United States v. Carlos Flores ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4569
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS ANTONIO FLORES,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, Senior District Judge. (5:15-cr-00073-FDW-DCK-
3)
Submitted: April 26, 2018 Decided: May 9, 2018
Before DUNCAN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra Barrett, Asheville, North Carolina, for Appellant. R. Andrew Murray, United
States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Antonio Flores appeals from his life sentence, imposed pursuant to a jury
verdict convicting him of a methamphetamine conspiracy and possession with intent to
distribute methamphetamine. On appeal, he challenges the procedural and substantive
reasonableness of his sentence. We affirm.
I.
Flores first argues that the district court erred in overruling his objections to the
base offense level and each and every enhancement applied to him in the presentence
report (“PSR”). However, at sentencing, Flores’ objections essentially consisted of
stating that the enhancements were not proved at trial. As for the witness statements
contained in the PSR, Flores averred that they are too general and vague to support the
enhancements. With a few exceptions, Flores’ arguments on appeal remain nonspecific. *
*
Flores notes that Jose Duanes-Intriago testified at trial that he hired Ortiz to be
Flores’s driver. Flores contends that this testimony was inconsistent with the conclusion
that Flores recruited Juan Ortiz-Rodriguez. However, “hiring” and “recruiting” are not
necessarily the same thing; moreover, even if Duanes-Intriago recruited Ortiz-Rodriguez,
there was still evidence presented at sentencing that Flores managed and supervised
Ortiz-Rodriguez. See U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.4 (noting that
recruitment is a factor to consider); United States v. Llamas, 599 F.3d 381, 390 (4th Cir.
2010) (citation and internal quotations omitted)(“[T]he aggravating role adjustment is
appropriate where the evidence demonstrates that the defendant controlled the activities
of other participants or exercised management responsibility.”); see also United States v.
Slade, 631 F.3d 185, 190 (4th Cir. 2011) (noting this court has affirmed application of an
aggravating role adjustment under USSG § 3B1.1(b) where there was “record evidence
that the defendant actively exercised some authority over other participants in the
operation or actively managed its activities”).
Next, Flores notes that, at trial, Ritchie Allen Shook testified that Duanes-Intriago
threatened him. Flores asserts that this testimony is inconsistent with the PSR’s finding
(Continued)
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At sentencing, a district court must either rule on “any disputed portion of the
presentence report or other controverted matter[,] . . . or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because the court will
not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). We have opined,
however, that a district court “need not articulate [findings] as to disputed factual
allegations with minute specificity.” United States v. Bolden, 325 F.3d 471, 497 (4th Cir.
2003) (alteration in original; internal quotation marks omitted). The sentencing court
“may simply adopt the findings contained in a PSR,” so long as it clarifies “which
disputed issues were resolved by its adoption.” Id. (internal quotation marks omitted);
see also United States v. Walker, 29 F.3d 908, 912-13 (4th Cir. 1994) (holding district
court satisfied Rule 32 in expressly overruling defendant’s objections to the PSR and
imposing a sentence in accordance with the report’s recommendation).
We find no error in the district court’s treatment of Flores’s objections. Flores’s
objections amounted to not much more than general denials of the conduct alleged
therein. Because Flores failed to offer any evidence or argument to demonstrate that the
information was unreliable or inaccurate, the district court was “free to adopt the findings
of the presentence report without more specific inquiry or explanation.” United States v.
Terry, 916 F.2d 157, 162 (4th Cir. 1990) (internal quotation marks and alteration omitted)
that Flores threatened Shook. However, these assertions are not inconsistent, as both men
might have issued separate or combined threats. Moreover, Shook asserted that he
understood the specific threats that came from Duenas-Intriago to be issued from both
Duenas-Intriago and Flores.
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(“A mere objection to the finding in the presentence report is not sufficient. The
defendant has an affirmative duty to make a showing that the information in the
presentence report is unreliable, and articulate the reasons why the facts contained therein
are untrue or inaccurate.”).
Moreover, the Government need only prove the facts supporting a sentence
enhancement by a preponderance of the evidence. United States v. Mondragon, 860 F.3d
227, 233 (4th Cir. 2017). It is well established that a court may, for purposes of
sentencing, consider “any relevant information before it, including uncorroborated
hearsay, provided that the information has sufficient indicia of reliability to support its
accuracy.” Id. Flores’ coconspirators’ statements, both in and out of court, provided
more than sufficient evidence to support all the enhancements, as well as the drug
amount. The issues at trial were different and, thus, any failure to prove the
enhancements through trial testimony is without probative value. Flores’s general denials
were insufficient to require any further analysis by the district court. Accordingly, the
district court did not err in calculating Flores’s drug quantity and enhancements.
II.
Flores next argues that the district court did not give a sufficient explanation for
his within-Guidelines sentence. In explaining a sentence, the district court “‘must make
an individualized assessment based on the facts presented’ when imposing a sentence,
‘applying the relevant § 3553(a) factors to the specific circumstances of the case’ and the
defendant, and must ‘state in open court the particular reasons supporting its chosen
sentence.’” United States v. Lymas, 781 F.3d 106, 113 (4th Cir. 2015) (quoting United
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States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)) (alterations and emphasis omitted).
“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a
different sentence than that set forth in the advisory Guidelines, a district judge should
address the party’s arguments and explain why he has rejected those arguments.” Carter,
564 F.3d at 328 (internal quotation marks omitted).
Here, the district court provided a detailed explanation for the life sentence. The
explanation explicitly considered the mitigating circumstances presented by Flores, but
determined that the seriousness of the offense and the extent of the conspiracy
outweighed any such circumstances. Moreover, Flores’s main contention was that the
enhancements were not proven at trial, an argument entirely without relevance to the
evidence presented at sentencing. Accordingly, the district court committed no error in
its explanation of sentence.
III.
Finally, Flores argues that his sentence was greater than necessary, given the short
time period of his participation in the conspiracy, the fact that he was not the most
culpable member of the conspiracy, his lack of a criminal or violent history, and the
disparity of his sentence as compared to his coconspirators. We examine the substantive
reasonableness of the sentence under “the totality of the circumstances.” Gall v. United
States, 552 U.S. 38, 51 (2007). A sentence “within or below a properly calculated
Guidelines range is presumptively reasonable [on appeal].” United States v. Louthian,
756 F.3d 295, 306 (4th Cir. 2014). The defendant bears the burden to rebut this
presumption “by showing that the sentence is unreasonable when measured against the
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. . . § 3553(a) factors.” Id. In evaluating the sentence for an abuse of discretion, this
court “give[s] due deference to the [d]istrict [c]ourt’s reasoned and reasonable decision
that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 552 U.S. at 59-60.
We “can reverse a sentence only if it is unreasonable, even if the sentence would not have
been the choice of the appellate court.” United States v. Yooho Weon, 722 F.3d 583, 590
(4th Cir. 2013) (internal quotation marks omitted).
While the sentence of life is quite severe, in this case, the sentence was within the
Guidelines range. We hold that Flores has failed to overcome the presumption of
reasonableness applied to his sentence. Flores involved himself in an unusually
large-scale methamphetamine conspiracy, involving unusually high grade
methamphetamine that originated with a Mexican drug cartel. He supervised an assistant,
made threats, and carried firearms. While the Guidelines range was driven largely by the
drug weight, that fact further serves to demonstrate the scope and severity of the nature of
the offenses.
Regarding the shorter sentences of Flores’s coconspirators, while district courts
are to consider disparities in sentencing when imposing a sentence, see 18 U.S.C.
§ 3553(a)(6) (2012), we have expressed doubt whether “a defendant may . . . challenge a
sentence on the ground that a co-conspirator was sentenced differently.” United States v.
Goff, 907 F.2d 1441, 1446-47 (4th Cir. 1990) (collecting cases), superseded on other
grounds by USSG app. C amend. 508; see also United States v. Sierra-Villegas, 774 F.3d
1093, 1103 (6th Cir. 2014) (“[T]he district court may consider the defendant’s sentence
in comparison with that of co-defendants at sentencing, but need not do so; it is a matter
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of discretion.”). Section 3553(a)(6) is aimed primarily at eliminating national sentencing
inequity, not differences between the sentences of coconspirators. United States v.
Withers, 100 F.3 d 1142, 1149 (4th Cir. 1996); see also United States v. Simmons, 501
F.3d 620, 623-24 (6th Cir. 2007) (collecting cases). Moreover, unlike Flores, his
coconspirators accepted responsibility for the extent of their criminal behavior and
cooperated with the Government. Thus, disparities would be appropriate and expected.
We find no abuse of discretion because the district court considered the arguments
by both parties and rationally found that a life sentence was appropriate. While the court
might have imposed a lower sentence, the mere fact that the court did not consider the
mitigating circumstances worthy of a reduction does not render a sentence unreasonable.
Because there is a range of permissible outcomes for any given case, an appellate court
must resist the temptation to “pick and choose” among possible sentences and rather must
“defer to the district court’s judgment so long as it falls within the realm of these
rationally available choices.” United States v. McComb, 519 F.3d 1049, 1053 (10th Cir.
2007); see also United States v. Carter, 538 F.3d 784, 790 (7th Cir. 2008) (noting
substantive reasonableness “contemplates a range, not a point”).
Accordingly, we affirm. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
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