United States v. Alejandro Acevedo Luna

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 20, 2023
• Docket: 23-10119
• Status: Unpublished

Opinion

USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 1 of 8

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit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 ____________________ USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 2 of 8

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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, USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 3 of 8

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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 USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 4 of 8

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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 USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 5 of 8

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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 USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 6 of 8

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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). USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 7 of 8

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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 USCA11 Case: 23-10119 Document: 46-1 Date Filed: 12/20/2023 Page: 8 of 8

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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.