FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________ September 14, 2018
Elisabeth A. Shumaker
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v. No. 17-3256
(D.C. No. 6:17-CR-10035-EFM-3)
ALEX QUINTANA-TORRES, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
Defendant Alex Quintana-Torres pleaded guilty, without benefit of a plea
agreement, to possessing with intent to distribute methamphetamine and heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The district court sentenced
Quintana-Torres to a term of imprisonment of 180 months. Quintana-Torres now
appeals, arguing that the sentence imposed is substantively unreasonable. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, we reject Quintana-Torres’s argument and
affirm the judgment of the district court.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
On January 16, 2017, Quintana-Torres was arrested at a truck stop in Oakley,
Kansas. A search of the vehicle that Quintana-Torres was driving produced 6.11
kilograms of actual methamphetamine. A search of a second vehicle that was
associated with Quintana-Torres produced two bundles of heroin with a total
combined weight of 2,221.86 grams.
On February 28, 2017, a federal grand jury returned a two-count indictment
charging Quintana-Torres and two other individuals with possession with intent to
distribute at least fifty grams or more of actual methamphetamine, and at least one
hundred grams or more of a mixture or substance containing a detectable amount of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
On September 5, 2017, Quintana-Torres entered a plea of guilty to both counts
alleged in the indictment. In doing so, Quintana-Torres acknowledged that on
January 16, 2017, he and other individuals were arrested in Oakley, Kansas, while
transporting heroin and methamphetamine from Las Vegas, Nevada, to Ohio. ROA,
Vol. 1 at 13.
The probation office prepared a presentence investigation report (PSR).
Because the offenses of conviction “involved two different drug types,” the PSR
converted the drug quantities “to their equivalent weights in marijuana.” ROA, Vol.
2 at 12. Based upon “a quantity of marijuana equivalent to 124,421.86 kilograms,”
the PSR applied a base offense level of 38. Id. After applying two downward
adjustments for acceptance of responsibility, the PSR arrived at a total offense level
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of 35. Id. The PSR in turn arrived at a total criminal history score of one—which
was based on a 2015 Nevada state conviction for driving under the influence—and a
criminal history category of I. Id. at 13. Together, the total offense level and
criminal history category resulted in an advisory Guidelines sentencing range of 168
to 210 months’ imprisonment. Id. at 23. The PSR also noted that the statutory
minimum term of imprisonment was ten years. Id.
Quintana-Torres filed a sentencing memorandum asking the district court to
vary downward from the advisory Guidelines sentencing range and impose a term of
imprisonment of 120 months. ROA, Vol. 1 at 22. In support of this request,
Quintana-Torres noted the following:
his criminal history did not involve any violent conduct, “with the
exception of a battery arrest involving a male who was involved with
his then girlfriend,” and his defense was that “he was simply defending
himself in that incident”;
he had “no history of any firearm or other weapon offenses”;
“he ha[d] no other drug offenses, nor d[id] he live the lifestyle of [a]
drug kingpin”;
his “parents [we]re elderly” and “[h]e ha[d] a 7-year-old daughter . . .
with whom he ha[d] a good relationship”;
“[h]is employment history demonstrate[d] an ability to obtain good
employment as a cook in fine restaurants,” and “[h]e also is trained in
auto mechanics and as a medical assistant”;
he was “a methamphetamine addict” and “[t]his addiction ha[d] cost
him jobs, an army career, family relationships, and . . . his freedom”;
“[s]ince being re-arrested after his pretrial release he ha[d] participated
in AA and NA meetings at Butler County Jail”;
“there [wa]s nothing to suggest from [the PSR] that he was anything but
a transporter of illegal narcotics” and “no indication that he knew how
much narcotics were being transported nor the quality of the narcotics
being transported”; and
“while not a minor participant, he did not profit from the crime in the
manner the major transactional players would have.”
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Id. at 21. Quintana-Torres argued that, in light of all these factors, “[a] ten-
year sentence w[ould] reflect the seriousness of the offense, respect for the law, and
just punishment.” Id. at 22. He also argued that “[a] ten-year sentence w[ould]
certainly provide adequate deterrence.” Id. Lastly, he argued that “[a] ten-year
sentence, with drug treatment and removal from drugs, should give him the incentive
and tools to remain drug free.” Id.
The government filed a response in opposition to Quintana-Torres’s sentencing
memorandum. The government began by asserting that, “although the defendant pled
guilty to the two counts of the Indictment, he has been consistent in minimizing his
knowledge and culpability in the matter.” Id. at 26. In particular, the government
noted that Quintana-Torres, in contrast to his co-defendants, “lied to the [arresting]
officers” regarding his knowledge of and involvement with the drugs and
participants. Id. The government further asserted that “[t]he facts derived from
police reports and interviews of other individuals involved in” the offense indicated
that it was Quintana-Torres who was responsible for “the initial planning, recruiting
of other individuals (including children), hiding and packing the drugs in attempt to
hide them from law enforcement view[,] as well as directing others in their
[respective] roles in the transport of the narcotics.” Id. at 27. In addition, the
government noted that Quintana-Torres, while on pretrial release, “failed to check in
as required by his pretrial release conditions,” “left his residence prior to his
approved exit time,” and “received a citation for battery against his girlfriend.” Id. at
28. Lastly, the government noted that Quintana-Torres’s “bond was subsequently
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revoked.” Id. In conclusion, the government argued that “a guideline sentence [wa]s
appropriate” for Quintana-Torres. Id.
Quintana-Torres’s sentencing hearing was held on November 20, 2017.
Defense counsel conceded that “[p]erhaps [Quintana-Torres]” and an unindicted
individual “helped get some people together to transport drugs at the behest of
another person, who was apparently distributing or, actually, selling drugs to a
buyer.” ROA, Vol. 3 at 8. But defense counsel argued that there was “no indication
from anything in the [PSR] that [Quintana-Torres] was the seller or the purchaser of
drugs.” Id. The district court, in turn, noted that among the factors it considered to
be relevant in deciding upon a sentence for Quintana-Torres were his “relative youth”
and “the extremely large quantities of drugs in this case.” Id. at 20. The district
court found it was “most likely true” that Quintana-Torres was not aware “of either
the quantity nor the quality or purity of the drugs,” but concluded that this was “not
determinative under the sentencing factors.” Id. Taking into account the fact that
Quintana-Torres was involved in transporting two types of drugs, and also taking into
account “the quality” and “quantity of drugs,” the district court concluded that
“[n]either a statutory minimum, nor even a low-end guideline sentence” was
sufficient in its view to satisfy purposes set forth in 18 U.S.C. § 3553(a)(2). Id. at
21–22. Instead, the district court concluded that “a mid-tier guideline sentence [wa]s
most appropriate.” Id. at 21. The district court ultimately sentenced Quintana-Torres
to “a term of 180 months on each of Counts 1 and Count 2 of the [i]ndictment, those
terms to run concurrently with each other, for a controlling term of 180 months.” Id.
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at 24. The district court also imposed a five-year term of supervised release “on each
of Counts 1 and 2, with those terms also running concurrent[,] for a controlling term
of five years of supervision.” Id.
Final judgment was entered on November 21, 2017. Quintana-Torres filed a
notice of appeal on November 29, 2017.
II
Quintana-Torres asserts a single issue on appeal: that the 180-month sentence
imposed by the district court is substantively unreasonable. In reviewing this claim,
“we apply the abuse-of-discretion standard.” United States v. Ibanez, 893 F.3d 1218,
1219 (10th Cir. 2018). “Under this standard, we can reverse only if the [180-month]
sentence was arbitrary, capricious, whimsical, or manifestly unreasonable.” Id.
“When evaluating the substantive reasonableness of a sentence, we afford substantial
deference to the district court, and determine whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” United States v. Gieswein, 887 F.3d 1054, 1064 (10th Cir.)
(quotations omitted), petition for cert. filed, — U.S. — (July 27, 2018) (No. 18-
5538). Further, where, as here, the sentence “fell within the applicable guideline
range,” we must “presume that the sentence was reasonable.” Ibanez, 893 F.3d at
1219. “To rebut this presumption, the defendant [must] show that the statutory
sentencing factors render the sentence unreasonable.” Id.
Quintana-Torres argues that the district court “gave inadequate weight to
numerous mitigating factors, as well as to the fact that a shorter sentence would have
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served as an adequate, and equally effective, deterrent.” Aplt. Br. at 8. “For
instance,” he argues, his “long history of addiction was both a mitigating force in and
of itself, but also important because it helped to explain the circumstances that led to
the offense conduct in this case.” Id. at 9. Although Quintana-Torres concedes that
“the district court recognized this point,” he notes that “it did so only after it had
explained its sentence of imprisonment, and in the context of making a treatment
recommendation to” the Bureau of Prisons. Id. Quintana-Torres argues that “[i]t was
manifestly unreasonable for the court to recognize the impact [his] addiction had on
the commission of this offense, but fail to give it any weight in its sentencing
decision.” Id. In addition, Quintana-Torres argues that the district court “failed to
give adequate weight to the fact that [he] had never before served any significant
time in custody” and “had only one prior conviction . . . which counted for only one
criminal history point in this federal sentencing.” Id. at 10.
“At the same time,” Quintana-Torres argues, “the district court put far too
much weight on the nature and circumstances of the instant offense,” in particular
“the quantities of drugs involved, and . . . Quintana-Torres’s relative culpability in
the group’s failed plan to transport those drugs.”1 Id. at 10–11. In fact, Quintana-
Torres argues, his “lack of knowledge” regarding “the specific quantity or quality of
1
Quintana-Torres also challenges “the government’s assessment of relative
culpability,” arguing that it “appears to have been based on hearsay statements made
by [a codefendant] and other members of the transport group to local police, which
were, thereafter, recounted in the PSR.” Aplt. Br. at 11. We need not address this
argument, however, because our focus is solely on the district court’s rationale for
selecting the 180-month sentence.
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the drugs being shipped . . . was a mitigating circumstance here, particularly where
the quantity drove the sentencing range up to near the top of the guidelines.” Id. at
11.
After considering the statutory sentencing factors and the record in this case,
we are not persuaded that Quintana-Torres has overcome the presumption of
reasonableness that we must afford to the sentence imposed by the district court. The
sentencing record in this case unquestionably establishes that the district court took
into account “the nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1).
In particular, the district court repeatedly emphasized the fact that the offense
involved the transportation of large quantities of two different types of drugs, and the
fact that Quintana-Torres played a significant role in organizing and carrying out the
transportation scheme. The district court also took into account the type and quantity
of the drugs involved in considering “the need for the sentence imposed . . . to reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). Although Quintana-Torres
complains that the district court failed to give adequate weight to his personal
“history and characteristics,” 18 U.S.C. § 3553(a)(1), the record indicates that the
district court did take his history and characteristics into account (particularly his
drug addiction and need for treatment and rehabilitation), but decided that those
factors did not, in light of the nature of the offense and Quintana-Torres’s role
therein, justify a sentence below or even at the bottom of the advisory Guidelines
sentencing range. Instead, the district court expressly “determined that a mid-tier
8
guideline sentence [wa]s most appropriate for” Quintana-Torres, and was “not greater
than necessary to reflect the seriousness of the offense for which [Quintana-Torres
was] convicted, to promote respect for the law, and to provide just punishment.”
ROA, Vol. 3 at 21–22. In sum, we are persuaded that, in light of the statutory
sentencing factors and the particular facts of the offenses of conviction, the sentence
imposed by the district court was entirely reasonable.
The judgment of the district court is therefore AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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