United States v. Gabino Ortiz, Jr.

Case: 12-14318 Date Filed: 08/06/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14318
Non-Argument Calendar
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Docket No. 3:11-cr-00105-RV-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABINO ORTIZ, JR.,
a.k.a. Gabino Ortiz-Valencia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(August 6, 2013)
Before MARCUS, KRAVITCH, and EDMONDSON, Circuit Judges.
Case: 12-14318 Date Filed: 08/06/2013 Page: 2 of 3
PER CURIAM:
Gabino Ortiz, Jr. appeals his total 228-month sentence, imposed after he
pleaded guilty to one count of conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), and 846 (Count 1), one count of possession with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii),
and 18 U.S.C. § 2 (count 2), one count of possession of a firearm by an illegal
alien, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) (Count 3), and one
count of possession or use of a counterfeit resident alien card, in violation of 18
U.S.C. § 1546(a) (Count 4).
The appeal presents this issue:
Whether the district court and the government violated U.S.S.G. § 1B1.8 by
setting Ortiz’s base offense level on the basis of a drug quantity that he and
his codefendant father independently disclosed pursuant to their cooperation
agreements with the government: an issue not raised in the district court by
an objection.
Because the evidence showed that the drug quantity attributed to Ortiz, Jr. was
derived independently from a codefendant (Ortiz, Jr.’s father) and not from
statements Ortiz, Jr. gave as part of his plea and cooperation agreement, the district
court -- to say the least -- did not plainly err in its attribution of drug quantity to
Ortiz, Jr.; U.S.S.G. § 1B1.8 was not violated. For background, see United States
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v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006) (evidence of drug quantity obtained
from independent source: codefendant).
AFFIRMED.
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