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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11452
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:14-cr-00046-PGB-TBS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

RICHARD IRIZARRY,

                                                         Defendant-Appellant.

                       ________________________

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

                              (May 12, 2016)

Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Defendant Richard Irizarry appeals his 120-month sentence imposed after a

jury found him guilty of attempting to aid and abet the possession with intent to

distribute and distribution of 500 grams or more of cocaine, in violation of 21

U.S.C. §§ 841(b)(1)(B)(ii), 846, and using a communication facility to aid in the

commission of a drug trafficking crime, in violation of 21 U.S.C. § 843(b). On

appeal, Defendant argues that his sentence, which reflects a 23-month upward

variance from the top of his advisory guideline range, is substantively

unreasonable. In particular, he asserts that the district court placed undue weight

on his abuse of a position of public trust. After careful review, we affirm.

I. BACKGROUND

       According to the Presentence Investigation Report (“PSR”), 1 Defendant, a

police officer and retired member of the U.S. Marine Corps, told a known drug

dealer—who unbeknownst to Defendant was also a confidential source with the

Drug Enforcement Administration (“DEA”)—that he wanted to invest in a cocaine

deal. Defendant offered to provide narcotics test kits, as well as security during

drug deals. After meeting with the confidential source to discuss his interest in

investing in drugs, Defendant told his supervisor about the deal. Defendant’s



1
  Defendant objected to the characterization of several of the factual statements in the PSR and
requested that the district court rely on his memory from trial instead of the PSR’s factual
recitations. We refer only to the undisputed portions of the PSR. But in any event, Defendant
does not challenge on appeal any of the facts upon which he was sentenced.
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supervisor contacted the DEA and instructed Defendant not to have any further

contact with the confidential source.

      Defendant ignored his supervisor’s instructions, and later met with the

confidential source. During the meeting, the confidential source told Defendant

that he had seen a suspicious car in the area. Using the Motor Vehicle Driver and

Vehicle Identification Database, Defendant looked up the license plate number and

informed the confidential source that the plate was registered to a government

vehicle.

      On a different occasion, Defendant provided security during a drug deal for

which the confidential source paid Defendant $500. The next day, Defendant

reported to a police department sergeant that he had witnessed the confidential

source conduct a drug deal. Defendant also provided a written statement of the

activities he had performed with the confidential source and turned over the $500.

At a subsequent interview with the DEA, Defendant explained that he played along

with the confidential source, but he never intended to invest in a cocaine deal or

earn $500 for providing security during the drug deal.

      Defendant was later indicted and a jury found him guilty of attempting to aid

and abet the possession with intent to distribute and distribution of 500 grams or

more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B)(ii), 846 (Count 1), and




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using a communication facility to aid in the commission of a drug trafficking

offense, in violation of 21 U.S.C. § 843(b) (Count 3).2

       In preparation for sentencing, a probation officer prepared a PSR. The PSR

assigned Defendant a base offense level of 24, pursuant to U.S.S.G. § 2D1.1(c)(8).

Defendant received two enhancements, including a two-level increase for his role

in the offense under U.S.S.G. § 3B1.3, because he abused his position of trust in a

manner that significantly facilitated the commission or concealment of the offense.

Based on a total offense level of 28 and a criminal history category of I,

Defendant’s guideline range was 78 to 97 months’ imprisonment.

       At sentencing, Defendant requested that the district court vary downward to

the mandatory minimum of 60 months’ imprisonment because he had led an

exemplary life before this incident. He further asserted that five years’

imprisonment was more than sufficient because he was going to be placed in

solitary confinement for his own protection due to his position as a law

enforcement officer. The Government responded that an upward variance was

warranted given the nature and circumstances of the offense and the need for

specific and general deterrence.




2
  The jury acquitted Defendant of Count 2: carrying a firearm during and in relation to, and
possessing a firearm in further of the drug trafficking crime in Count 1, in violation of 18 U.S.C.
§ 924(c).
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      When asked by the district court why the two-level enhancement for abuse

of a position of trust was not sufficient, the Government stated that the

enhancement covered the fact that Defendant was a police officer. But the

enhancement did not cover Defendant’s acts of identifying an undercover police

officer’s vehicle, offering to provide narcotics test kits, or permitting what

Defendant believed to be one kilogram of cocaine to enter the community. After

considering the 18 U.S.C. § 3553(a) factors, the district court concluded that the

guidelines “fail[ed] to capture the breadth and scope of [Defendant’s] conduct, the

breadth and scope of the risk that [Defendant] presented to his colleagues and [his]

community and failed to properly deter” both Defendant and the general

community. Consequently, the district court sentenced Defendant to 120 months

as to Count 1, and 48 months as to Count 3, to be served concurrently.

II. DISCUSSION

      Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th

Cir. 2014), cert. denied, 135 S. Ct. 764 (2014). We first look to whether the

district court committed any procedural error, and then we examine whether the

sentence is substantively reasonable in light of the totality of the circumstances and




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the 18 U.S.C. § 3553(a) factors. 3 Id. The party challenging the sentence bears the

burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179,

1189 (11th Cir. 2008). We will only vacate a defendant’s sentence 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) (quotation omitted).

       Here, Defendant has not shown that his sentence is substantively

unreasonable. Although Defendant’s 120-month sentence reflects a 23-month

upward variance from the top of his guideline range of 78 to 97 months’

imprisonment, it is still well below the 40-year statutory maximum under 21

U.S.C. § 841(b)(1)(B)(ii). See United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008) (indicating that a sentence well below the statutory maximum is

an indication of reasonableness).

       Moreover, the record reflects that the § 3553(a) factors support the upward

variance in this case. The district court balanced Defendant’s history and

3
  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
education 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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characteristics, including his 22 years of military service and professional awards

and accolades, against the nature and circumstances of the offense. As noted by

the district court, Defendant assumed a leadership role in the offense, offered to

provide narcotics test kits, identified a government vehicle to the confidential

source, and allowed what he believed to be one kilogram of cocaine to enter the

community without notifying the DEA or police department. The upward variance

was also necessary to deter Defendant and the general community from

committing similar crimes.

      Contrary to Defendant’s contentions, it was reasonable for the district court

to rely on certain aspects of his conduct when it imposed the upward variance,

even though it had already considered that conduct when imposing the two-level

abuse-of-trust enhancement. See United States v. Amedeo, 487 F.3d 823, 833–34

(11th Cir. 2007) (concluding that it was reasonable, when imposing an upward

variance pursuant to § 3553(a), for the district court to rely on certain aspects of

the defendant’s conduct that had been considered in imposing an enhancement

under U.S.S.G. § 3B1.3). Likewise, the fact that the district court assigned greater

weight to certain § 3553(a) factors—the nature and circumstances of the offense

and specific and general deterrence—was entirely within its discretion. See United

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be accorded any




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given § 3553(a) factor is a matter committed to the sound discretion of the district

court. . . .” (quotation omitted)).

       Furthermore, Defendant’s reliance on our decision in United States v. Terry,

60 F.3d 1541 (11th Cir. 1995), to support his argument that the district court could

not rely on his conduct involving abuse of trust for both the enhancement and

upward variance is misplaced. In Terry, we upheld the two-level enhancement for

abuse of trust, where the defendant, a law enforcement officer, was at the scene of

a drug deal in his patrol car and ensured that no other officers interrupted the

transaction. See Terry, 60 F.3d at 1545. Terry did not consider whether the

defendant’s conduct also warranted an upward variance. See id. Thus, while Terry

supports the proposition that a law enforcement officer can be subject to a two-

level abuse-of-trust enhancement for conduct similar to Defendant’s, it does not

support Defendant’s assertion that the conduct used to support the enhancement

may not also be used to justify an upward variance. See id.

       Finally, we are not persuaded by Defendant’s argument that the district court

violated his equal protection rights under the Fifth Amendment by punishing him

more severely based on his status as a law enforcement officer. Because

Defendant did not make this argument before the district court, our review is




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limited to plain error.4 See United States v. Clark, 274 F.3d 1325, 1326 (11th Cir.

2001) (explaining that we review arguments raised for the first time on appeal for

plain error). Defendant points to no authority to support his argument that it was

unconstitutional for the district court to consider his status as a law enforcement

officer in imposing the upward variance. As such, he cannot show that the district

court committed plain error. See United States v. Lejarde-Rada, 319 F.3d 1288,

1291 (11th Cir. 2003) (“It is the law of this circuit that, at least where the explicit

language of a statute or rule does not specifically resolve an issue, there can be no

plain error where there is no precedent from the Supreme Court or this Court

directly resolving it.”). And in any event, in determining the appropriate sentence,

the district court had discretion to consider the totality of the circumstances and all

of the § 3553(a) factors, including Defendant’s position as a police officer and his

use of that position to further his crimes. See Gall v. United States, 552 U.S. 38,

49–50 (2007) (explaining that the district court should consider all of the § 3553(a)

factors and “make an individualized assessment based on the facts” in determining

the appropriate sentence).




4
  We will only notice plain error if “(1) there is an error in the district court’s determination;
(2) the error is plain or obvious; (3) the error affects the defendant’s substantial rights in that it
was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Clark, 274 F.3d 1325, 1326 (11th
Cir. 2001).
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      In short, Defendant has not met his burden of showing that the district court

abused its discretion by imposing a 120-month sentence. Accordingly,

Defendant’s sentence is AFFIRMED.




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