United States v. Alejandro Acevedo Luna

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10119
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO ACEVEDO LUNA,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cr-00020-CEM-DAB-2
____________________
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2 Opinion of the Court 23-10119
Before WILLIAM PRYOR, Chief Judge, and WILSON and LUCK, Cir-
cuit Judges.
PER CURIAM:
Alejandro Acevedo Luna appeals his sentence of 180 months
of imprisonment imposed after he pleaded guilty to conspiring to
possess with intent to distribute 400 grams or more of a substance
containing fentanyl. 21 U.S.C. §§ 846, 841(b)(1)(A). Acevedo Luna
argues that his sentence is substantively unreasonable. He also ar-
gues, for the first time on appeal, that his sentence is procedurally
unreasonable. We affirm.
Acevedo Luna agreed to plead guilty to conspiring to pos-
sess with intent to distribute 400 grams or more of fentanyl. Id. His
written plea agreement included a factual basis for the crime, in
which he admitted that he bought a one-kilogram package of fen-
tanyl from Luis Omar Rosa Cotto and planned to sell the fentanyl
for $33,000 with the help of Juan Carlos Garcia. Garcia later rec-
orded a video of himself holding the same package of fentanyl. The
next day, police officers lawfully stopped a vehicle in which Garcia
and Acevedo Luna were traveling. Acevedo Luna was in the pas-
senger seat, and officers found the package of fentanyl in the
backseat on the passenger’s side. The package was identical to the
one Acevedo Luna bought from Rosa Cotto and that was featured
in Garcia’s video. Officers also found a loaded firearm, which Gar-
cia stated was his. Acevedo Luna later admitted that he was travel-
ing to transact a drug sale, Garcia was assisting him with the sale,
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23-10119 Opinion of the Court 3
and he obtained the fentanyl from Rosa Cotto. Agents found on
Acevedo Luna’s cell phone a photograph sent by Rosa Cotto of the
same package of fentanyl.
Acevedo Luna’s presentence investigation report initially
provided a base offense level of 30 based on the substance being
pure fentanyl. United States Sentencing Guidelines Manual
§ 2D1.1(c)(5) (Nov. 2021). But after the substance was tested, the
probation officer advised that the report would be amended to re-
flect that the substance was fluorofentanyl, a fentanyl analogue,
which would result in a higher base offense level of 34. Id.
§ 2D1.1(c)(3). Acevedo Luna objected that his plea agreement stip-
ulated only that the substance was fentanyl. The government also
objected to the initial report and argued that an obstruction-of-jus-
tice enhancement should be applied because he had perjured him-
self at Garcia’s trial by giving testimony that was inconsistent with
his post-arrest statements and factual proffer, including that Garcia
was unaware that they were driving to a drug deal when they were
stopped, that Acevedo Luna never previously purchased drugs
from Rosa Cotto, that Garcia never saw or discussed the drugs with
Acevedo Luna, and that Garcia was not the person holding the
drugs in the video. The government also objected that he should
not receive a two-level reduction for acceptance of responsibility.
The final presentence report provided an advisory sentenc-
ing range of 188 to 235 months of imprisonment based on a total
offense level of 36 and a criminal history category of I. Acevedo
Luna’s total offense level was based on a base offense level of 34 for
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4 Opinion of the Court 23-10119
1,018.5 grams of fentanyl analogue, id., a two-level enhancement
for the firearm, id. § 2D1.1(b)(1), a two-level enhancement for ob-
struction of justice, id. § 3C1.1, and a two-level reduction for ac-
ceptance of responsibility, id. § 3E1.1(a).
At sentencing, Acevedo Luna confirmed that his guilty plea
was unaffected by the substance being a fentanyl analogue instead
of fentanyl and reaffirmed his guilty plea. He and the government
requested a four-level downward variance to uphold the original
signed plea agreement and to consider the sentence imposed on
one of his codefendants. The district court granted the request for
a “four-point level reduction” and adopted the undisputed factual
statements and Guideline applications in the presentence report.
The district court also determined that the acceptance-of-responsi-
bility reduction applied because he reaffirmed his guilty plea.
The district court invited the parties to discuss the obstruc-
tion-of-justice enhancement for perjury. The government argued
that Acevedo Luna’s perjury at Garcia’s trial was severe and could
have resulted in a hung jury. Acevedo Luna explained that he
changed his story because a jail guard told other inmates about his
cooperation, which led to speculation about his frequent trips to
court. He argued that he intended to tell the truth at Garcia’s trial
but “froze” because he was afraid for his family. After the district
court called Acevedo Luna’s decision to testify falsely before a jury
“a severe action” that needed to be addressed, his counsel conceded
that “it is extraordinary” and that he had never seen someone
change their testimony and “do[] a 180 on the stand.” The district
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23-10119 Opinion of the Court 5
court stated that it would accept Acevedo Luna’s explanation for
his poor decision, but it also had to “consider the real possibility
that [he] made this whole thing up in order to try to mitigate the
impact of his false testimony at trial.” Acevedo Luna maintained
that his story was plausible and emphasized that he had been coop-
erative up until Garcia’s trial. With the obstruction-of-justice en-
hancement, the probation officer explained that Acevedo Luna’s
total offense level still was 36, because the district court would then
vary downward by four levels. After applying the four-level down-
ward variance, the district court stated that the advisory sentencing
range was 121 to 151 months of imprisonment.
The district court imposed a sentence of 180 months of im-
prisonment. The district court explained that this was an “ex-
tremely dangerous” offense and that it could not “imagine how
many people [one kilogram of fentanyl] could kill.” The district
court stated that it believed Acevedo Luna was “very involved” in
the drug trade based on how he was able to procure $33,000 of fen-
tanyl within hours of requesting it. The district court explained that
the other problem was Acevedo Luna’s perjury. The district court
explained that it “had the benefit of watching his body language”
when he turned on the government at trial and saw that he re-
mained “defiant and unapologetic” despite his self-contradictory
statements about Garcia’s involvement. The district court stated
that “the most dangerous person to the process is not the one who
gets caught . . . but the one that tries to attack the foundation of the
process.” It found that Acevedo Luna was “extremely dangerous”
because instead of refusing to testify, he took a “very severe course
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6 Opinion of the Court 23-10119
of action” in perjuring himself, which required a severe conse-
quence. In explaining why Acevedo Luna’s sentence was 60
months longer than Rosa Cotto’s sentence of 120 months, it stated:
“Had [Acevedo Luna] followed [counsel’s] instructions and testi-
fied truthfully or said he wasn’t going to testify, he could conceiv-
ably be looking at the same sentence that Rosa Cotto got, but he’s
not looking at that sentence now.” Acevedo Luna initially declined
to object but later accepted an invitation by the district court to
preserve an objection to the substantive reasonableness of his sen-
tence due to the upward variance.
We review the reasonableness of a sentence for abuse of dis-
cretion. United States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013).
The district court imposes a substantively unreasonable sentence
when it fails to afford consideration to relevant factors that were
due significant weight, gives significant weight to an improper or
irrelevant factor, or commits a clear error of judgment in consider-
ing the proper factors. United States v. Taylor, 997 F.3d 1348, 1355
(11th Cir. 2021). The district court also “has considerable discretion
in deciding whether the § 3553(a) factors justify a variance and the
extent of one that is appropriate.” United States v. Oudomsine,
57 F.4th 1262, 1266 (11th Cir. 2023). We will disturb the sentence
if, but only if, we “are left with the definite and firm conviction that
the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
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23-10119 Opinion of the Court 7
Acevedo Luna’s sentence is substantively reasonable. The
district court reasonably determined that varying upward to a sen-
tence of 180 months was necessary to account for his “severe
course of action” of defiantly and unapologetically perjuring him-
self at Garcia’s trial and his serious offense involving a large amount
of a lethal controlled substance. See Oudomsine, 57 F.4th at 1266. In
finding that Acevedo Luna was an “extremely dangerous” person
who had committed an “extremely dangerous” offense, the district
court viewed his perjury as an attack on the foundation of judicial
process and reasonably determined that the consequence for this
“very severe course of action” must also be severe. The district
court did not abuse its discretion. See United States v. Butler, 39 F.4th
1349, 1355 (11th Cir. 2022) (“[A] sentencing court may impose an
upward variance based upon uncharged conduct as it relates to the
history and characteristics of the defendant, as well as the need to
promote respect for the law, afford adequate deterrence, and pro-
tect the public.”).
Acevedo Luna argues that the district court failed to con-
sider whether the upward variance created unwarranted disparities
with his codefendants’ sentences. See 18 U.S.C. § 3553(a)(6). We
disagree. Even if this were an appropriate basis for relief, see United
States v. Cavallo, 790 F.3d 1202, 1237 (11th Cir. 2015), Acevedo Luna
is not similarly situated with his codefendants. Indeed, the district
court explained to Acevedo Luna that if he had “testified truthfully
or said he wasn’t going to testify, he could conceivably be looking
at the same sentence that Rosa Cotto got, but he’s not looking at
that sentence now.” And insofar as Acevedo Luna seeks to
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8 Opinion of the Court 23-10119
challenge the procedural reasonableness of his sentence on this
ground, he cannot establish that the district court plainly erred by
not addressing this statutory sentencing factor, 18 U.S.C.
§ 3553(a)(6). See United States v. McBride, 511 F.3d 1293, 1297 (11th
Cir. 2007) (“[A] district court need not account for every § 3553(a)
factor, nor must it discuss each factor and the role that it played in
sentencing.”).
We AFFIRM Acevedo Luna’s conviction and sentence.