USA v. Walberto Cortes

Filing

Opinion issued by court as to Appellant Walberto Cuero Cortes. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13896
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00097-EAK-TBM-2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALBERTO CUERO CORTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 12, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM:

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Walberto Cuero Cortes pled guilty to conspiring to possess and possessing
with intent to distribute 5 kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation of the Maritime Drug
Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a), 70506(a)-(b), and 21
U.S.C. § 960(b)(1)(B)(ii). The district court imposed a 135-month sentence, at the
low-end of the advisory guidelines range of 135 to 168 months’ imprisonment. On
appeal, Cortes argues that his sentence was substantively unreasonable because the
district court failed to vary downward in order to avoid imposing disparate
sentences between himself and one of his codefendants, Edwin Darwin Quintero
Bravo (“Quintero Bravo”), who received a 120-month sentence. After review, we
affirm Cortes’s 135-month sentence.
I. BACKGROUND FACTS
A.

Offense Conduct
On February 23, 2017, the U.S. Coast Guard intercepted a vessel in

international waters off the coast of the Galapagos Islands. After boarding the
boat, Coast Guard officers recovered 46 bales of cocaine, totaling 1,100 kilograms
in weight. The Coast Guard officers interviewed and detained the crewmembers,
which included defendant Cortes, and (1) Quintero Bravo; (2) Luis Alfredo
Parrales Bravo (“Parrales Bravo”); and (3) Francisco Rodriguez Barajas
(“Barajas”).
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B.

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Indictment and Pleas
All of the crewmembers were charged together under the MDLEA with one

count of conspiring to possess with intent to distribute five kilograms or more of
cocaine while on board a vessel subject to the jurisdiction of the United States and
one count of possession with intent to distribute five kilograms or more of cocaine
while on board a vessel subject to the jurisdiction of the United States. The four
codefendants were indicted on March 7, 2017.
In May 2017, all four codefendants entered guilty pleas. Three of the
codefendants—Quintero Bravo, Barrajas, and defendant Cortes—pled guilty,
pursuant to written plea agreements, to the cocaine conspiracy count and, in
exchange, the government agreed to dismiss the cocaine possession count. In their
plea agreements, the three codefendants also agreed to cooperate with the
government, and the government agreed to consider each codefendant’s
cooperation and, if warranted, to file a motion recommending a sentence reduction
based on the codefendant’s substantial assistance. Codefendant Parrales Bravo, on
the other hand, pled guilty to both counts of the indictment and did so without the
benefit of a written plea agreement.
At their plea hearing, all four codefendants admitted that they had entered
into a plan to smuggle more than five kilograms of cocaine by sea and that the U.S.
Coast Guard had intercepted them in international waters on a vessel with
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multiples bales of cocaine, totaling in excess of five kilograms. The four
codefendants also all agreed that no crew member identified himself as the master
of the vessel, but that one crew member had said that the vessel had departed from
Ecuador.
C.

Sentencing of Defendant Cortes
At defendant Cortes’s sentencing, the district court, without objection, (1)

calculated defendant Cortes’s base offense level of 38, pursuant to US.S.G.
§ 2D1.1(c)(1), because his offense involved 1,100 kilograms of cocaine; (2)
decreased the offense level by 2 levels, pursuant to § 2D1.1(b)(17), because he met
the safety-valve criteria in § 5C1.2; and (3) decreased the offense level by another
3 levels, pursuant to § 3E1.1(a) and (b), for acceptance of responsibility, which
resulted in a total offense level of 33. With a total offense level of 33 and a
criminal history category of I, the district court determined that the advisory
guidelines range was 135 to 168 months’ imprisonment.
Defendant Cortes argued that he was “similarly situated” to codefendant
Quintero Bravo and asked for a downward variance to 120 months to avoid a
disparity with Quintero Bravo’s 120-month sentence. Defendant Cortes
maintained that he signed the plea agreement “thinking that [he was] going to get a
5K.”

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The government responded that a 135-month sentence was appropriate in
defendant Cortes’s case, especially given the large amount of cocaine found on the
vessel, and that any assistance defendant Cortes gave law enforcement was taken
into account in the three-level decrease in his offense level under U.S.S.G. § 3E1.1
for acceptance of responsibility. The district court agreed that 1,100 kilograms
was “a lot of kilograms.”
Defendant Cortes then argued that he should receive a 120-month sentence
because he was less culpable than Quintero Bravo, who had the GPS on the vessel.
Defense counsel also pointed out that defendant Cortes was deprived of a § 5K1.1
reduction merely because he was not the first to offer to cooperate, stating that
codefendant Barajas’s counsel “beat [him] by how many minutes. It’s just not fair,
but that’s the policy.” The government responded that the U.S. Attorney’s Office
in Tampa reserves § 5K1.1 motions, which, under 18 U.S.C. § 3553(e), can result
in sentences below the mandatory minimum, for the first defendant who offers to
cooperate and that other defendants who assist the government are appropriately
“compensated by [the safety-valve reduction in] the guidelines.”
The district court denied defendant Cortes’s request for a variance and
sentenced him to 135 months. The district court noted that the downward variance
in codefendant Quintero Bravo’s case for his cooperation “was justified,” that the

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quantity of cocaine involved was not to be minimized, and that the difference
between the two defendants’ sentences was 15 months.
II. GENERAL PRINCIPLES
We review the reasonableness of a sentence under the deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). We first ensure that the district court made no significant procedural error,
then examine whether the sentence was substantively reasonable in light of the
totality of the circumstances. Id. at 51, 128 S. Ct. at 597; see also United States v.
Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). 1 The party challenging the sentence
bears the burden to show that the sentence was unreasonable in light of the record
and the 18 U.S.C. § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010). 2 We will reverse only if “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

1

Cortes does not argue that his sentence is procedurally unreasonable.

2

The § 3553(a) factors include: (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; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
In imposing a particular sentence, one of the factors the district court
considers is the need to avoid unwarranted sentencing disparities.
18 U.S.C. § 3553(a)(6). The purpose of this factor is to avoid such disparities
“among defendants with similar records who have been found guilty of similar
criminal conduct.” United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir.
2009) (quotation marks omitted). Therefore, “[a] well-founded claim of disparity
. . . assumes that apples are being compared to apples.” Id. at 1101 (quotations
omitted); see also United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009)
(explaining that sentencing disparities are not “unwarranted” if the comparators are
not similarly situated). In United States v. Williams, 526 F.3d 1312, 1324 (11th
Cir. 2008), we concluded that codefendants who received disparate sentences were
not similarly situated where one of the defendants received a shorter sentence
because he had cooperated with the government.
III. CORTES’S SENTENCE
The district court did not abuse its discretion in imposing the 135-month
sentence. Cortes’s 135-month sentence was well-below the applicable statutory
maximum sentence of life under 21 U.S.C. § 960(b)(1)(B)(ii), and was at the low
end of the advisory guidelines range, both of which suggest the sentence was
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reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008);
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Moreover, we reject Cortes’s claim that the disparity between his sentence
and the sentence of his codefendant, Quintero Bravo, rendered Cortes’s sentence
substantively unreasonable. First, disparities between sentences are only one of the
factors a district court must consider in arriving at the appropriate sentence, and
here the district court explained that it did not want to minimize the 1,100
kilograms of cocaine involved, which relates to the seriousness of the offense,
another factor the district court must consider. See 18 U.S.C. § 3553(a)(2)(A).
The district court was within its discretion to give more weight to another factor—
such as making sure the sentence reflected the seriousness of the drug smuggling
venture—in making its sentencing decision. See United States v. Amedeo, 487
F.3d 823, 832 (11th Cir. 2007). This is particularly true where, as here, the
disparity between the sentences is small because, as this Court has explained, there
is “a range of reasonable sentences dictated by the facts of the case” from which
the district court can choose. See Irey, 612 F.3d at 1190 (quoting Pugh, 515 F.3d
at 1191).
Second, the district court determined that the 15-month difference between
Cortes’s 135-month sentence and Quintero Bravos’s 120-month sentence was
justified. The district court explained that Quintero Bravo received a downward
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variance because he provided information to the government that, but for the
“extraordinary circumstance” of his attorney’s five-day delay in making his
proffer, would have entitled him to a § 5K1.1 downward departure. After his
indictment, Cortes also offered to provide information to the government.
However, apart from accepting responsibility and admitting as part of his guilty
plea his own conduct in the cocaine smuggling scheme (for which he received a 3level reduction in his offense level), there is no actual evidence in the record that
Cortes himself provided information to the government that the government did
not already have. Stated another way, the district court found that Cortes was not
similarly situated with codefendant Quintero Bravo. See Docampo, 573 F.3d at
1102. Thus the 15-month disparity between the two codefendants’ sentences was
not “unwarranted” within the meaning of § 3553(a)(6). See Williams, 526 F.3d at
1312.
For these reasons, Cortes has not met his burden to show his 135-month
sentence is substantively unreasonable.
AFFIRMED.

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