United States v. Pablo Ortega ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3772
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Pablo Ortega
lllllllllllllllllllll Defendant - Appellant
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No. 16-3777
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Pablo Ortega
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: September 21, 2017
Filed: November 28, 2017
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
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PER CURIAM.
Pablo Ortega was serving a term of supervised release when he was arrested
for possessing methamphetamine with intent to distribute. The district court1 revoked
his supervised release and sentenced him to 60 months’ imprisonment for violating
the conditions of his release. Ortega pleaded guilty to possession with intent to
distribute a mixture or substance containing five grams or more of actual (pure)
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and was
sentenced to eighty-seven months’ imprisonment.
Ortega challenges his revocation sentence, arguing that the court failed to
explain its reasoning and imposed a substantively unreasonable sentence. He argues
that the district court erred in calculating the drug quantity attributable to him and in
imposing Global Positioning System (GPS) monitoring as a special condition of
supervised release. We affirm.
Ortega was convicted in 2001 of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(b)(1)(A). He was sentenced to 188
months’ imprisonment, followed by a five-year term of supervised release, which
began to run in December 2014.
In October 2015, the United States Probation Office received information that
Ortega was involved in illegal drug activity and was associating with felons. Based
1
The Honorable Linda R. Reade, then Chief Judge, United States District Court
for the Northern District of Iowa.
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on this information, officers searched Ortega’s residence, where they discovered “ice”
methamphetamine, along with car keys registered to known felons.2
The Probation Office petitioned to revoke Ortega’s term of supervised release.
After being indicted on the above-described federal offenses, Ortega pleaded guilty
to possession with intent to distribute 35.28 grams of a mixture or substance
containing five grams or more of actual (pure) methamphetamine. Laboratory
analysis of the methamphetamine determined the substance was between 93.9% and
100% pure.
The district court held a joint revocation and sentencing hearing. With respect
to the revocation, Ortega admitted that he had failed to participate in urinalysis
testing, that he had associated with a felon or person engaged in criminal activity, that
he had possessed a controlled substance and that he had committed the drug-law
violation. Because Ortega’s possession with intent to distribute constituted a Grade
A violation, revocation was mandatory. See U.S.S.G. § 7B1.3(a)(1) (stating “[u]pon
a finding of a Grade A or Grade B violation, the court shall revoke probation or
supervised release”). The government requested the five-year statutory maximum
term of imprisonment. See 18 U.S.C. § 3583(e)(3). Defense counsel requested a
sentence within the Guidelines range of 30 to 37 months’ imprisonment. As set forth
above, the district court imposed a sentence of 60 months’ imprisonment.
With respect to the methamphetamine offense, the presentence report
recommended that electronic monitoring be imposed as a condition of supervised
release and attributed 33.13 grams of actual methamphetamine to Ortega (35.28
grams x 93.9% = 33.13 grams of actual methamphetamine), resulting in a base
2
“‘Ice’ is a purer, more potent form of methamphetamine.” United States v.
Walker, 688 F.3d 416, 426 n.2 (8th Cir. 2012). The United States Sentencing
Guidelines (Guidelines) define “ice” as “a mixture or substance containing d-
methamphetamine hydrochloride of at least 80% purity.” U.S.S.G. § 2D1.1(c) n.C.
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offense level of 26. See U.S.S.G. § 2D1.1(c)(7) (at least twenty grams but less than
thirty-five grams of methamphetamine (actual)). The government objected to this
calculation, arguing that for sentencing purposes the drug quantity used should be
35.28 grams of “ice” methamphetamine, equating to a base offense level of 28. See
U.S.S.G. § 2D1.1(c)(6) (at least thirty-five grams but less than fifty grams of “ice”).
Ortega agreed with the Probation Office’s drug quantity calculation, but argued that
he should not be placed on electronic monitoring during his term of supervised
release.
A Probation Officer testified that Ortega had written two letters that revealed
the identity of a confidential informant who had incriminated Ortega. The district
court rejected the government’s argument that Ortega’s disclosure of the informant’s
identity constituted an obstruction of justice and thus did not apply the requested
offense-level enhancement.
The district court determined that Ortega’s base offense level was 28 based on
the total grams of “ice” methamphetamine. After reducing the base offense level by
three for Ortega’s acceptance of responsibility, see U.S.S.G. § 2E1.1, the district court
found that Ortega’s total offense level was 25, resulting in an advisory Guidelines
sentencing range of 70 to 87 months.
The district court sentenced Ortega to 87 months’ imprisonment, to run
consecutively to the revocation sentence. The court also imposed a five-year term of
supervised release, which included GPS monitoring as a special condition. In
reaching this decision, the district court considered Ortega’s age, education,
dependents, limited employment, and the eighteen disciplinary reports Ortega had
received while incarcerated. It found Ortega to be a recidivist drug dealer, noting that
he now had two federal convictions for drug distribution. The court further found
that Ortega’s two letters “basically out[ed] an informant and potentially invit[ed]
retaliation against her.” It also took into account the reported threat to a federal judge
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in the underlying case in which Ortega was subjected to GPS monitoring while on
supervised release.
Revocation Sentence
Ortega contends that the district court committed procedural error by failing
to adequately explain its reasoning for the revocation sentence. “We review a district
court’s revocation sentencing decisions using the same standards that we apply to
initial sentencing decisions.” United States v. Miller, 557 F.3d 910, 915-16 (8th Cir.
2009) (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)). “A district
court is not required to make specific findings; all that is generally required to satisfy
the appellate court is evidence that the district court was aware of the relevant
factors.” United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008). When its
sentence varies from the advisory Guidelines range, we give “due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall v. United States, 552 U.S. 38, 51 (2007).
Given Ortega’s failure to object to the district court’s allegedly inadequate
explanation of its reasons for the revocation sentence, we review for plain error.
Miller, 557 F.3d at 916. In addition to the earlier set-forth conditions, the district
court noted that Ortega had had one disciplinary report while staying at a residential
facility center. The court went on to explain that “[a]fter considering the 3553(a)
factors of Title 18 that apply in a revocation situation, this is a serious violation of
trust, a serious new law violation. Clearly, Mr. Ortega is at a high risk to recidivate.”
It ultimately concluded that GPS monitoring would not “involve any greater
deprivation of liberty than necessary to afford deterrence and protect the public.” It
is clear from these comments that the district court was aware of and considered the
relevant sentencing factors and that it thus committed no error, plain or otherwise, in
varying from the advisory Guidelines sentencing range.
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Ortega’s argument that his revocation sentence is substantively unreasonable
because it is greater than necessary to satisfy the sentencing goals of 18 U.S.C. §
3553(a) fails in light of his multiple violations of his conditions of supervised release,
his new drug distribution offense, his high risk of recidivism, and his history of
noncompliance.
Drug Quantity
Ortega contends the district court erred in determining that his base offense
level was 28. We review the district court’s application of the Guidelines de novo.
United States v. Miller, 511 F.3d 821, 823 (8th Cir. 2008). “The district court’s drug
quantity and identity determinations are factual findings, which we review ‘for clear
error, applying the preponderance-of-the-evidence standard.’” United States v.
Walker, 688 F.3d 416, 420 (8th Cir. 2012) (quoting United States v. Turner, 603 F.3d
468, 471 (8th Cir. 2010)).
The Guidelines permit two different methods for determining a defendant’s
base offense level in cases involving methamphetamine. United States v. Fairchild,
189 F.3d 769, 778 (8th Cir. 1999); see United States v. Garcia-Panama, 432 F. App’x
641, 643 n.2 (8th Cir. 2011) (unpublished) (per curiam). The government may
perform a purity determination by multiplying the percentage of pure
methamphetamine by the total amount of the mixture to get the “actual” amount of
methamphetamine. United States v. Houston, 338 F.3d 876, 879 (8th Cir. 2003).
Alternatively, the government is allowed to apply the entire weight of any mixture or
substance containing a detectable amount of methamphetamine. Fairchild, 189 F.3d
at 778-79; see also U.S.S.G. § 2D1.1 n.A. Stated differently, under the second
method, “‘drug quantity under the guidelines includes the entire weight or volume of
any mixture containing a detectable amount of controlled substance without regard
to purity or concentration.’” United States v. Ramos, 814 F.3d 910, 920 (8th Cir.
2016) (quoting United States v. Stewart, 761 F.3d 993, 1001 (9th Cir. 2014)). The
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Guidelines instruct the district court to use whichever method produces a higher base
offense level. U.S.S.G. § 2D1.1(a); see Garcia-Panama, 432 F. App’x at 643 n.2.
Ortega concedes that the 35.28 grams of methamphetamine found at his
residence was 93.9% pure. The mixture therefore falls under the Guidelines
definition of “ice.” See U.S.S.G. § 2D1.1(c) n.C. Accordingly, the district court was
required to choose to either apply the actual weight of the methamphetamine found
at Ortega’s residence or the weight of the entire “ice” substance or mixture,
depending on which determination would produce a higher base offense level.
Because the 35.28 grams of “ice” established a based offense level of 28 and the
33.13 grams of actual methamphetamine established a base offense level of 26, the
district court correctly chose to use the entire weight of the “ice” methamphetamine
mixture in determining the drug quantity.
Electronic Monitoring
Ortega first argues that the district court procedurally erred by relying on the
contested fact that Ortega had threatened a federal district court judge. Assuming that
Ortega has preserved this claim of error, we conclude that it is without merit. As we
read the record, the district court made no specific finding that such a threat had been
made, saying only that “[w]e have to keep in mind that there was a threat reported
against [the judge] in the underlying case that you were on supervised release for.”
Ortega alternatively argues that the district court abused its discretion in
imposing GPS monitoring as a special condition of his supervised release. He
contends that without evidence that he had attempted to act on any threats, GPS
monitoring is not necessary and that any safety concerns could have been addressed
by including a “no contact” condition.
The district court has “wide discretion in imposing supervised release
conditions.” United States v. Jorge-Salgado, 520 F.3d 840, 842 (8th Cir. 2008)
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(internal citations omitted). Conditions imposed by the district court, however, must
be reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a), and
“involve[] no greater deprivation of liberty than is reasonably necessary” for the
purposes identified in § 3553(a). 18 U.S.C. § 3583(d)(2); see also United States v.
Ringgenberg, 494 F. App’x 685, 685 (8th Cir. 2012) (unpublished) (per curiam).
Relevant factors that the court may consider are the history and characteristics of the
defendant and the protection of the public from further crimes of the defendant. 18
U.S.C. § 3553(a)(1), (a)(2)(C).
In light of Ortega’s above-recounted history and characteristics, we conclude
that the district court did not abuse its discretion in imposing GPS monitoring as a
condition of supervised release. Given that history and those characteristics, it was
reasonable for the court to doubt whether Ortega would comply with a no contact
order and to conclude that the requirement of GPS monitoring was necessary to
ensure the safety of others.
The judgment is affirmed.
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