United States v. Tauri Benjamin Rivas Nunez

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12512
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAURI BENJAMIN RIVAS NUNEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00002-PGB-EJK-2
____________________
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2 Opinion of the Court 21-12512
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Tauri Benjamin Rivas Nunez appeals his conviction and
135-month prison sentence for aiding and abetting Hobbs Act rob-
bery and aiding and abetting the possession of a firearm in further-
ance of a crime of violence. The charges stem from the robbery of
a T-Mobile store. On appeal, Rivas Nunez argues that the district
court abused its discretion by admitting as evidence WhatsApp 1
messages discussing his involvement in the armed robbery of an
AT&T store several days before the charged offense. He also con-
tends that there was insufficient evidence for a reasonable jury to
conclude that he knew one of his codefendants was armed. Finally,
he argues that his sentence is substantively unreasonable. After
careful review, we affirm in all respects.
I. Background
A. The Indictment and Codefendants’ Guilty Pleas
A federal grand jury indicted Rivas Nunez on two counts.
Count One charged that Rivas Nunez, along with codefendants
Victor Hugo Castillo Vallejo, Cristian Manuel Rodriguez Nunez,
1 WhatsApp is an American company that provides messaging, Internet call-
ing, and other services through a smartphone application. Information for
Law Enforcement Authorities, WHATSAPP,
https://faq.whatsapp.com/en/general/26000050/?category=5245250 (last
visited May 11, 2022).
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21-12512 Opinion of the Court 3
and Luis Miguel Valdez Mendez, aided and abetted the armed rob-
bery of a T-Mobile store in Oviedo, Florida, on August 10, 2019, in
violation of 18 U.S.C. §§ 1951(a) and (b) and 2. Count Two charged
that Rivas Nunez, Castillo Vallejo, and Rodriguez Nunez aided and
abetted one another in possessing a firearm in furtherance of that
robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Castillo
Vallejo and Valdez Mendez pleaded guilty pursuant to written plea
agreements. They received total sentences of 90 months and 60
months, respectively.
B. Motion in Limine
Before Rivas Nunez’s case proceeded to trial, he filed a mo-
tion in limine to exclude from evidence various statements and
WhatsApp messages about his alleged involvement in the robbery
of an AT&T store in Orlando on August 6, 2019—four days before
the T-Mobile robbery in Oviedo. As to the statements, Castillo
Vallejo told law enforcement that Rivas Nunez conducted surveil-
lance on the AT&T store before that robbery, but that Rivas Nunez
did not enter the store during the robbery because he knew an em-
ployee there. As to the WhatsApp messages, Rodriguez Nunez
messaged Castillo Vallejo on August 6, saying that they should rob
a local AT&T store using guns and that he and Rivas Nunez would
tie up the employee. Rodriguez Nunez suggested that Rivas
Nunez could wear a mask so that the employee, who was his sis-
ter-in-law, would not recognize him. The same day, Castillo Val-
lejo reported that Rivas Nunez was unable to help them. But later
that afternoon, Castillo Vallejo sent Rodriguez Nunez a message
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4 Opinion of the Court 21-12512
saying that Rivas Nunez was on his way to pick up Rodriguez
Nunez. At 2:31 p.m., Rodriguez Nunez sent a message saying that
he was waiting for Rivas Nunez. At 4:43 p.m., the AT&T store
called 911 to report a robbery. At 6:20 p.m. and 6:41 p.m., Castillo
Vallejo and Rodriguez Nunez exchanged messages listing abbrevi-
ations for items taken in the robbery.
The next day, August 7, Castillo Vallejo and Rodriguez
Nunez discussed that Rivas Nunez had attempted to call them. Ri-
vas Nunez wanted to do surveillance on another cell phone store.
Castillo Vallejo said that Rivas Nunez had made easy money as the
getaway driver for the AT&T robbery, and that the men should
make him go inside the store for the next robbery.
The district court denied Rivas Nunez’s motion to exclude
the evidence. The court found that the statements and WhatsApp
messages were not barred as hearsay because they were made dur-
ing and in furtherance of a conspiracy, which is an exclusion to the
ban on hearsay. See Fed. R. Evid. 801(d)(2)(E). And although ev-
idence of a prior crime or wrong is not admissible to prove a per-
son’s propensity for wrongdoing, Fed. R. Evid. 404(b), the court
held that the WhatsApp messages were admissible as non-propen-
sity evidence of Rivas Nunez’s identity, as well as motive, oppor-
tunity, preparation, planning, and a pattern of criminal activity.
The court noted that the AT&T and T-Mobile robberies were “per-
petrated in strikingly similar ways,” and that the messages were rel-
evant to proving Rivas Nunez’s identity since he was masked dur-
ing the T-Mobile robbery. The court added that the messages were
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also admissible because evidence of the AT&T robbery was inex-
tricably intertwined with evidence of the charged offense.
C. Trial and Post-Trial Motions
Trial began on May 10, 2021. From the outset, Rivas Nunez
conceded his guilt as to count one of robbery, but disputed count
two on the basis that he did not know that any of his codefendants
were armed.
The government, in its case in chief, called as witnesses the
employees who were working at the T-Mobile store when it was
robbed on August 10. One employee, Joshua Lopez, testified that
he saw three men enter the store, each with his face covered. One
of them—alleged to be Rivas Nunez—grabbed Lopez and put him
in a chokehold while another—alleged to be Rodriguez Nunez—
took Lopez’s co-worker to the back of the store. Lopez had diffi-
culty breathing and asked his assailant to loosen his grip. The man
loosened his grip briefly to open the cash register, but then re-
sumed a tight chokehold while waiting for his partner to finish in
the back room. After the men took electronic devices and money,
they left through the front door.
A key government witness the next day was Castillo Vallejo.
He testified that Rodriguez Nunez had planned the AT&T robbery
and had spoken about it with Castillo Vallejo and Rivas Nunez on
August 6. Rivas Nunez knew the AT&T employee who would be
working at the store because she was a cousin of one of his ex-girl-
friends, Castillo Vallejo testified. Rivas Nunez also recruited
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6 Opinion of the Court 21-12512
someone named Tato to help with the robbery. Before the AT&T
robbery, Castillo Vallejo met Rodriguez Nunez and gave him a
weapon to use in the robbery, passing the weapon through the
window of his car. Rivas Nunez and Tato were present at that
time, although Castillo Vallejo could not remember where they
were standing relative to the gun. Castillo Vallejo said the three
men—Rodriguez Nunez, Rivas Nunez, and Tato—“needed the
weapon in order to commit the [AT&T] robbery.”
Four days later was the T-Mobile robbery. Castillo Vallejo
explained that the men used two vehicles for the robbery to con-
fuse law enforcement. On the way to the robbery, Rivas Nunez
drove a red KIA Optima, while the rest followed in a white GMC
Yukon. Castillo Vallejo recalled that, again, he gave Rodriguez
Nunez his gun to use in the robbery. Although he was not sure
when he gave Rodriguez Nunez the gun, he thought he did so
while sitting in the white Yukon in the T-Mobile parking lot. Cas-
tillo Vallejo was seated in the back seat on the driver’s side and
handed the gun over the center console to Rodriguez Nunez, who
sat in the front seat. It was possible for anyone sitting in the vehicle
to see the transfer of the firearm. As to the execution of the T-
Mobile robbery, the government entered surveillance videos into
evidence, and Castillo Vallejo identified Rodriguez Nunez and Ri-
vas Nunez as the men shown robbing the store. The surveillance
videos appeared to show Rodriguez Nunez lifting his shirt to show
a T-Mobile employee his gun while in the front of the store. And
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21-12512 Opinion of the Court 7
when Rodriguez Nunez took the employee to the back of the store,
he removed the gun from his waist and held it in his hand.
On cross-examination, Castillo Vallejo was asked whether
he had shown Rivas Nunez the weapon before the T-Mobile rob-
bery. Castillo Vallejo testified that he “never said” that he gave
Rodriguez Nunez the gun in Rivas Nunez’s presence before the T-
Mobile robbery. He was unable to recall whether Rivas Nunez—
who had driven to the store in the KIA Optima—was present when
the gun was transferred in the Yukon. Castillo Vallejo testified that
he was not sure whether Rivas Nunez knew about the gun or not.
The next witness up after Castillo Vallejo was Hannah Scott,
an AT&T employee who was present for the August 6th robbery.
She testified, in relevant part, that she could see one of the defend-
ants had a handgun sticking out of his waistband. Although he
never took it out, she said that “[i]t was clearly a handgun.”
The government’s final two experts focused their testimony
on forensic evidence. Nelson Tai, a digital forensics investigator in
the Seminole County Sheriff’s Office, testified to the following.
Sometime in 2019 he conducted a forensic examination of Castillo
Vallejo’s cell phone. The examination revealed 147 WhatsApp
communications between Castillo Vallejo and Rivas Nunez be-
tween August 2 and August 10, 2019. 21 of those communications
were transmitted on August 6, while 23 were transmitted on Au-
gust 10.
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8 Opinion of the Court 21-12512
Next, Vivian Lack, an FBI translator, testified that she trans-
lated a series of WhatsApp audio and voice messages between Ro-
driguez Nunez and Castillo Vallejo sent between August 6 and 10.
At 12:14 p.m. on August 6, Castillo Vallejo sent Rodriguez Nunez
a message asking him if he could recruit people to go “to the store
for the things.” He said that Rivas Nunez’s sister-in-law worked at
the AT&T store and suggested that they could “tie her by her feet
and hands” and “get all that stuff.” The two men discussed who
would enter the store and who would remain in the car. At one
point, Rodriguez Nunez sent an audio message saying that Castillo
Vallejo would drive the car and wait outside while Rodriguez
Nunez and Rivas Nunez entered wearing masks. Rodriguez Nunez
asked Castillo Vallejo to talk to Rivas Nunez and propose that he
go in the back room during the robbery, while Rodriguez stayed in
the front “with the heat.” Castillo Vallejo, apparently after speak-
ing with Rivas Nunez, reported that Rivas Nunez said he could not
go into the store but was “calling some people.”
Later that day, Castillo Vallejo texted Rodriguez Nunez say-
ing that Rivas Nunez was coming over to pick him up. Rivas
Nunez was about 30 minutes away. Rodriguez Nunez said that
they had to leave for AT&T immediately to avoid traffic. Several
hours later, Castillo Vallejo sent messages listing the names of cell
phone models and accessories. On August 7, Castillo Vallejo sent
an audio message to Rodriguez Nunez saying that Rivas Nunez
wanted to “plan again.”
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After the government rested its case, Rivas Nunez moved
for a judgment of acquittal on the basis that Castillo Vallejo testi-
fied that he did not know if Rivas Nunez knew about the firearm.
He argued that Castillo Vallejo had no explanation for how Rivas
Nunez would have seen him hand the gun to Rodriguez Nunez in
the Yukon when Rivas Nunez had driven the KIA to the T-Mobile
store.
The court denied Rivas Nunez’s motion. Agreeing with the
government’s view of the evidence, the court found that Rivas
Nunez did not check on Rodriguez Nunez when he was alone in
the back room, suggesting that he knew Rodriguez Nunez would
be safe because he was armed. Further, the court said, T-Mobile
surveillance cameras showed that Rodriguez Nunez lifted his shirt
to reveal a firearm, and a reasonable jury could conclude that Rivas
Nunez saw the gun at this point. Even if this was the first time
Rivas Nunez saw the gun, the court reasoned, the defendants had
not yet obtained the phones, and Rivas Nunez had ample oppor-
tunity to leave before the robbery was completed.
The defense then rested its case. Before closing arguments,
Rivas Nunez renewed his motion for a judgment of acquittal. He
argued that the evidence indicated that he did not see the gun until
Rodriguez Nunez revealed it to the T-Mobile employee, and that,
by that point, he did not have a reasonable opportunity to abandon
the robbery. The court denied his renewed motion. After two and
a half hours of deliberation, the jury found Rivas Nunez guilty as
to both counts.
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10 Opinion of the Court 21-12512
Again, Rivas Nunez renewed his motion for judgment of ac-
quittal and requested a new trial in the alternative. He also re-
newed his objection to the court’s admission of evidence of the
AT&T robbery. The district court denied all of Rivas Nunez’s mo-
tions.
D. Sentencing
Before sentencing, Rivas Nunez filed a memorandum asking
for leniency and arguing that his sentence should be proportional
to the sentences of Castillo Vallejo and Valdez Mendez. Rivas
Nunez expressed remorse for his actions and argued that he was
unlikely to recidivate.
A Presentence Investigation Report (PSI) determined that
the base offense level for aiding and abetting Hobbs Act robbery is
20 points, based on U.S.S.G. § 2B3.1(a). The PSI applied a two-level
increase because Rivas Nunez physically restrained Lopez to facili-
tate the commission of the offense. The result was a total offense
level of 22 for count one. With a criminal history category of I, the
PSI calculated the guidelines range at 41 to 51 months’ imprison-
ment on count one, plus a mandatory 84 month consecutive term
of imprisonment on count two. The recommended advisory
guidelines range for both offenses, thus, was 125 to 135 months.
Rivas Nunez raised objections to parts of the PSI, but the district
court overruled those objections and adopted the PSI’s advisory
range.
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Rivas Nunez’s counsel argued at the sentencing hearing for
a sentence proportional to Castillo Vallejo’s and Valdez Mendez’s.
Counsel argued that Rivas Nunez showed compassion during the
T-Mobile robbery. The thrust of the argument was that, although
Rivas Nunez placed Lopez in a chokehold, he loosened his grip to
allow Lopez to breathe. Rivas Nunez took the stand on his own
behalf and asked for forgiveness and leniency, stating that he made
a mistake. The district court, however, imposed a sentence of 51
months for count one and 84 months for count two, for a total of
135 months.
II. Discussion
Our discussion divides into three parts. First, we address the
evidentiary issues Rivas Nunez raises on appeal. Second, we ad-
dress the sufficiency of the evidence supporting the jury’s verdict.
Third, we address whether Rivas Nunez’s sentence was substan-
tively reasonable.
A. Evidentiary Issues
Rivas Nunez argues that the district court should not have
allowed at trial the WhatsApp messages and voicemails related to
the AT&T robbery that occurred four days before the T-Mobile
robbery at the center of this case. Our discussion of the admissibil-
ity of evidence breaks into two subsections. First, we discuss
whether the evidence was inadmissible hearsay. Second, we dis-
cuss whether the evidence was improperly admitted to show Rivas
Nunez’s propensity to engage in armed robberies.
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12 Opinion of the Court 21-12512
We review a district court’s rulings on admission of evi-
dence for an abuse of discretion. United States v. Jiminez, 224 F.3d
1243, 1249 (11th Cir. 2000). We review the district court’s factual
findings that a statement was made by a co-conspirator in further-
ance of a conspiracy under Rule 801(d)(2)(E) under the clearly er-
roneous standard. United States v. Hough, 803 F.3d 1181, 1193
(11th Cir. 2015).
1. Hearsay
Hearsay is a statement that “the declarant does not make
while testifying at the current trial or hearing” and that “a party
offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801(c). A statement is not hearsay, how-
ever, if it was made by co-conspirators during the course and in
furtherance of a conspiracy. Fed. R. Evid. 801(d)(2)(E). For a state-
ment to be admissible under Rule 801(d)(2)(E), the government
must prove by a preponderance of the evidence that: (1) a conspir-
acy existed; (2) the conspiracy included the declarant and the de-
fendant against whom the statement is offered; and (3) the declar-
ant made the statement during the course of and in furtherance of
the conspiracy. United States v. Christopher, 923 F.2d 1545, 1549–
50 (11th Cir. 1991). In analyzing these conditions, the district court
may rely on information provided by the co-conspirator’s proffered
statement, as well as independent external evidence. See United
States v. Byrom, 910 F.2d 725, 735–36 (11th Cir. 1990).
The first two prongs are easily satisfied here. The evidence
supported the district court’s finding that Rivas Nunez participated
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21-12512 Opinion of the Court 13
in a conspiracy to rob AT&T. Much of that evidence came from
the testimony of Castillo Vallejo. He testified that he communi-
cated with Rivas Nunez about the AT&T robbery beforehand. In
fact, he testified that the co-conspirators chose this particular
AT&T store because Rivas Nunez knew the woman working there
and believed that she would be alone. According to Castillo Val-
lejo, Rivas Nunez recruited Tato to help with the robbery. And
Castillo Vallejo testified that Rivas Nunez participated in the rob-
bery as the getaway driver.
Forensic evidence also supported the district court’s finding.
Forensics investigator Tai testified that Castillo Vallejo and Rivas
Nunez communicated via WhatsApp 147 times between August 2
and August 10, including 21 times on August 6. And FBI translator
Lack testified about numerous WhatsApp messages between Cas-
tillo Vallejo and Rodriguez Nunez referencing Rivas Nunez’s in-
volvement in the AT&T robbery. For example, one message
stated that Rivas Nunez was familiar with the AT&T store, another
indicated that Rivas-Nunez was “calling some people” to help with
the robbery, and two messages indicated that Rivas Nunez was on
his way to pick up Rodriguez Nunez. Given Castillo Vallejo’s tes-
timony, the call log, and the contents of the WhatsApp messages,
there was sufficient proof to enable a jury to determine by a pre-
ponderance of the evidence that Rivas Nunez was involved in a
conspiracy to rob AT&T with Castillo Vallejo and Rodriguez
Nunez.
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And on the third prong, the district court did not clearly err
when it found that the WhatsApp messages were sent during and
in furtherance of the conspiracy. Though Rivas Nunez argues that
the crucial WhatsApp communications between Castillo Vallejo
and Rodriguez Nunez were made before Rivas Nunez became a
member of any conspiracy, that is not the case. The earliest mes-
sage admitted into evidence was sent at 12:14 p.m. on August 6, in
which Castillo Vallejo proposed robbing the AT&T store because
Rivas Nunez’s sister-in-law worked there. According to the com-
munications, Rivas Nunez had told his co-conspirators that the
store would be an ideal target because the store employee would
be working alone. Accordingly, the district court did not clearly
err in finding that Rivas Nunez had already committed to being a
member of the conspiracy to rob AT&T by the time Castillo Val-
lejo texted Rodriguez Nunez on August 6.
Because all three prongs are satisfied, we find that the district
court did not abuse its discretion by admitting the WhatsApp mes-
sages as statements of a co-conspirator in furtherance of a conspir-
acy. See Christopher, 923 F.2d at 1549–50.
2. Propensity Evidence
Extrinsic evidence of any crime, wrong, or prior act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the charac-
ter. Fed. R. Evid. 404(b)(1). We have also explained that evidence
of uncharged conduct is intrinsic rather than extrinsic, and thus
outside the scope of Rule 404(b) when it is “part of the same
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21-12512 Opinion of the Court 15
scheme or series of transactions and uses the same modus operandi
as the charged offense[].” United States v. Horner, 853 F.3d 1201,
1214 (11th Cir. 2017). The government argues that the district
court correctly admitted evidence of the AT&T robbery because it
was inextricably intertwined with the T-Mobile robbery. On this
point, the government emphasizes that the robberies occurred
only four days apart, thus constituting the same scheme or series
of transactions, and that they involved the same modus operandi:
multiple robbers entering a store, one robber brandishing a firearm
and directing an employee to place cell phones and electronic de-
vices into containers, taking cash, and then leaving with the stolen
electronics and cash. Rivas Nunez counters that the robberies were
separate and that the similarities between the two occurrences
were not striking enough to show a modus operandi.
Even if Rivas Nunez is correct on this point, however, we
can affirm for any reason supported by the record. United States
v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013). And the government
offers an alternative basis on which the evidence could have been
properly admitted. Extrinsic evidence of a crime, wrong, or prior
act may be admissible to prove “motive, opportunity, intent, prep-
aration, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). For such evidence to be admis-
sible, it must satisfy a three-part test: (1) the evidence is relevant to
an issue other than the defendant’s character; (2) there is sufficient
proof that a jury could find by a preponderance of the evidence that
the defendant committed the act; and (3) the probative value of the
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16 Opinion of the Court 21-12512
evidence is not substantially outweighed by undue prejudice, as es-
tablished in Federal Rule Evidence 403. See United States v. Edou-
ard, 485 F.3d 1324, 1344 (11th Cir. 2007).
Here, on the first prong, evidence of the AT&T robbery was
likely admissible to show Rivas Nunez’s knowledge that Rodriguez
Nunez would be armed in the T-Mobile robbery. If Rivas Nunez
knew that Rodriguez Nunez used a firearm in the AT&T robbery,
the jury could infer that he would have expected Rodriguez Nunez
to do the same in the T-Mobile robbery just four days later. See
Fed. R. Evid. 404(b)(2); cf. United States v. Taylor, 417 F.3d 1176,
1182 (11th Cir. 2005) (per curiam) (evidence that defendant had a
prior conviction for being a felon in possession of a firearm was
admissible to show that he knowingly possessed a firearm in the
instant case). And on the second prong, there was sufficient evi-
dence to prove by a preponderance of the evidence that the extrin-
sic act occurred. Castillo Vallejo testified to the robbery as well as
Rivas Nunez’s involvement, and the government produced com-
munications indicating the same. On the third prong, evidence
about the AT&T robbery was highly probative of whether Rivas
Nunez knew that Rodriguez Nunez intended to carry a firearm at
the T-Mobile robbery, an element of the only count that Rivas
Nunez contested at trial. And although the evidence was prejudi-
cial as well, the district court instructed the jury not to use the evi-
dence to assess Rivas Nunez’s propensity to commit crimes. We
thus cannot say that the evidence’s prejudice “substantially out-
weigh[ed]” its probative value. Accordingly, we find that the
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district court did not abuse its discretion in admitting evidence of
the AT&T robbery.
B. Sufficiency of the Evidence
Rivas Nunez argues next that there was insufficient evidence
to support the jury’s finding that he knew his codefendant would
use a gun in the T-Mobile robbery. When a defendant claims that
the evidence was insufficient to support the jury’s verdict, we con-
duct a de novo review, viewing the evidence in the light most fa-
vorable to the government and resolving all reasonable inferences
in favor of the verdict. United States v. Foster, 878 F.3d 1297, 1303–
04 (11th Cir. 2018). A jury’s guilty verdict must be affirmed unless
there is no reasonable construction of the evidence from which the
jury could have found the defendant guilty beyond a reasonable
doubt. Id. at 1304. A jury is free to choose among reasonable con-
structions of the evidence, so it is unnecessary that the evidence
exclude every reasonable theory of innocence or be wholly incon-
sistent with every conclusion except that of guilt. Id.Here, at a minimum, Castillo Vallejo’s testimony provided
sufficient evidence that Rivas Nunez knew Rodriguez Nunez used
a gun during the AT&T robbery. Castillo Vallejo testified that Ri-
vas Nunez was present when he met with Rodriguez Nunez to
hand off the weapon prior to that robbery. And, as explained
above, if Rivas Nunez knew that Rodriguez Nunez used a weapon
in the AT&T robbery, the jury could have inferred that he knew
Rodriguez Nunez would do the same in the T-Mobile robbery,
only four days later. Cf. Taylor, 417 F.3d at 1182. There was thus
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18 Opinion of the Court 21-12512
sufficient evidence on which to base a guilty verdict, and we affirm
in this regard.
C. Sentencing
Finally, Rivas Nunez argues that his sentence was substan-
tively unreasonable. Specifically, he argues that his sentence was
not proportional to those of similarly situated codefendants Cas-
tillo Vallejo and Valdez Mendez. He also argues that he showed
compassion by loosening the chokehold on Lopez, the store clerk,
when he had trouble breathing. The district court rejected that ar-
gument based in part on the transcript of Lopez’s testimony.
Lopez testified that Rivas Nunez loosened the chokehold only to
take money from the cash register. Rivas Nunez complains about
the district court’s reliance on the trial transcript, saying that he
could not appropriately respond because he lacked access to the
transcript.
We review the reasonableness of a sentence under the def-
erential abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 41 (2007). The party challenging the sentence bears the
burden of demonstrating that it is unreasonable in light of the rec-
ord, the factors listed in 18 U.S.C. § 3553(a), and the substantial def-
erence afforded sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015). We will vacate a lower court’s
sentence only when we have a “definite and firm conviction that
the district court committed a clear error of judgment in weighing
the § 3553(a) factors,” such that the sentence “lies outside the range
of reasonable sentences.” United States v. Irey, 612 F.3d 1160, 1189
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21-12512 Opinion of the Court 19
(11th Cir. 2010) (en banc), 612 F.3d at 1190 (quoting United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). The factors deline-
ated in § 3553(a) include the seriousness of the offense, the promo-
tion of respect of the law and just punishment, the protection of
the public, the nature and circumstances of the offense, the history
and characteristics of the defendant, and the need to avoid unwar-
ranted sentencing disparities among similar defendants. 18 U.S.C.
§ 3553(a)(1)–(6). The district court need not weigh all the factors
equally and can weigh any factor or combination of factors more
heavily than the guideline range. Rosales-Bruno, 789 F.3d at 1259.
In making its decision, the district court may consider any relevant
information with sufficient indicia of reliability. U.S.S.G.
§ 6A1.3(a).
When addressing whether a district court has created an un-
warranted sentencing disparity among defendants who have com-
mitted comparable or less egregious offenses, we conduct a fact-
specific comparison between the appellant and other defendants.
Irey, 612 F.3d at 1219–21. However, a disparity between the sen-
tences imposed on codefendants is generally not a basis for relief
on appeal. United States v. Cavallo, 790 F.3d 1202, 1237 (11th Cir.
2015). We have upheld varied sentences between codefendants
convicted as part of the same conspiracy solely because some de-
fendants pleaded guilty and others did not. Id.Here, Rivas Nunez has not shown that his sentence is sub-
stantively unreasonable because, even if he could make a cogniza-
ble claim based on a disparity between his sentence and those of
USCA11 Case: 21-12512 Date Filed: 06/01/2022 Page: 20 of 20
20 Opinion of the Court 21-12512
his codefendants, he and his codefendants were not similarly situ-
ated. Castillo Vallejo pleaded guilty and provided substantial testi-
mony on behalf of the prosecution at Rivas Nunez’s trial. Id. And
as the district court noted, Valdez Mendez was never charged with
a firearm offense and pleaded guilty to the robbery charge. There-
fore, the Rivas Nunez has not shown a disparity between himself
and similarly situated codefendants.
The argument that the district court improperly relied on
the trial transcript is also without merit. Rivas Nunez brought up
arguments about the chokehold at sentencing and was present at
trial when Lopez testified about it. Sentencing courts may rely on
any information with sufficient indicia of reliability, including evi-
dence admitted at trial. U.S.S.G. § 6A1.3.(a). Therefore, we find
no error in the district court’s reliance on the transcript.
Because the district court did not err in its reliance on the
trial transcript, nor in imposing a higher sentence on Rivas Nunez
than on his codefendants, we uphold the sentence as substantively
reasonable.
AFFIRMED.