USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11727
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL BELTREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00489-WFJ-CPT-2
____________________
USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 2 of 7
2 Opinion of the Court 21-11727
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Abel Beltrez was convicted of conspiracy to possess a
substance containing fentanyl with intent to distribute. The district
court imposed a sentence of 240 months—the statutory maximum.
Beltrez argues that his sentence is procedurally and substantively
unreasonable and that the district court violated his Fifth and Sixth
Amendment rights by considering improper facts. But the district
court did not err in imposing Beltrez’s sentence. We therefore
affirm.
The facts underlying Beltrez’s conviction are not in dispute.
One summer day in 2019, Vincent Trujillo picked up a known
heroin dealer in his van, then dropped him off after circling a
parking lot one time. Later that day, Trujillo died from a fentanyl
overdose. After setting up controlled buys with the dealer who had
supplied Trujillo’s fentanyl, the police eventually obtained a
warrant to search the dealer’s house—one that he shared with
Beltrez. Beltrez, the dealer, and several other occupants were
arrested when police found controlled substances, drug
paraphernalia, and firearms scattered throughout the house.
Fifteen grams of a substance containing the same type of fentanyl
sold to Trujillo were found on Beltrez’s person. Further
investigation revealed that Beltrez supplied heroin and fentanyl to
the other residents of the house and provided food and lodging in
exchange for their willingness to conduct drug transactions on his
behalf.
USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 3 of 7
21-11727 Opinion of the Court 3
Beltrez pleaded guilty to one charge of conspiracy to possess
a controlled substance (fentanyl) with intent to distribute. See
21
U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). The presentence
investigation report calculated that under the Sentencing
Guidelines, Beltrez faced a sentence of 41 to 51 months. It noted,
however, that several factors weighed in favor of an upward
departure. For instance, it explained that multiple prior sentences
were treated as a single sentence on one occasion in 2008, lowering
Beltrez’s base offense level and criminal history category.
Furthermore, while Beltrez had not been charged with causing
Trujillo’s death, the fact that death had resulted from the charged
conduct could also justify an upward departure.
The district court agreed. It explained that Trujillo’s death
was “a knowing and reasonably foreseeable outcome of a drug
distribution conspiracy” that Beltrez had aided and abetted. On top
of that, Beltrez had managed to insulate himself from the
consequences of the conspiracy by using the other residents of the
house to conduct risky drug transactions like the one that caused
Trujillo’s overdose. In other words, even though he was a key
player in the operation, Beltrez had managed to allocate most of
the risk to his subordinates. The court was also troubled by
Beltrez’s “very substantial criminal history” and his participation in
an organized crime group. In light of all this, the court applied an
upward variance to Beltrez’s sentence and imposed the maximum
penalty allowed by statute: 240 months of imprisonment. See
21
U.S.C. §§ 846, 841(b)(1)(C).
USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 4 of 7
4 Opinion of the Court 21-11727
On appeal, Beltrez argues that his sentence is procedurally
and substantively unreasonable and that the district court’s
consideration of uncharged conduct (and of Trujillo’s death)
invalidates the sentence. He is wrong on all counts.
First, the district court did not procedurally err. We
consider the procedural fairness of a sentence before its substantive
reasonableness, and do so under an abuse-of-discretion standard.
Gall v. United States,
552 U.S. 38, 51 (2007). A district court may
commit procedural error by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” United States v.
Pugh,
515 F.3d 1179, 1190 (11th Cir. 2008) (quoting Gall,
552 U.S.
at 51).
Beltrez points to no specific alleged procedural error, and we
find none ourselves. The district court correctly explained that the
Sentencing Guidelines provided for a range of 41 to 51 months and
that those Guidelines were advisory. It imposed a sentence only
after considering the factors outlined in “[§] 3553(a)(1) through (7)”
in light of the record. The court’s reasoning reveals no reliance on
any clearly erroneous fact. And the court explains its deviation
from the Guidelines range in considerable detail, outlining several
specific factors justifying its variance. Beltrez’s sentence was
procedurally valid.
USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 5 of 7
21-11727 Opinion of the Court 5
Second, the sentence is substantively reasonable. We again
apply the abuse-of-discretion standard to this inquiry, which
requires us to “take into account the totality of the circumstances.”
Gall,
552 U.S. at 51. One such circumstance is the extent to which
the sentence falls outside the range of the Sentencing Guidelines,
but we “may not apply a presumption of unreasonableness” simply
because a sentence is outside that range.
Id. Instead, we “must
give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id. We may
find a sentence to be unreasonable if it “does not achieve the
purposes of sentencing stated in § 3553(a)”—that is, if the district
court “weighed the factors in a manner that demonstrably yields
an unreasonable sentence.” Pugh,
515 F.3d at 1191 (quotation
omitted).
That is not the case here. The district court considered the
relevant § 3553(a) factors and explained why a sentence of 240
months was no greater than necessary to achieve the purposes of
sentencing. Although Trujillo’s death was “not intended,” the
court correctly noted that it indicated “the nature and severity of
the criminal activity” in which Beltrez had engaged. See
18 U.S.C.
§§ 3553(a)(1), 3553(a)(2)(A). The court also pointed out Beltrez’s
significant criminal history, which was “understated” due to the
way in which Beltrez had been previously sentenced and which
therefore was not fully reflected in the Guidelines range. And as
explained above, the court was troubled by the “unusually
pernicious” method of drug distribution employed by Beltrez,
USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 6 of 7
6 Opinion of the Court 21-11727
which allowed him to easily shift legal consequences onto dealers
working for him.
Beltrez’s arguments that the court failed to properly weigh
mitigating factors are not persuasive. The court acknowledged
Beltrez’s difficult life circumstances, but explained that any
mitigation was “outweighed significantly by the pretty much
nonstop criminal activity” in which he engaged. Beltrez now
argues that he “will be of little risk to reoffend and will be of an
even lesser risk to the public upon his release from prison.” But
this unsupported statement does not offset the district court’s
concerns about his organized crime activity, his extensive criminal
history, and his lack of lawful work experience.
Although the district court varied upward from the
Sentencing Guidelines recommendation, it did so based on the
seriousness of the offense, the circumstances of the case, and the
need to prevent Beltrez from committing further criminal acts.
Beltrez’s sentence thus does not lie “outside the range of
reasonable sentences dictated by the facts of the case.” See Pugh,
515 F.3d at 1191 (quotation omitted).
Finally, Beltrez argues that the district court improperly
considered uncharged conduct in formulating his sentence. The
district court specifically discussed Trujillo’s death as a factor
supporting its upward variance. But Beltrez was not charged with
distribution resulting in death, so Beltrez contends that this was a
violation of his Fifth and Sixth Amendment rights.
USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 7 of 7
21-11727 Opinion of the Court 7
We review the constitutionality of a defendant’s sentence de
novo. United States v. Ghertler,
605 F.3d 1256, 1268 (11th Cir.
2010). But here we are bound by precedent, which “squarely holds
that sentencing judges may find facts under an advisory Guidelines
system so long as the sentence imposed does not exceed the
statutory maximum.”
Id. at 1269; see also Witte v. United States,
515 U.S. 389, 397–404 (1995). The district court did not exceed the
statutory maximum, so its consideration of facts not charged in the
indictment and not found by a jury did not violate Beltrez’s
constitutional rights.
We AFFIRM Beltrez’s sentence.
