United States v. Crisanto Diego Trejos Ortiz

Opinion

Case: 12-10750 Date Filed: 01/09/2013 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-10750 Non-Argument Calendar ________________________

D.C. Docket No. 1:11-cr-20401-DMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRISANTO DIEGO TREJOS ORTIZ, a.k.a. Crisanto Diego Trejos-Ortiz,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

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

(January 9, 2013)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM: Case: 12-10750 Date Filed: 01/09/2013 Page: 2 of 4

Crisanto Diego Trejos Ortiz appeals his sentence of 180 months of

imprisonment, following his pleas of guilty to smuggling goods from the United

States, 18 U.S.C. §§ 554, 2, and possessing a firearm as a convicted felon, id.

§ 922(g)(1). Trejos Ortiz appeals the enhancement of his sentence for being a

manager of an organization that illegally exported components for firearms and the

reasonableness of his sentence. We affirm.

The district court did not abuse its discretion when it enhanced Trejos

Ortiz’s sentence for his role as a manager. A defendant is subject to a three-point

increase in his base offense level if he served as “a manager or supervisor (but not

an organizer or leader) and the criminal activity involved five or more participants

or was otherwise extensive.” United States Sentencing Guidelines Manual

§ 3B1.1(b) (Nov. 2011). The district court could determine Trejos Ortiz’s role

based on the facts in his presentence investigation report. See United States v.

Bennett, 472 F.3d 825, 832 (11th Cir. 2006). Although Trejos Ortiz objected to his

classification as a manager, at his sentencing hearing, he challenged only the “legal

issue” of how his conduct “compar[ed] . . . [to] the other conspirators that were

involved and the different roles of all of them.” Trejos Ortiz admitted, by

“fail[ing] to object to [the] allegations of fact in [his presentence report],” United

States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), that he provided currency,

shipping information, and storage locations for the organization; he rented a garage

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used to store and package components to export; and he gave instructions to other

members of the organization. Trejos Ortiz also admitted to facts establishing that

he had exercised “control over at least one other participant in the criminal

activity.” United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010). Trejos

Ortiz confessed to federal investigators that he directed David Loaiza to retrieve a

shipment of 27 receivers and gave Loaiza cash and an automobile to transport the

shipment. Trejos Ortiz argues that he was subordinate to Andres Campo, but that

does not absolve Trejos Ortiz for the logistical support he provided the

organization or his role in directing Loaiza to undertake activities that benefitted

the organization. See United States v. Jones, 933 F.2d 1541, 1546–47 (11th Cir.

1991).

The district court also did not abuse its discretion when it sentenced Trejos

Ortiz to a term of 120 months for his smuggling crime to run consecutively to a

term of 60 months for his firearm offense. At the request of the government, the

district court varied upward from Trejos Ortiz’s advisory guideline range of 87 to

108 months. The district court provided five reasons for its upward variance: (1)

Trejos Ortiz’s “actions contributed to and led to the death of cohort Erik

Comesana” or, “[a]t a minimum[,] [established that] he was an accessory after the

fact”; (2) the grouping of Trejos Ortiz’s offenses did not account for his illegal

possession of two firearms; (3) Trejos Ortiz “was involved . . . [in a sophisticated

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operation to] ship[] firearms to Colombia, a source country”; (4) he “used his

status as a DEA confidential informant . . . [to] stay[] in the country and . . . to

commit further crimes”; and (5) he had a “history of drug dealing and arms

trafficking and [had] consistently manipulated the justice system.” Trejos Ortiz

challenges the finding that he was involved with the murder, but we cannot say that

finding is clearly erroneous in the light of Trejos Ortiz’s admissions that he had

accompanied Comesana to lawyers’ offices, monitored the status of Comesana’s

cooperation with authorities for Campo, disposed of Comesana’s body, and

continued thereafter to participate in the organization. See United States v.

Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999). The district court

reasonably determined that an upward variance was necessary to address the

statutory purposes of sentencing. 18 U.S.C. § 3553(a). Trejos Ortiz had violated

the law repeatedly, twice entering the United States illegally, committed crimes of

escalating violence, and flagrantly disregarded the law by feigning cooperation

with authorities while attempting to convince third parties to dispose of

incriminating evidence. Trejos Ortiz’s sentence is reasonable.

We AFFIRM Trejos Ortiz’s sentence.