           Case: 17-13896   Date Filed: 04/12/2018   Page: 1 of 9


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13896
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:17-cr-00097-EAK-TBM-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


WALBERTO CUERO CORTES,

                                                         Defendant-Appellant.

                      ________________________

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

                             (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.    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 3-

level 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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