                                                        FILED
                                            United States Court of Appeals
                 UNITED STATES COURT OF APPEALS     Tenth Circuit

                                                                     July 8, 2020
                       FOR THE TENTH CIRCUIT
                     _______________________________________     Christopher M. Wolpert
                                                                     Clerk of Court
UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

v.                                              Nos. 19-2157 & 19-2158
                                           (D.C. Nos. 1:17-CR-03420 WJ-1 &
VICTOR ORTIZ-HERNANDEZ,                          1:17-CR-03422-WJ-1)
a/k/a Guero,                                           (D. N.M.)

        Defendant - Appellant.
                   _________________________________________

                         ORDER AND JUDGMENT *
                    __________________________________________

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.
               ___________________________________________

      This appeal involves sentencing in two drug-trafficking cases. The

defendant, Mr. Victor Ortiz-Hernandez, faced a guideline range of 168 to

210 months’ imprisonment and requested a downward variance to 120




*     Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
months. The district court denied the request and sentenced Mr. Ortiz-

Hernandez to the bottom of the guideline range (168 months) in both cases.

      In this appeal, Mr. Ortiz-Hernandez challenges only the refusal to

vary downward, arguing that the district court based this decision on a

factual mistake. This argument relates to the district court’s explanation

that it had imposed 120-month sentences for less culpable defendants in a

related drug trafficking case who had served only as couriers. Mr. Ortiz-

Hernandez argues that this explanation was based on a factual mistake

because the couriers had received sentences of less than 120 months.

      But the record does not show a factual mistake. The government

identifies the two couriers as Sonia Garibaldi-Bravo and Cesar Martin

Hernandez. Both individuals received

           120-month sentences,

           were identified in their presentence reports as couriers, and

           were defendants in United States v. Felix-Tavizon, No. CR-17-
            2943-WJ (D. N.M.), which the government had identified as
            related to the prosecution of Mr. Ortiz-Hernandez.

      Mr. Ortiz-Hernandez points out that his presentence report did not

list Felix-Tavizon as a related case. So what? The government identified

Felix-Tavizon as a related case, and Mr. Ortiz-Hernandez gives no reason

to question that characterization. The district court explained that it had

sentenced two other less culpable defendants in a related case to 120-



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month sentences. This explanation was correct, so we affirm Mr. Ortiz-

Hernandez’s sentences.

                                  Entered for the Court


                                  Robert E. Bacharach
                                  Circuit Judge




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