United States v. Ismael Corrales-Portillo , 779 F.3d 823 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1769
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ismael Corrales-Portillo
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 14-1816
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose Corrales-Portillo, also known as Abraham Diaz-Rodriguez
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: November 14, 2014
Filed: March 9, 2015
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Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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RILEY, Chief Judge.
A grand jury indicted brothers Jose Corrales-Portillo (Jose) and Ismael
Corrales-Portillo (Ismael) for conspiring to distribute methamphetamine and heroin
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (count one); possessing
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A), and 18 U.S.C. § 2 (count two); and possessing heroin with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2 (count
three). Jose pled guilty to count one, and the district court1 sentenced him to 175
months imprisonment. Ismael proceeded to trial, and a jury convicted him of all three
counts. The district court sentenced Ismael to concurrent sentences of 188 months
imprisonment on each count. Jose appeals his sentence, and Ismael appeals his
conviction and sentence. With appellate jurisdiction under 28 U.S.C. § 1291, we
affirm in each appeal.
I. BACKGROUND
A. Facts
On July 3, 2013, a confidential informant—seeking to avoid drug charges of his
own—agreed to cooperate with an ongoing narcotics investigation by Officer Anthony
Ballantini and Sergeant Kirk Bagby of the Des Moines, Iowa, Police Department
(department). The informant, who had not previously cooperated with the department,
provided detailed information about his supplier, an older Hispanic man he knew as
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
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Compa (later identified as Jose). To assist with the investigation, the informant, in the
presence of the police, made a recorded call and texted Jose to arrange to purchase
three pounds of methamphetamine. The informant told officers Jose obtained the
drugs from Arizona and would transport them from Grand Island, Nebraska, to Des
Moines the following week. This information corroborated what the officers had
learned about the informant’s drug business earlier in their investigation.
On July 13, 2013, the informant advised the police that Jose was in Grand
Island and would deliver the drugs to Des Moines later that day. Contacting the
officers throughout the day, the informant forwarded Jose’s texts and advised the
officers of the time and place he was to meet Jose and where Jose had hidden the
drugs on his vehicle. The informant told the officers he expected Jose to be driving
a vehicle with Arizona or Nebraska license plates because the informant previously
had seen Jose deliver drugs in Grand Island with a blue Ford truck with Nebraska
plates.
Before the meeting, Officer Ballantini instructed the informant to depart from
the gas station where he was to meet Jose by driving south if he learned the drugs
were in Jose’s vehicle and to depart by driving north to a local garage if he was unsure
where the drugs were. Officer Ballantini devised this signal because he suspected
Jose might transport the drugs in a “ghost vehicle” to avoid police detection.2
As Jose neared Des Moines, officers began surveilling the informant’s
residence and the gas station where he was to meet Jose. When the informant left for
the meeting with Jose, Officer Ballantini followed him. Sergeant Cynthia Donahue
was already at the station. Having parked her unmarked car near the gas station,
Sergeant Donahue positioned herself inside the station. Sergeant Ronald Kouski
waited nearby in a marked vehicle with a drug dog to make a traffic stop if necessary.
2
The investigating officers and informant testified drug traffickers frequently
use more than one car when transporting drugs either as a decoy or as a way to
conduct counter-surveillance on the police.
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The informant arrived at the gas station and parked his car. Minutes later, Jose,
an older Hispanic man, arrived in a blue Ford Ranger truck with Nebraska plates and
met with the informant. As they met, Sergeant Donahue observed Ismael pumping
gas into a Lexus with Nebraska plates. Ismael was watching the meeting and making
eye contact with Jose and the informant. Sergeant Donahue deduced Ismael was
providing counter-surveillance for Jose. When Ismael finished pumping gas, he
parked his car and headed toward the building. Sergeant Donahue then lost track of
Ismael as she left the building and returned to her car to keep an eye on the Lexus.
At the meeting, Jose told the informant the drugs were inside the gas tank of the
Ford truck. The informant testified Ismael joined the meeting, and Jose introduced
him as his “partner,” explaining he was “showing [Ismael] the ropes,” “the spots
where people can meet up,” and “the people” so Ismael could see “what the person
looks like” and know “what to do,” enabling Ismael to “take over” Jose’s drug
deliveries. Neither Officer Ballantini nor Sergeant Donahue witnessed Ismael make
contact with the informant—both testified they were repositioning at the relevant time.
The informant told Jose to follow him to a nearby garage to unload the drugs. Jose
returned to his truck and Ismael joined him as a passenger, leaving the Lexus in the
parking lot.
With Jose and Ismael following in the Ford truck, the informant drove south out
of the gas station. As he drove, the informant called Officer Ballantini to tell him the
drugs were in the gas tank of Jose’s truck. When Jose abruptly turned into a
restaurant parking lot—abandoning the informant—Officer Ballantini directed
Sergeant Kouski to stop the truck. Once stopped, Jose and Ismael tried to exit the
vehicle before Sergeant Kouski instructed them to stay put. Sergeant Kouski
suspected Jose and Ismael were trying to distance themselves from contraband.
Jose and Ismael each presented Arizona identification—Jose’s was false and
Ismael’s was valid. They told Sergeant Kouski they were traveling from Kearney,
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Nebraska, to Peoria, Illinois, to find roofing work. Drawing on his own roofing
experience, Sergeant Kouski was skeptical of their story based in part on their lack of
roofing tools. With Jose’s consent, Sergeant Kouski searched the truck and deployed
his drug dog. The dog alerted to the presence of contraband, and Sergeant Kouski
notified the narcotics officers, who arrived to assist with the search.
After removing the bed of the truck, the officers found hidden in the truck’s gas
tank three one-pound bags of methamphetamine and eleven one-pound bags of heroin
with an estimated street value of more than $2 million.3 The officers also seized other
evidence, including the cell phone Jose used to arrange the deal with the informant,
and placed Jose and Ismael under arrest.
The police impounded the Lexus and searched it as well. When his drug dog
alerted to the back seat, Sergeant Kouski removed the seat and located a secret
compartment in the gas tank. Although the compartment was empty, Sergeant Kouski
testified his dog alerted to the odor of narcotics.
B. Procedural History
On August 27, 2013, the government secured a three-count indictment charging
Jose and Ismael with conspiring to distribute controlled substances and possessing
with intent to distribute both methamphetamine and heroin. Before trial, Jose and
Ismael moved to suppress the evidence seized from the truck, arguing the police
lacked reasonable suspicion for the traffic stop because they had not independently
verified the information from their first-time informant. After a November 8, 2013,
suppression hearing, the district court denied the motion, concluding reasonable
suspicion supported the stop.
3
The police reassembled Jose’s truck and sold it at auction. The buyer’s
mechanic found another six one-pound packages of heroin in the gas tank.
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On November 20, 2013, Jose pled guilty to the conspiracy charge in exchange
for the government’s dismissal of the other two counts and its agreement to withhold
filing a notice of sentence enhancement under 21 U.S.C. § 851. The district court
sentenced Jose to 175 months imprisonment, which Jose appeals.
On November 22, 2013, Ismael went to trial. At the close of the government’s
case, Ismael moved for judgment of acquittal, which the district court denied. Over
Ismael’s objection, the district court instructed the jury it could convict Ismael if he
had been deliberately ignorant of the drug crimes. In closing, Ismael argued “he had
no idea what Jose was doing.” The jury convicted Ismael on all three counts.
On March 26, 2014, the district court held a sentencing hearing, at which Ismael
requested a four-level role reduction under United States Sentencing Guidelines
(U.S.S.G. or Guidelines) § 3B1.2(a), asserting he had a minimal role in the drug
conspiracy. Denying the request, the district court sentenced Ismael to 188 months
in prison—the bottom of his advisory Guidelines range. Ismael appeals his conviction
and sentence.
II. DISCUSSION
A. Ismael’s Motion to Suppress4
Ismael contends the district court erred in denying his motion to suppress the
evidence obtained as a result of the warrantless search of Jose’s truck. In Ismael’s
view, the officers lacked reasonable suspicion for the stop because the informant had
no prior track record at the department and the officers failed to corroborate
independently the information he provided.
4
Although Ismael and Jose both raised this issue in the district court, only
Ismael challenges the district court’s denial of his motion.
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“We review the denial of a motion to suppress de novo but the underlying
factual determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012).
“‘We affirm . . . unless the district court’s decision is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or, based on the
entire record, it is clear a mistake was made.’” United States v. Wallace, 713 F.3d
422, 426 (8th Cir. 2013) (quoting United States v. Bay, 662 F.3d 1033, 1035 (8th Cir.
2011)).
“A traffic stop constitutes a ‘seizure’ within the meaning of the Fourth
Amendment, see Delaware v. Prouse, 440 U.S. 648, 653 (1979), and therefore must
be reasonable to survive constitutional scrutiny.” United States v. Martinez, 358 F.3d
1005, 1009 (8th Cir. 2004). “[T]he Fourth Amendment is satisfied if the [stop] is
supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow,
490 U.S. 1, 7 (1989)). “The ‘reasonable suspicion’ necessary to justify such a stop ‘is
dependent upon both the content of information possessed by police and its degree of
reliability.’” Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1687 (2014)
(quoting Alabama v. White, 496 U.S. 325, 330 (1990)). In evaluating reasonable
suspicion, we “must look at the ‘totality of the circumstances’ of each case to see
whether the detaining officer has a ‘particularized and objective basis’ for suspecting
legal wrongdoing.” Arvizu, 534 U.S. at 273 (quoting United States v. Cortez, 449
U.S. 411, 417 (1981)).
“A confidential informant’s tip may support a reasonable suspicion if it has
sufficient indicia of reliability, such as the informant’s track record as a reliable source
or independent corroboration of the tip.” United States v. Manes, 603 F.3d 451, 456
(8th Cir. 2010) (internal citation omitted); accord United States v. Winarske, 715 F.3d
1063, 1067 (8th Cir. 2013) (“[I]f an informant is otherwise unknown to police and has
no proven track record of reliability, police may deem an informant credible and make
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a finding of probable cause when an informant’s information is at least partly
corroborated.”). “An informant may also prove himself to be a reliable source for law
enforcement by providing predictive information about a meeting time or place.”
Winarske, 715 F.3d at 1067. The reliability of an informant’s information “is
bolstered if the tip is corroborated not only by matching an identity or description, but
also by accurately describing a suspect’s future behavior.” Manes, 603 F.3d at 456.
In this case, the totality of the circumstances sufficiently established the
informant’s reliability and provided reasonable suspicion for the stop. As part of his
ongoing investigation, which included electronic monitoring, Officer Ballantini
suspected the informant was obtaining drugs from Grand Island for sale in Des
Moines. When a search of the informant’s home revealed drugs, the
informant—trying to provide useful information to save his own skin—quickly agreed
to cooperate with the police and help them catch his supplier. Confirming what the
police already suspected about his drug activity based on their prior investigation, the
informant described his supplier and the blue truck he drove to their first meeting in
Grand Island. With officers present, the informant contacted his supplier and arranged
for delivery of three pounds of methamphetamine to Des Moines. On the day the
drugs arrived, the informant frequently updated the police with details about the
meeting, including the time, location, and method of the exchange. The informant
even forwarded Jose’s texts and instructions directly to the police.
Visually monitoring the informant’s meeting at the time and location the
informant had said it would take place, the police quickly confirmed the informant’s
description of both his supplier and the blue truck with Nebraska plates the informant
predicted his supplier would drive. As the meeting ended and the exchange was about
to take place at a different location, the informant signaled the police according to
Officer Ballantini’s plan—driving south from the gas station to let Officer Ballantini
know the drugs were in the truck. As the informant drove south with Jose behind him,
the informant called Officer Ballantini to tell him Jose had hidden the drugs in the gas
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tank. When Sergeant Kouski began following the blue truck, Jose and Ismael reacted
suspiciously, see, e.g., Arvizu, 534 U.S. at 275-76, abandoning the informant, turning
abruptly into a restaurant parking lot, and trying to distance themselves from the truck.
By the time Sergeant Kouski made the stop, the officers were well aware of the
basis for the informant’s knowledge and had corroborated the vast majority of what
he had told them. The officers had more than enough reliable information to establish
a “‘particularized and objective basis’ for suspecting legal wrongdoing,” Arvizu, 534
U.S. at 273 (quoting Cortez, 449 U.S. at 417), before stopping Jose’s truck. See, e.g.,
United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995) (affirming probable cause
for arrest based on a first-time informant’s “accurate and detailed information about”
a drug delivery arranged in the officers’ presence where the informant’s predictions
about the time and place of the delivery and his description of his supplier and his
vehicle “were corroborated by the independent observations of police officers”). The
district court did not err by denying Ismael’s motion to suppress.
B. Deliberate Ignorance
Ismael next argues the evidence did not support giving a deliberate ignorance
instruction. “We review a district court’s decision to include a jury instruction for
abuse of discretion.” United States v. Galimah, 758 F.3d 928, 930 (8th Cir. 2014).
“We look to whether there was sufficient evidence to justify the instruction, reviewing
‘the evidence and any reasonable inference from that evidence in the light most
favorable to the government.’” United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.
2008) (quoting United States v. Hiland, 909 F.2d 1114, 1131 (8th Cir. 1990)).
“A deliberate ignorance instruction is appropriate when the evidence is
sufficient to support a jury’s conclusion that ‘the defendants had either actual
knowledge of the illegal activity or deliberately failed to inquire about it before taking
action to support the activity.’” United States v. Hernandez-Mendoza, 600 F.3d 971,
979 (8th Cir. 2010) (quoting Whitehill, 532 F.3d at 751). “Ignorance is deliberate if
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[a defendant was] presented with facts putting [him] on notice criminal activity was
particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at
751. “While a district court should not give the deliberate-ignorance instruction when
the evidence points solely to the defendant’s actual knowledge of the facts in question,
the ‘instruction is particularly appropriate when the defendant denies any knowledge
of a criminal scheme despite strong evidence to the contrary.’” United States v.
Woodard, 315 F.3d 1000, 1004 (8th Cir. 2003) (quoting United States v. Regan, 940
F.2d 1134, 1136 (8th Cir. 1991)).
The evidence in this case justified the instruction. Over the course of the trial,
the government presented strong evidence Ismael was aware of the illegal drugs in
Jose’s truck and was actively working with Jose, his “partner,” to deliver them from
Arizona to Des Moines by way of Grand Island. In its closing argument, the
government emphasized that the testimony of the investigating officers and the
informant established Ismael drove a ghost vehicle registered under his brother’s false
name, conducted counter-surveillance at the gas station, joined the meeting between
Jose and the informant, was trying to “learn the ropes” of Jose’s drug trade,
unquestioningly got into Jose’s truck to travel to a different location to help remove
the drugs from the gas tank, and gave a common fabricated cover story when stopped
by the police.
In his own closing argument, Ismael maintained there was “no evidence” Ismael
knew the drugs were hidden in the gas tank and asked the jury to “believe he had no
idea what Jose was doing.” The district court did not abuse its discretion in giving the
deliberate ignorance instruction. See id.
C. Ismael’s Motion for Judgment of Acquittal
Ismael argues the district court erred in denying his motion for judgment of
acquittal on all three counts. See Fed. R. Crim. P. 29(a). According to Ismael, the
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evidence was strong that Jose was guilty of the crimes charged, but the evidence “was
utterly and totally lacking that [Ismael] too participated in the criminal activity.”
“We review de novo a district court’s denial of a motion for judgment of
acquittal, viewing the evidence in the light most favorable to the verdict and drawing
all reasonable inferences in its favor.” United States v. Vore, 743 F.3d 1175, 1180
(8th Cir. 2014). “We will not lightly overturn the jury’s verdict and will reverse only
if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” United States v. No Neck, 472 F.3d 1048, 1052 (8th Cir. 2007).
1. Conspiracy
To convict Ismael of conspiracy as charged in count one, “the Government had
to prove beyond a reasonable doubt (1) that there was a conspiracy (an agreement to
possess with intent to distribute the drugs); (2) that [Ismael] knew of the conspiracy;
and (3) that [Ismael] intentionally joined the conspiracy.” United States v. Shaw, 751
F.3d 918, 920 (8th Cir. 2014). The government maintains it met its burden with direct
and circumstantial evidence of Ismael’s active involvement in the conspiracy to
distribute drugs with Jose. See, e.g., United States v. Ojeda, 23 F.3d 1473, 1476 (8th
Cir. 1994) (“Because a jury rarely has direct evidence of a defendant’s knowledge, it
is generally established through circumstantial evidence.”). The government
highlights the informant’s testimony that Jose introduced Ismael as his “partner,” and
explained he was “just showing [Ismael] the ropes” so Ismael could take over
delivering drugs to Des Moines.
In response, Ismael asserts the informant “was the only testifying witness that
had anything other than a hunch to offer that [Ismael] was involved in anything and
his testimony was sketchy at best.” In Ismael’s view, the informant’s testimony “was
not supported by any of the testifying officers.”
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But Ismael raised that argument at trial, and the jury reasonably rejected it. See
United States v. Listman, 636 F.3d 425, 430 (8th Cir. 2011) (concluding “it was the
jury’s prerogative to believe” a co-conspirator who testified the defendant knew he
was transporting drugs because “‘[t]he jury is the final arbiter of the witnesses’
credibility, and we will not disturb that assessment’” (quoting United States v. Hayes,
391 F.3d 958, 961 (8th Cir. 2004))). To the extent there were any “conflicts or
contradictions in [the] testimony,” the jury is responsible for resolving them, “and we
resolve any credibility issues in favor of the verdict.” United States v. Ali, 616 F.3d
745, 755 (8th Cir. 2010). The government adduced sufficient evidence to permit a
reasonable jury to find Ismael intentionally conspired to distribute illegal drugs.
2. Possession with Intent to Distribute
To prove possession of methamphetamine and heroin with intent to distribute
as charged in counts two and three, respectively, “the Government had to prove
beyond a reasonable doubt that [Ismael] knowingly possessed the methamphetamine
[and heroin] in the truck with the intent to distribute it.” Vore, 743 F.3d at 1180; see
also 21 U.S.C. § 841(a)(1), (b)(1)(A). “‘Possession can be actual or constructive.
Actual possession is the knowing, direct, and physical control over a thing.’” United
States v. Brown, 634 F.3d 435, 439 (8th Cir. 2011) (quoting United States v. Serrano-
Lopez, 366 F.3d 628, 634 (8th Cir. 2004)). “Constructive possession is defined as
knowledge of [the] presence of the contraband plus control over the contraband.”
United States v. Wright, 739 F.3d 1160, 1168 (8th Cir. 2014).
Ismael contends “evidence that [he] possessed either the methamphetamine or
the heroin is equally lacking” given the absence of direct incriminating evidence like
finger prints or “statements of ownership.” Relying on United States v. Pace, 922
F.2d 451 (8th Cir.1990), Ismael argues his “proximity to contraband” and his “mere
presence at the scene of concealed illegal activity is not enough” to convict.
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Ismael’s arguments simply run out of gas. In Pace, we concluded the
government failed to adduce sufficient evidence that the defendant driver of a vehicle
knowingly possessed the illegal drugs concealed in his passenger’s bags in the back
of the car. See id. at 452-53. At trial, the driver and passenger both testified the
driver was unaware of the hidden drugs. See id. Noting there was no evidence the
driver opened the passenger’s bags or knew of the “criminal nature of the trip,” we
determined “it [was] merely conjecture to conclude [the driver] knew what those
packages contained.” Id. at 453.
Unlike Pace, “this is not a case in which the government could not prove, even
by inference, that the defendant was anything more than present in the vehicle or
physically proximate to the contraband.” United States v. Johnson, 18 F.3d 641, 648
(8th Cir. 1994). Ismael again ignores the informant’s testimony and the other strong
evidence that Ismael knowingly and actively worked with his “partner” Jose to
conceal, transport, and deliver the drugs hidden in the truck’s gas tank. See United
States v. Patterson, 886 F.2d 217, 219 (8th Cir. 1989) (per curiam) (“Constructive
possession need not be proved by direct evidence, but rather may be premised upon
circumstantial evidence, which we recognize as being ‘intrinsically as probative as
direct evidence.’” (quoting United States v. Holm, 836 F.2d 1119, 1122 (8th Cir.
1988))).
Ismael unsurprisingly points his finger at his brother Jose, claiming Ismael was
just innocently and ignorantly along for the ride. But “[p]ossession may be joint; it
need not be exclusive.” United States v. Smart, 501 F.3d 862, 865 (8th Cir. 2007).
And the evidence supporting Ismael’s convictions “need not exclude every reasonable
hypothesis of innocence, but simply be sufficient to convince the jury beyond a
reasonable doubt that the defendant is guilty.” United States v. McGuire, 45 F.3d
1177, 1186 (8th Cir. 1995); see also United States v. Burks, 934 F.2d 148, 151 (8th
Cir. 1991) (“If the evidence rationally supports two conflicting hypotheses, the
reviewing court will not disturb the conviction.”). Based on the record evidence, a
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reasonable jury could find Ismael and Jose jointly possessed the drugs with intent to
distribute. The district court did not err in denying Ismael’s motion for judgment of
acquittal.
D. Ismael’s Sentence
Ismael finally contends the district court erred in denying his request for a four-
level sentence reduction under U.S.S.G. § 3B1.2(a), which provides a four-level
reduction in the offense level “[i]f the defendant was a minimal participant in any
criminal activity.” According to Ismael, he was entitled to a reduction because “his
conduct was less culpable than” Jose’s and the balance of the evidence, in his view,
suggested Ismael “was only along to assist Jose in his operation.”
In denying Ismael a sentence reduction, the district court found the “degree of
sophistication involved in this offense,” the large quantity of drugs recovered, and
“the elaborate nature in which the drugs were hidden and protected” indicated “both
defendants [Jose and Ismael] were deeply involved” in criminal activity. We detect
no clear error in the district court’s findings regarding Ismael’s substantial role in his
crimes and conclude the district court properly denied Ismael’s request for a sentence
reduction. See United States v. Martinez, 168 F.3d 1043, 1048 (8th Cir. 1999)
(standard of review).
E. Jose’s Sentence
After Jose pled guilty to count one, the district court held a sentencing hearing.
Adopting the factual findings in Jose’s presentence investigation report without
objection from either party, the district court calculated Jose’s advisory Guidelines
range to be 151 to 188 months imprisonment (level 33, category II).5 The district
court rejected Jose’s request for a mandatory minimum sentence of 120 months and
5
Jose’s range reflects a two-level reduction based on the parties’ stipulation
regarding a proposed amendment to the Guidelines.
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sentenced Jose to 175 months—near the middle of the range. On the government’s
motion, the district court dismissed the remaining charges.
On appeal, Jose contends the district court committed multiple procedural errors
and imposed an unreasonable sentence driven in part by prejudice. In particular, Jose
complains the district court (1) failed to correct the government’s alleged
misstatement that he “had been involved in a sophisticated drug operation for twenty
years”; (2) referred to his “uncounted ancient criminal history”; (3) decided Jose’s
financial hardships did not justify the harm Jose’s activities caused the United States;
(4) considered the 240-month mandatory sentence Jose would have faced if the
government had filed notice under 21 U.S.C. § 851; and (5) said the court would “look
forward to reducing” Jose’s sentence if he cooperated with the government and gave
a truthful proffer. In Jose’s view, it was unreasonable for the district court to consider
and discuss these factors.
Jose did not raise any of the alleged procedural errors at sentencing, so we
review for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)
(en banc) (“Errors not properly preserved are reviewed only for plain error under Rule
52(b) of the Federal Rules of Criminal Procedure.”). Absent significant procedural
error, we review the substantive reasonableness of the sentence imposed for abuse of
discretion. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc).
Our review of the sentencing record reveals Jose’s arguments are without merit
and his confused accusation of prejudice utterly unfounded. Most of Jose’s misguided
complaints relate to the district court’s thorough consideration of the 18 U.S.C.
§ 3553(a) factors. In essence, Jose argues it was unreasonable for the district court to
consider the § 3553(a) sentencing factors and explain his sentence as required by law.
The argument obviously fails.
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Jose’s cursory reliance on United States v. Stokes, 750 F.3d 767, 772 (8th Cir.
2014), also fails. In Stokes, we concluded the sentencing judge plainly erred by
(1) assuming the defendant had sold drugs for ten years despite a lack of record
support, and (2) using that fact as “a principal basis for denying” a downward
variance. Id. Unlike Stokes, there is nothing in the record here to indicate the district
court concluded Jose sold drugs for twenty years, much less that any such fact was a
principal basis for imposing Jose’s within-Guidelines sentence.
Contrary to Jose’s unsupported assertion, the district court need not “disavow”
purportedly “erroneous statements” made by the government or otherwise separately
address every argument made at sentencing. See, e.g., United States v. Black, 670
F.3d 877, 882 (8th Cir. 2012). The district court did not plainly err in calculating
Jose’s sentence, and Jose abjectly “fails to overcome” the presumption of
reasonableness we afford his within-Guidelines sentence. United States v. Wanna,
744 F.3d 584, 589 (8th Cir. 2014).
III. CONCLUSION
We affirm both Jose’s sentence and Ismael’s conviction and sentence.
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