United States v. Roberto Ortiz Cruz

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0123n.06
Nos. 22-3326/3525
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Mar 10, 2023
UNITED STATES OF AMERICA,
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ON APPEAL FROM THE
)
UNITED STATES DISTRICT
)
HECTOR JOEL GARCIA MATOS (22-3326); COURT FOR THE NORTHERN
)
ROBERTO ORTIZ CRUZ (22-3525), DISTRICT OF OHIO
)
Defendant-Appellants. )
OPINION
)
Before: GRIFFIN, BUSH, and MURPHY, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Hector Garcia Matos and Roberto Cruz were part of an
extensive drug trafficking scheme that shipped vast quantities of cocaine from Puerto Rico to
Cleveland, Ohio. Each defendant entered a guilty plea and now challenges his sentence. Both
defendants procedurally challenge the district court’s assessment of a four-level enhancement
based on USSG § 3B1.1(a), while Garcia Matos further challenges his sentence for substantive
reasonableness. None of their arguments have merit, so we AFFIRM.
I.
Between early 2019 and April 2021, Garcia Matos and Cruz, along with several others,
trafficked large amounts of cocaine in and around Cleveland, Ohio. Kevin Santiago, a co-
conspirator residing in Puerto Rico, used the United States Postal Service to ship the cocaine from
Puerto Rico to Cleveland and elsewhere for redistribution. Cruz ordered packages of the drugs
from Santiago, who in turn would provide Cruz the tracking numbers for the shipments. Those
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parcels went to various addresses provided by Garcia Matos to Santiago because Cruz did not want
the cocaine sent directly to his residence. Also, at the direction of Cruz, Garcia Matos and
Jacqueline Cruz (Cruz’s mother) transported cash proceeds from drug sales in Cleveland to the
East Coast. FBI agents were alerted to the activity, and, after an extensive investigation and several
controlled buys, Cruz and Garcia Matos were arrested. A grand jury indicted Cruz, Garcia Matos,
and nine other co-conspirators on 28 counts.
Both Garcia Matos and Cruz entered plea agreements. Garcia Matos agreed to plead guilty
to three counts: one count for conspiracy to possess with intent to distribute cocaine in violation
of 21 U.S.C. § 846 and two counts for possession with intent to distribute cocaine in violation of
21 U.S.C §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. Cruz agreed to plead guilty to the same
counts as Garcia Matos plus an additional count for possession with intent to distribute cocaine.
Neither agreement reached final terms concerning sentencing, but both stipulated to a computation
of the advisory sentencing guidelines offense level. The stipulation provided that Garcia Matos
and Cruz’s aggravating role would carry a two-level enhancement under USSG § 3B1.1(c). The
district court informed Garcia Matos that, should the pre-sentence report (PSR) confirm the plea
agreement’s recommendations, his sentencing guidelines range would be 78-to-97 months under
the PSR. As for Cruz, his sentencing guidelines range would be 120-to-135 months under the
PSR. Nevertheless, the district court advised both Cruz and Garcia Matos the PSR’s sentencing
range was only a recommendation—the court would need to review the PSR before making a final
decision.
Each defendant’s PSR designated him as a leader of the drug trafficking organization and
recommended a four-level enhancement pursuant to USSG § 3B1.1(a) rather than the two-level
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enhancement outlined in § 3B1.1(c). Both Garcia Matos and Cruz objected to the four-level
enhancement.
Accepting the PSR’s recommendations for Garcia Matos and Cruz, the district court
applied a four-level enhancement to each defendant’s guidelines calculation for being a leader or
organizer of the drug conspiracy. Counsel for both defendants objected to the enhancement, but
the court overruled them. The district court determined that Garcia Matos was a leader because
he recruited participants, supplied cocaine to co-conspirators, and directed his girlfriend to
distribute cocaine and collect drug proceeds owed to him from other co-conspirators. The district
court found that Cruz was a leader because he supplied cocaine to multiple co-conspirators,
directed Garcia Matos and his mother to deliver drug proceeds, and indicated to Garcia Matos that
he had acquired a new supply source for cocaine. The district court assessed Garcia Matos’s
offense level at 30 and his criminal history category at I, resulting in a sentencing range of 97-to-
121 months. The district court sentenced Garcia Matos to a within-guidelines sentence of 121
months. As for Cruz, the district court assessed his offense level at 33 and his criminal history
category at I, resulting in a sentencing range of 135-to-168 months. The district court sentenced
him to a within-guidelines sentence of 168 months. Garcia Matos and Cruz timely appealed their
sentences.
II.
We review the district court’s sentencing for reasonableness, first for procedural error,
second for substantive error. See Gall v. United States, 552 U.S. 38, 51 (2007). As noted, Cruz
challenges his sentence only for procedural reasonableness, while Garcia Matos challenges his
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sentence for both procedural and substantive reasonableness.
Procedural reasonableness inquiries include whether the district court properly calculated
the guidelines range and treated it as advisory, as well as whether it appropriately considered the
18 U.S.C. § 3553(a) sentencing factors and adequately explained the chosen sentence based on
those factors. United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018) (citing Gall, 552 U.S. at
51). We determine whether a sentence is procedurally reasonable under the abuse-of-discretion
standard of review. Id. (citations omitted). The district court’s “factual findings will stand unless
clearly erroneous,” and its legal conclusions are reviewed de novo. Id.A district court’s finding that the defendant was a leader or organizer carries a four-level
increase to the offense level, USSG § 3B1.1(a), which a defendant may challenge for procedural
error, see United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013). To qualify as a leader
or organizer, the defendant “must have exerted control over at least one individual” within the
conspiracy. United States v. Gort-Didonato, 109 F.3d 318, 321 (6th Cir. 1997). It is not enough
to be an essential part of the conspiracy or manage its property. United States v. Christian, 804
F.3d 819, 824 (6th Cir. 2015); United States v. Vandeberg, 201 F.3d 805, 811–12 (6th Cir. 2000).
Rather, courts look to a defendant’s receipt of a larger share of profits, recruitment of co-
conspirators, planning, special expertise, providing special information to facilitate the crime, or
issuing orders. United States v. Gray, Nos. 20-3019, 3223, 3393, 2021 WL 4963366, at *5 (6th
Cir. Oct. 26, 2021); see also USSG § 3B1.1, cmt. n.4. But the court “need not find each factor in
order to warrant an enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir.
2012).
If procedurally reasonable, we evaluate the sentence’s substantive reasonableness. “The
essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater than
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necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.
Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). A within-guidelines sentence is afforded
a presumption of reasonableness. United States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008)
(en banc). Like procedural reasonableness, substantive reasonableness is reviewed for abuse of
discretion. United States v. Wandahsega, 924 F.3d 868, 886 (6th Cir. 2019) (citing Gall, 552 U.S.
at 51.) “[B]ecause balancing the § 3553(a) factors ‘is a matter of reasoned discretion, not math,’
our review here is ‘highly deferential.’” Gray, 2021 WL 4963366, at *4 (Rayyan, 885 F.3d at
442).
III.
A. Roberto Cruz
Cruz challenges his sentencing only on one basis—that his designation as a leader or
organizer pursuant to USSG § 3B1.1(a) was procedurally unreasonable. Cruz maintains that the
record does not contain facts sufficient for such a designation. Rather, he argues that the record
reflects that Garcia Matos—not Cruz—controlled and organized the operation. Cruz argues that
Garcia Matos controlled the distribution of drugs, stored the money and drugs, and had control
over Cruz because Garcia Matos could cut Cruz out of the operation if he wanted. Furthermore,
one of the co-conspirators, Keishla Lopez Lebron, stated that “[Cruz] doesn’t know how to do
anything. . . . [He] only goes by what [Santiago] tells him.” R.1, Indictment, PageID.22. Cruz
asserts that Lopez Lebron’s statement proves he could not be a leader. He also contends that when
he instructed his mother to deliver drug proceeds, it was at the direction of another organizer,
Santiago. Indeed, according to Cruz, his mother appeared to have knowledge and involvement in
the conspiracy outside of him. Finally, Cruz contends that he did not share in any proceeds beyond
receiving a flat fee per parcel and he did not control how the drugs were sold or at what price.
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Essentially, Cruz argues he played a role in the scheme that justified a two-level enhancement, but
not a four-level one.
Cruz’s arguments are unpersuasive. First, the district court’s finding that Garcia Matos
was a leader does not preclude it from concluding that Cruz also was a leader. See USSG § 3B1.1,
cmt. n.4 (“There can, of course, be more than one person who qualifies as a leader or organizer of
a criminal association or conspiracy.”). Second, the district court noted, among other things, that
Cruz was the direct contact for the supplier, Santiago, and that Cruz had directed co-defendants,
including his own mother, to transport cash proceeds across state lines.1 As for Keishla’s
statement, the district court considered it and determined that it was her opinion, not a statement
of fact or truth. The district court is “most familiar with the facts and is best situated to determine
whether someone is or is not a ‘leader’ of a conspiracy,” so we defer to its judgment. Washington,
715 F.3d at 983. We cannot say that it clearly erred. Rayyan, 885 F.3d at 440.
B. Hector Garcia Matos
Garcia Matos argues that the district court’s sentencing was both procedurally and
substantively unreasonable. The district court, Garcia Matos contends, abused its discretion when
it sentenced him to 24 months above what he believed was his appropriate sentencing guideline.
We address procedural and substantive reasonableness in turn below.
1. Procedural Reasonableness
Garcia Matos argues that his sentencing was procedurally unreasonable for two reasons.
First, the district court improperly applied a four-level enhancement that substantially increased
1
Cruz also argues that these facts, contained in the PSR, are clearly erroneous. But he did not
object to the contents of the PSR, nor did he present evidence to dispute them. Therefore, the
district court was entitled to accept the PSR “as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A);
see also United States v. Geerken, 506 F.3d 461, 467 (6th Cir. 2007).
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the sentencing guidelines range to 97-to-121 months. Garcia Matos argues that the district court
should have followed the plea agreement’s recommendation of a two-level enhancement, which
contemplated a sentencing range of 78-to-97 months. Second, the district court imposed a sentence
that Garcia Matos contends was unreasonable because it did not consider all the § 3553(a) factors.
Specifically, Garcia Matos argues that the district court did not consider his lack of criminal history
or his age and its relationship to the “age-crime curve.”
We are not persuaded. First, with respect to the four-level enhancement, the district court
committed no procedural error. Although the plea agreement stipulated to a two-level
enhancement, that stipulation was by its own terms not binding. See Fed. R. Crim. P. 11(c)(1)(B)
(a plea agreement may specify that the government will recommend a nonbinding sentencing
range); United States v. Davidson, 409 F.3d 304, 310–12 (6th Cir. 2005). Garcia Matos does not
challenge the factual basis of the four-level enhancement; he concedes that he had a leadership
role. And the court imposed the four-level enhancement after determining that the facts in the PSR
warranted a greater enhancement than that specified in the stipulation. Cf. United States v. Davis,
796 F. App’x 886, 890 (6th Cir. 2019). We defer review of the facts to the district court, and there
was no clear error here. See Washington, 715 F.3d at 982.
Second, to the extent that Garcia Matos argues that the district court did not consider all
the § 3553(a) factors, the record belies that assertion. The district court considered Garcia Matos’s
lack of criminal history, age, and relevant background history. There was no procedural error
based on any omission of § 3553(a) factors.
2. Substantive Reasonableness
Because Garcia Matos’s sentence is within guidelines, it is afforded a presumption of
substantive reasonableness. See Vonner, 516 F.3d at 389–90. Garcia Matos argues, however, that
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his sentence is substantively unreasonable because the district court gave too little weight to his
remorse, acceptance of responsibility, and claims of substance abuse, among other things. But, in
its review, the district court considered all those factors, including Garcia Matos’s background,
noting that he came from a poor environment where he witnessed drugs and violence and that he
had limited education. The district court also noted Garcia Matos’s claim to substance abuse but
gave it little weight based on his earlier contradictory statements. Ultimately, the district court
chose to give significant weight to Garcia Matos’s leadership role in a conspiracy that involved
the transportation and sale of large amounts of drugs across state lines. The district court noted
the danger associated with cocaine evinced by the rising death toll and other harms in the area.
Because our review of the district court’s balancing the § 3553(a) factors is highly deferential, we
cannot say that the district court abused its discretion here. Rayyan, 885 F.3d at 442.
IV.
Cruz and Garcia Matos’s sentences were reasonable. We therefore AFFIRM.
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