United States v. Humberto Vega-Gutierrez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 1, 2020
• Docket: 19-13192
• Status: Unpublished

Opinion

Case: 19-13192 Date Filed: 04/01/2020 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13192 Non-Argument Calendar ________________________

D.C. Docket No. 1:15-cr-00178-RWS-LTW-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUMBERTO VEGA-GUTIERREZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(April 1, 2020)

Before NEWSOM, LAGOA and HULL, Circuit Judges.

PER CURIAM: Case: 19-13192 Date Filed: 04/01/2020 Page: 2 of 13

After pleading guilty, Humberto Vega-Gutierrez appeals his below-

guidelines-range sentence of 180 months’ imprisonment imposed for his various

drug-conspiracy, drug-possession, and firearm-possession offenses. On appeal,

Vega-Gutierrez challenges the substantive reasonableness of his total sentence.

After review, we affirm.

I. BACKGROUND

A. Offense Conduct 1

From early-2014 to mid-2015, defendant Vega-Gutierrez, who was 69 years

old at the time, participated in a methamphetamine-trafficking scheme with his two

codefendants, Israel Vega-Perez and Anthony Robertson. During this time period,

law enforcement observed and documented six transactions. Each transaction

generally followed the same pattern—codefendant Vega-Perez negotiated a

methamphetamine deal with a buyer and coordinated a meeting between the buyer

and defendant Vega-Gutierrez, who then conducted the transaction at one of his

three residences or, in one instance, a gas station. Codefendant Robertson was a

recurring buyer in the scheme.

1 The record of the offense conduct is based on the unobjected-to facts contained in Vega- Gutierrez’s presentence investigation report and the prosecution’s recitation of its factual basis supporting the charges at the change-of-plea hearing. 2 Case: 19-13192 Date Filed: 04/01/2020 Page: 3 of 13

In the six documented drug transactions, defendant Vega-Gutierrez supplied

the buyers these amounts of methamphetamine: (1) 200.3 grams during a January

2014 sale; (2) 988.6 grams during a January 2014 sale with codefendant

Robertson, who previously had purchased about three kilograms; (3) 676.2 grams

during a March 2014 sale; (4) 99 grams during an April 2014 sale; (5) 28.35 grams

during another April 2014 sale; and (6) 27.3 grams during a July 2015 controlled

buy.

Upon defendant Vega-Gutierrez’s arrest and a search of one of his

residences, law enforcement officers discovered 233.8 grams of methamphetamine,

$4,322 in cash, two digital scales, three cellphones, a device that detects

counterfeit bills, and three pistols, two of which were loaded. All in all, Vega-

Gutierrez’s six drug sales and the drugs found at the residence yielded an

approximate total of 5.22 kilograms (5,219.35 grams) of methamphetamine.

B. Indictment and Psychiatric Commitment

Vega-Gutierrez was indicted on these charges: (1) one count of conspiracy

to possess with intent to distribute at least 50 grams of methamphetamine, in

violation of 21 U.S.C. §§ 841(a), (b)(1)(A) and 846 (Count 1); (2) two counts of

distributing at least 50 grams of methamphetamine, in violation of § 841(a),

(b)(1)(A), and 18 U.S.C. § 2 (Counts 2-3); (3) two counts of possessing with intent

to distribute at least 50 grams of methamphetamine, in violation of §§ 841(a),

3 Case: 19-13192 Date Filed: 04/01/2020 Page: 4 of 13

(b)(1)(A), and 2 (Counts 4-5); and (4) one count of possessing a firearm as an alien

unlawfully present in the United States, in violation of 18 U.S.C. §§ 922(g)(5) and

924(a)(2) (Count 6). Codefendant Vega-Perez was also charged in Counts 1

through 5, and codefendant Robertson was charged in Counts 1 and 4.

Defendant Vega-Gutierrez initially pled not guilty and moved the court to

order a psychiatric examination and a hearing to determine whether he was

competent to stand trial. Due to concerns regarding Vega-Gutierrez’s deficits in

cognition, memory, and communication, the district court granted his motion for a

psychiatric examination, stayed his case, and ordered him committed for treatment.

After about nine months of commitment, Vega-Gutierrez was re-examined and

adjudicated competent to stand trial.

Together, Vega-Gutierrez’s various psychiatric examinations showed that he

had suffered from: (1) a previous concussion; (2) concussion-related symptoms,

including short-term memory loss, dementia, dizziness, disorientation, hearing

loss, blurry vision, loss of speech, and hearing voices and sounds; (3) borderline

intellectual functioning; (4) significant intellectual deficits in verbal language,

cognitive efficiency, and thinking ability; (5) cognitive disorder, not otherwise

specified; and (6) mental-health diagnoses of generalized anxiety disorder, major

depressive disorder - moderate, and somatic symptom disorder. These

examinations also revealed that Vega-Gutierrez was from Mexico, grew up in

4 Case: 19-13192 Date Filed: 04/01/2020 Page: 5 of 13

poverty, had almost no formal education, was unfamiliar with the U.S. justice

system, spoke no English, and even had difficulty effectively communicating in

Spanish.2

C. Guilty Plea

In February 2019, after being adjudicated competent to stand trial,

Vega-Gutierrez pled guilty to Counts 1, 2, 3, 5, and 6, without the benefit of a plea

agreement. At the change-of-plea hearing, the government provided the above

factual basis supporting the charges against Vega-Gutierrez. While

Vega-Gutierrez initially indicated that he could not remember the factual details of

his offense conduct, he confirmed that he had worked with others to distribute

methamphetamine. Moreover, Vega-Gutierrez’s attorney stated that Vega-

Gutierrez was not contesting the government’s evidence and recognized that the

government had the necessary facts and evidence to convict him. The district court

characterized Vega-Gutierrez’s plea as an Alford-type3 plea. The district court

2 The forensic psychiatrist, who conducted Vega-Gutierrez’s final examination, opined that the extent of Vega-Gutierrez’s cognitive, memory, and communication deficits were likely less severe than reported given his abilities: (1) to function in competency restoration classes; (2) to talk on the phone with his friends and family without significant issues; (3) to communicate directly with the Spanish interpreter; and (4) to remember several important details when asked. 3 North Carolina v. Alford, 400 U.S. 25, 34-38, 91 S. Ct. 160, 166-68 (1970) (holding that a defendant may voluntarily, knowingly, and understandingly plead guilty and consent to be sentenced even if he is unwilling to admit to his participation in the crime when he is represented by competent counsel, he intelligently concludes that his interests require a guilty plea, and the record strongly evidences his guilt). 5 Case: 19-13192 Date Filed: 04/01/2020 Page: 6 of 13

confirmed with Vega-Gutierrez’s attorney that: (1) she was comfortable with

Vega-Gutierrez’s acceptance of the plea despite his memory issues;

(2) Vega-Gutierrez wished to plead guilty; and (3) he understood the charges and

evidence against him. The district court found that there was a sufficient factual

basis supporting the guilty plea, accepted Vega-Gutierrez’s knowing and voluntary

plea, and adjudicated him guilty.4

D. Presentence Investigation Report (“PSI”)

Vega-Gutierrez’s PSI grouped his convictions and assigned him a base

offense level of 36 because his offenses involved between 30,000 and 90,000

kilograms of converted drug weight. Specifically, Vega-Gutierrez’s involvement

with 5.22 kilograms (5,219.35 grams) of methamphetamine equated to 48,710.3

kilograms of converted drug weight. His base offense level of 36 was:

(1) increased by two levels because he possessed several firearms; (2) increased by

two levels because he maintained at least one residence for the purpose of

manufacturing or distributing a controlled substance; and (3) decreased by three

levels because he accepted responsibility, which resulted in a total offense level of

37. Vega-Gutierrez’s total offense level of 37 and criminal history category of I

yielded an advisory guidelines range of 210 to 262 months’ imprisonment.

4 In this appeal, Vega-Gutierrez does not challenge his guilty plea. 6 Case: 19-13192 Date Filed: 04/01/2020 Page: 7 of 13

E. Sentencing Hearing

At the sentencing hearing, the district court confirmed that there were no

unresolved PSI objections and adopted the PSI’s factual findings, guidelines

calculations, and 210-to-262-month advisory guidelines range. 5 The government

argued that a 210-month sentence was reasonable because: (1) Vega-Gutierrez was

69 years old at the time of the offenses and should have known better; (2) he

served as a supplier in the methamphetamine-trafficking conspiracy; (3) he

supplied methamphetamine to at least six individuals during the relevant time

frame; (4) methamphetamine was a serious and dangerous drug; (5) he used a

number of residences for distribution; (6) he possessed drugs, cash, drug

paraphernalia, and loaded firearms at one of those residences; and (7) his less

culpable codefendant Robertson, who also had health issues, received a 160-month

sentence.6

Defendant Vega-Gutierrez asked the district court to impose a below-

guidelines-range sentence of 120 months, which was the statutory mandatory

minimum term of imprisonment. Vega-Gutierrez argued that he played a lesser

role in the offenses because, while he supplied drugs to buyers, he did so only

5 Vega-Gutierrez’s PSI objections, none of which are relevant to this appeal, were resolved by the probation officer prior to the sentencing hearing. 6 Robertson pled guilty to Count 1 and was sentenced to 160 months’ imprisonment. 7 Case: 19-13192 Date Filed: 04/01/2020 Page: 8 of 13

under codefendant Vega-Perez’s direction and lacked the cognitive ability to be a

drug supplier on his own. Next, Vega-Gutierrez highlighted his poor health

condition and his intellectual, memory, and communication deficits.

Vega-Gutierrez also contended that he was unlikely to reoffend given his older

age, lack of criminal history, impressionable role in the offense conduct, and desire

to return to his family. Further, Vega-Gutierrez compared himself to codefendant

Robertson, who was not cognitively impaired and was a criminal history category

V.

The government responded that defendant Vega-Gutierrez remained actively

involved in the drug distribution even after his 2014 concussion, that his difficulty

in communicating in English was immaterial because codefendant Vega-Perez

acted as an interpreter during transactions with English-speaking buyers, and that

Vega-Gutierrez likely would continue to receive treatment for his various

conditions while in prison.

Before pronouncing its sentence, the district court emphasized that Vega-

Gutierrez’s offenses were “very serious” because he was involved with “a fairly

substantial distribution of drugs,” those drugs harmed its users, and the drug trade

caused law enforcement issues. The district court recognized that several of Vega-

Gutierrez’s history and characteristics were mitigating, including his older age,

various mental and physical health conditions, lack of criminal history, and

8 Case: 19-13192 Date Filed: 04/01/2020 Page: 9 of 13

likelihood of deportation from the United States upon the completion of his

sentence. As to specific deterrence, the district court sought to impose a sentence

that would last until Vega-Gutierrez was at a point in his life when he would be

much less likely to reoffend. The district court also briefly acknowledged the goal

of general deterrence. As to sentencing disparities, the district court considered

codefendant Robertson’s 160-month sentence, which was below his 188-to-235-

month advisory guidelines range and accounted for “his health issues and other

factors.”

While taking into account the mitigating factors of Vega-Gutierrez’s mental

and physical health, age, and likelihood of deportation, the district court stated that

Vega-Gutierrez’s sentence should be proportionate to his higher degree of

culpability as compared to codefendant Robertson. Accordingly, the district court

varied downward from the 210-to-262-month advisory guidelines range and

sentenced defendant Vega-Gutierrez to a total 180-month sentence of

imprisonment—which consisted of concurrent terms of 180 months as to Counts 1,

2, 3, and 5, and 120 months as to Count 6—followed by a total of five years’

supervised release. Vega-Gutierrez and the government both objected to the

sentence’s substantive reasonableness.

This is Vega-Gutierrez’s appeal.

9 Case: 19-13192 Date Filed: 04/01/2020 Page: 10 of 13

II. DISCUSSION

Defendant Vega-Gutierrez argues that his below-guidelines-range sentence

of 180 months is substantively unreasonable. This Court reviews the

reasonableness of a sentence under a deferential abuse-of-discretion standard

employing a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th

Cir. 2008). First, we examine whether the district court committed any significant

procedural error. Id. Because Vega-Gutierrez claims no procedural error, we

move to the second step of determining whether his sentence is substantively

reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the

circumstances.7 Id. The party challenging the sentence—here, Vega-Gutierrez—

carries the burden of showing that the sentence is unreasonable. Id. at 1189.

We will vacate a sentence as substantively unreasonable 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) (quotation marks

omitted). While the district court must consider all the applicable § 3553(a)

7 The § 3553(a) factors include, of relevance: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public from the defendant’s future crimes; (5) the advisory guidelines range; and (6) the need to avoid unwarranted sentence disparities. 18 U.S.C. § 3553(a)(1)-(2), (4), (6). 10 Case: 19-13192 Date Filed: 04/01/2020 Page: 11 of 13

factors, it has wide discretion in deciding how much weight to assign to any

particular sentencing factor. United States v. Rosales-Bruno, 789 F.3d 1249, 1254

(11th Cir. 2015). In fact, a district court is entitled to attach great weight to one

§ 3553(a) factor over others. Id.

When the district court selects a sentence that falls within the advisory

guidelines range, we generally expect the chosen sentence to be a reasonable one.

United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). Further, “[a]

sentence imposed well below the statutory maximum penalty is an[other] indicator

of a reasonable sentence.” United States v. Stanley, 739 F.3d 633, 656 (11th Cir.

2014).

Here, Vega-Gutierrez’s 180-month sentence falls 30 months below the

bottom of his advisory guidelines range of 210 to 262 months’ imprisonment. See

Docampo, 573 F.3d at 1101. Vega-Gutierrez’s below-guidelines-range sentence is

also substantially below the statutory maximum penalty of life imprisonment for

Counts 1, 2, 3, and 5. See 21 U.S.C. § 841(b)(1)(A)(viii) (providing a statutory

maximum term of life imprisonment for a violation of § 841(a) involving 50 grams

or more of methamphetamine); Stanley, 739 F.3d at 656. Nevertheless, Vega-

Gutierrez argues that his sentence is substantively unreasonable because the district

court failed to properly consider his older age, mental and physical health

conditions, minimal education, difficulty communicating in English, lack of

11 Case: 19-13192 Date Filed: 04/01/2020 Page: 12 of 13

criminal history, and lesser role as a supplier working under codefendant Vega-

Perez’s leadership and direction.

Contrary to Vega-Gutierrez’s contention, all of these circumstances were

discussed during the sentencing hearing, and the district court explicitly deemed as

mitigating factors Vega-Gutierrez’s older age, mental and physical health

conditions, and lack of criminal history, and departed 30 months downward from

his advisory guidelines range for those reasons. See 18 U.S.C. § 3553(a)(1). The

district court was well within its substantial discretion to weigh less heavily Vega-

Gutierrez’s remaining concerns and to weigh more heavily: (1) the seriousness of

his drug-trafficking offenses, which involved approximately 5.22 kilograms

(5,219.35 grams) of methamphetamine, a drug that harms its users and poses law

enforcement issues; (2) Vega-Gutierrez’s significant role as a supplier within the

drug-trafficking offenses; and (3) avoiding any unwarranted sentencing disparity

between him and his less-culpable codefendant Robertson, who was a buyer rather

than a supplier and received a 180-month sentence. See id. § 3553(a)(1)-(2), (6);

Rosales-Bruno, 789 F.3d at 1254. Moreover, the district court did not err when it

focused on avoiding any unwarranted sentencing disparity solely between

defendant Vega-Gutierrez and codefendant Robertson, and in not considering

codefendant Vega-Perez because codefendant Vega-Perez had yet to be

12 Case: 19-13192 Date Filed: 04/01/2020 Page: 13 of 13

sentenced.8 See United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009)

(explaining that there is no unwarranted sentencing disparity between a convicted

and sentenced defendant and a codefendant who, for example, has yet to be

sentenced).

Therefore, Vega-Gutierrez has not shown 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 [this]

case.” See Irey, 612 F.3d at 1190 (quotation marks omitted). Because Vega-

Gutierrez has not shown that his sentence is substantively unreasonable, we affirm

his 180-month sentence.

AFFIRMED.

8 In any event, in late February 2020, after pleading guilty to Count 1, codefendant Vega- Perez was sentenced to 210 months’ imprisonment, which was 30 months higher than defendant Vega-Gutierrez’s sentence. 13