United States v. Gerardo Ortiz , 538 F. App'x 233 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1453
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UNITED STATES OF AMERICA
v.
GERARDO ORTIZ,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-11-cr-00347-007)
District Judge: Hon. William W. Caldwell
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Submitted Pursuant to Third Circuit LAR 34.1(a)
October 11, 2013
BEFORE: FUENTES, COWEN, and BARRY, Circuit Judges
(Filed: October 31, 2013)
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OPINION
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COWEN, Circuit Judge.
Gerardo Ortiz (“Ortiz”) appeals the judgment of sentence imposed by the District
Court. He argues that the sentence should be vacated because the District Court failed to
give proper weight to some of the sentencing factors enumerated in 18 U.S.C. § 3553(a).
We will affirm.1
I.
The grand jury returned a four-count Indictment, charging Ortiz with conspiring to
manufacture, distribute, and possess with intent to manufacture and distribute five
kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. § 846 and
manufacturing, distributing, and possessing with intent to manufacture and distribute five
kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2. Ortiz entered into a plea agreement with the government and agreed to plead
guilty to a violation of 21 U.S.C. § 846.
Prior to sentencing, the United States Probation Office prepared a Pre-Sentence
Report (“PSR”). The PSR assigned Ortiz a Total Offense Level of 17 and a Criminal
History of I, resulting in a guidelines range of 24-30 months’ imprisonment. Both Ortiz
and the Government objected to the PSR, agreeing that Ortiz should be given an
additional two-level reduction by virtue of his minor role in the drug organization. Ortiz
also objected to the determination in the PSR that there were no additional grounds for
departure, arguing that a departure was warranted based on several grounds, including his
mental condition, his physical condition, his military service, and the loss of medical
disability benefits during his time incarcerated.
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
2
At the sentencing hearing, the District Judge sustained the joint objection relating
to Ortiz’s minor role in the drug organization and granted Ortiz a two-level reduction in
his Total Offense Level. The District Judge also appears to have granted a Government
motion for a two-level reduction under U.S.S.G. § 5K1.1. Thus, Ortiz’s Total Offense
Level was 13, and his guidelines range was 12-18 months’ imprisonment.
The District Court sentenced Ortiz to one year and one day of imprisonment,
noting that the sentence accounted for Ortiz’s “military service, his lack of any prior
serious offense, and the fact that he had helped the Government to a significant degree.”
(J.A. 22.)
II.
Ortiz argues that the District Court failed to meaningfully consider the factors
present in 18 U.S.C. § 3553(a) (“Section 3553(a)”).2 Section 3553(a) requires district
courts to consider a variety of factors when determining a sentence.
Appellate review of criminal sentences is limited: we must “ensure that a
substantively reasonable sentence has been imposed in a procedurally fair way.” United
States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008). We review a district court’s
sentencing determinations for reasonableness. United States v. Grier, 475 F.3d 556, 571
(3d Cir. 2007) (en banc). “An estimation of the outer bounds of what is ‘reasonable’
2
Ortiz separately argues that the District Court committed procedural error by
failing to provide an adequate explanation for the sentence imposed. This argument
tracks his argument that the District Court failed to comply with Section 3553(a). We
consider both arguments jointly.
3
under a given set of circumstances may not always be beyond debate, but the abuse-of-
discretion standard by which that estimation must be judged limits the debate and gives
district courts broad latitude in sentencing.” Levinson, 543 F.3d at 195.
We conclude that the District Court did not abuse its discretion, as the record, read
as a whole, shows that the District Court considered the factors enumerated in Section
3553(a). See Grier, 475 F.3d at 571 (“The touchstone of ‘reasonableness’ is whether the
record as a whole reflects rational and meaningful consideration of the factors
enumerated in 18 U.S.C. § 3553(a).”) Ortiz argues that the District Court failed to
properly consider “the nature and circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). But the District Court
considered these factors, concluding that Ortiz’s prior military service and his lack of
prior offenses justified a sentence at the bottom of the sentencing guidelines. Ortiz also
claims that the District Court disregarded other characteristics, such as his age, health,
mental conditions, mental disability, and family conditions. But his counsel did not
discuss these factors at the sentencing hearing, and made, at best, fleeting reference to
them in his objections to the PSR. As such, the Court was not obliged to discuss them
during sentencing. See Gall v. United States, 552 U.S. 38, 53-54 (2007) (While “true that
the District Judge did not make specific reference to” certain Section 3553(a) factors at
sentencing, “it was not incumbent on the District Judge to raise every conceivably
4
relevant issue on his own initiative”).3 Given the circumstances, it was not error for the
District Court to focus primarily on Ortiz’s military history and his lack of prior serious
offenses.
Finally, Ortiz argues that the District Court failed to consider his minor role in the
offense. This argument lacks merit. As noted above, the District Court recognized
Ortiz’s minor role in the drug organization and, in fact, granted Ortiz a two-level
reduction in his Total Offense Level on this ground.4
III.
For the foregoing reasons, we will affirm the judgment of sentence of the District
Court.
3
And, as the Government argues, the District Court did not err by not discussing
Ortiz’s age, medical condition, and mental health because Ortiz: (a) is not advanced in
age; (b) has a medical condition that is under control; and (c) does not believe that he
needs mental health counseling.
4
Ortiz also claims that the District Court did not consider potential sentencing
disparities. See 18 U.S.C. § 3553(a)(6). However, because Ortiz did not raise this
argument below, the District Court was not obligated to address it. See Gall, 552 U.S. at
53-54. Further, as noted by the Government, Ortiz has failed to explain to this Court how
his sentence represents a sentencing disparity among similarly situated defendants.
5