United States v. Carlos Lozano-Cordova

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 30, 2020
• Docket: 19-13300
• Status: Unpublished

Opinion

Case: 19-13300 Date Filed: 03/30/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13300 Non-Argument Calendar ________________________

D.C. Docket No. 8:16-cr-00521-MSS-AAS-3

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

CARLOS LOZANO-CORDOVA,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(March 30, 2020)

Before WILSON, LAGOA and HULL, Circuit Judges.

PER CURIAM: Case: 19-13300 Date Filed: 03/30/2020 Page: 2 of 5

Carlos Lozano-Cordova was sentenced to 120 months’ imprisonment—the

statutory mandatory minimum—for his conviction for conspiracy to possess five or

more kilograms of cocaine with intent to distribute while aboard a vessel, in

violation of 46 U.S.C. §§ 70503(a), 70506(a)–(b), and 21 U.S.C.

§ 960(b)(1)(B)(ii). On appeal, Lozano-Cordova first asserts that his sentence is

substantively unreasonable. The government asserts that this claim is barred by

Lozano-Cordova’s appeal waiver and, regardless, is meritless. Lozano-Cordova

then argues that his sentence is grossly disproportionate in violation of the Eighth

Amendment.

I.

“We review the validity of a sentence appeal waiver de novo.” United

States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). For an appeal waiver to

be effective, it must be made knowingly and voluntarily. United States v.

Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was

made knowingly and voluntarily, the government must show either (1) “the district

court specifically questioned the defendant” about the waiver during the plea

colloquy, or (2) the record makes clear “that the defendant otherwise understood

the full significance of the waiver.” Id. at 1351.

Here, the appeal waiver precludes Lozano-Cordova’s claim that his sentence

is substantively unreasonable. During the plea colloquy, the district court

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specifically questioned Lozano-Cordova about the appeal waiver, stating that “the

only ways that [he could] appeal [the] sentence” were if his sentence exceeded the

applicable guideline range, exceeded the maximum statutory penalty, violated the

Eighth Amendment, or was appealed by the government. Lozano-Cordova

affirmed that he understood. Accordingly, the waiver was made knowingly and

voluntarily. See Bushert, 997 F.2d at 1351. Even if the appeal waiver were

invalid, the sentence is not substantively unreasonable because the district court

properly imposed the statutory minimum sentence of 120 months. See United

States v. Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008) (concluding that the

district court lacked authority to sentence the defendant below the statutory

minimum based on its consideration of the 18 U.S.C. § 3553(a) factors).

II.

We review an Eighth Amendment claim of cruel and unusual punishment

not raised before the district court for plain error. United States v. Suarez, 893

F.3d 1330, 1335 (11th Cir. 2018). “Plain error review requires that there is an

error, it is plain, and it affects substantial rights.” Id.

“[T]he Eighth Amendment contains a narrow proportionality principle that

applies to noncapital sentences.” United States v. Bowers, 811 F.3d 412, 431 (11th

Cir. 2016) (alteration in original) (internal quotation marks omitted). “Generally,

sentences within the statutory limits are neither excessive, nor cruel and unusual

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under the Eighth Amendment,” as we afford “substantial deference” to Congress’s

“broad authority to determine the types and limits of punishments for crimes.” Id.

at 432 (internal quotation mark omitted). The mandatory nature of a non-capital

penalty is irrelevant for proportionality purposes. United States v. Farley, 607

F.3d 1294, 1343 (11th Cir. 2010). We have acknowledged that “successful Eighth

Amendment challenges in non-capital cases are exceedingly rare.” Suarez, 893

F.3d at 1336 (internal quotation mark omitted).

In examining an Eighth Amendment claim in a non-capital case, we follow a

two-part test. “First, we determine whether the sentence is grossly

disproportionate to the offense committed.” Id. (internal quotation mark omitted).

If it is, “we then consider sentences imposed on others convicted of the same

crime.” Id. When determining the seriousness of an offense, we consider the harm

caused by the type of crime in that case. Farley, 607 F.3d at 1344.

Lozano-Cordova’s Eighth Amendment claim is expressly exempted from his

appeal waiver. We review this claim for plain error because Lozano-Cordova did

not raise an Eighth Amendment objection to his sentence in district court. See

Suarez, 893 F.3d at 1335. Lozano-Cordova’s sentence does not violate the Eighth

Amendment because it is within the statutory limits, which suggests that it was not

excessive, see Bowers, 893 F.3d at 432, and because 120 months is not grossly

disproportionate for an offense involving 715 kilograms of cocaine. See Harmelin

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v. Michigan, 501 U.S. 957, 1002–04 (1991) (determining that a life sentence

without parole was not grossly disproportionate for a defendant convicted of

possessing 672 grams of cocaine). Accordingly, we affirm the district court.

AFFIRMED.