed from that of his co-conspirators in a way that
warranted a harsher sentence. See, e.g., United States v. Cabezas-
Montano,
949 F.3d 567, 612 (11th Cir. 2020) (holding that a captain
of a vessel containing drugs and a drug smuggler were not similarly
situated and warranted disparate sentences); United States v. Berg-
man,
852 F.3d 1046, 1071 (11th Cir. 2017) (holding that criminal de-
fendant who was more involved in a Medicare fraud scheme was
more culpable than his co-defendant); United States v. Moran,
778
F.3d 942, 983 (11th Cir. 2015) (same); see also United States v. McNair,
605 F.3d 1152, 1231–32 (11th Cir. 2010) (explaining the differences
between two co-defendants that warranted disparate sentences).
But even if Cuevas Molina had demonstrated a sentencing
disparity, we conclude that he has failed to show that any such dis-
parity would outweigh the remaining § 3553(a) factors, all of which
the district court considered before imposing sentence. Finally,
Cuevas Molina’s 168-month sentence is far lower than either the
statutory-maximum life sentence or his guideline range of 210 to
262 months. Both comparisons further indicate that the sentence
is reasonable. See Stanley,
739 F.3d at 656; Dougherty,
754 F.3d at
1364.
For these reasons, we affirm Cuevas Molina’s sentence.
AFFIRMED.
