              Case: 17-14453    Date Filed: 11/06/2018   Page: 1 of 17


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-14453
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:16-cr-00211-RBD-KRS-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

HUGO MARGENAT-CASTRO,

                                                               Defendant-Appellant.

                           ________________________

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

                                (November 6, 2018)

Before MARCUS, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

      Hugo Margenat-Castro appeals his sentence of 240 months’ imprisonment

following his convictions for conspiracy to distribute and distribution of controlled

substances. He argues that the sentence imposed by the district court is
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procedurally and substantively unreasonable and that the government breached the

plea agreement by effectively arguing for a variance above the Guidelines range.

After a careful review of the record and the parties’ briefs, we affirm.

                                I. BACKGROUND

      A. The Offense Conduct

      Margenat-Castro sold small bags of heroin to multiple customers every day

from at least January 2015 through October 7, 2015. During that time period, he

distributed more than 100 grams of heroin. Margenat-Castro advertised his heroin

on a social media website called the “Experience Project,” in message boards

entitled “I Love Heroin” and “Heroin in Orlando.” He obtained the heroin he sold

from others, but he knew that it had been cut with sleeping pills and fentanyl (a

strong opioid pain medication also used for anesthesia). He advertised his heroin

as high in quality, but told authorities that the product he sold was so strong that he

often advised his customers to use only half a bag at a time.

      After visiting the Experience Project website, one customer, W.G., contacted

Margenat-Castro and traveled from Georgia to Florida to buy heroin from him.

W.G. used Margenat-Castro’s heroin mix, overdosed, and died. According to the

presentence investigation report (“PSI”), two other individuals (A.B. and T.W.)

overdosed and died after using the mix of heroin and fentanyl sold by Margenat-

Castro. The probation officer concluded, however—and the government agreed—


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that Margenat-Castro was not legally responsible for the deaths of A.B. and T.W.

because there were other contributing substances in their systems when they died.

      B. The Plea Agreement

      Margenat-Castro entered a guilty plea to one count of conspiring to

distribute heroin and one count of distributing fentanyl resulting in the death of

another. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(i), & (b)(1)(C); 21 U.S.C. § 846.

Pursuant to a written plea agreement, the government agreed to dismiss three

additional counts of distributing fentanyl; to bring no further charges related to the

offense conduct; and to recommend a sentence “within the defendant’s applicable

guidelines range” in exchange for Margenat-Castro’s guilty plea. The plea

agreement also provided, however, that the government reserved the right to

“report to the Court and the United States Probation Office all information

concerning the background, character, and conduct of the defendant”; to respond to

comments made by the defense; to provide complete factual information about

Margenat-Castro’s criminal activity, not limited to the crimes charged; and to

make appropriate recommendations regarding the disposition of the case, subject to

the limitations specified in the plea agreement.

      C. The Sentencing Hearing

      At the sentencing hearing, the district court adopted the probation officer’s

Guidelines calculations without objection from the parties. Using the 2016


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Sentencing Guidelines Manual, the probation officer calculated a base offense

level of 38. See 21 U.S.C. § 841 (b)(1)(C); U.S.S.G. § 2D1.1(a)(2). The offense

level was increased by two levels because the offense involved distribution of a

controlled substance through interactive computer mass-marketing, see U.S.S.G.

§ 2D1.1(b)(7), and reduced by three levels for acceptance of responsibility because

of Margenat-Castro’s timely guilty plea, see U.S.S.G. §§ 3E1.1(a)–(b). The

district court granted the government’s motion for a two-level downward departure

under U.S.S.G. § 5K1.1, reducing Margenat-Castro’s total offense level to 35.

With Margenat-Castro’s criminal history category of I, his Guidelines sentencing

range was 168–210 months’ imprisonment. The statutory term of imprisonment

for the crime of fentanyl distribution resulting in death is 20 years to life. 21

U.S.C. § 841(b)(1)(C).

      In its presentation at the sentencing hearing, the government called seven

victim impact witnesses, including three of W.G.’s family members, W.G.’s

girlfriend, an assistant at a drug abuse counseling program that W.G. completed,

and two of A.B.’s family members. The prosecutor then emphasized the fact that

Margenat-Castro had knowingly sold heroin mixed with fentanyl—which is up to

50 times stronger than heroin—while misrepresenting to his customers that his

product was high-quality heroin. The prosecutor asserted that while Margenat-

Castro had presented his family history of heroin addiction and overdose-related


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death as a mitigating factor, it should instead be considered an aggravator because

it showed that Margenat-Castro knew firsthand the dangers of the drugs that he

sold.

        Margenat-Castro objected, contending that the government’s argument for

aggravating factors constituted a breach of the plea agreement because the

government had agreed to recommend a sentence within the Guidelines range. The

district court overruled the objection, stating that the court would wait to “see

where [the prosecutor] end[ed] up in terms of his recommendation to the Court.”

The prosecutor acknowledged that he had agreed to recommend a Guidelines

sentence and explained that his argument was in response to Margenat-Castro’s

presentencing request for a downward variance to 121 months. The prosecutor

argued that a sentence of 121 months would not adequately reflect the seriousness

of the defendant’s crimes and requested that the court impose a “severe and

substantial sentence of 210 months,” the upper end of the Guidelines range.

        Margenat-Castro, for his part, called five family members to testify on his

behalf. He then addressed the court personally, expressing remorse for the harm he

had caused. He also stated that he did not intend for anyone to get hurt and that he

accepted full responsibility for his actions. Defense counsel highlighted Margenat-

Castro’s own heroin addiction along with the abuse and neglect he suffered during




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childhood, and concluded by requesting a downward variance to 121 months’

imprisonment.

      Before imposing the sentence, the district court discussed its careful

consideration of the 18 U.S.C. § 3553(a) sentencing factors, including specifically

the nature of the offense and “the history and characteristics of the defendant.” 18

U.S.C. § 3553(a)(1). The judge stated that he “want[ed] to be moved to

compassion” by Margenat-Castro’s life story, but that he “k[ept] coming back to

the destroyed lives that [he had] seen played out in the courtroom,” and that

Margenat-Castro “killed [W.G.] just as assuredly as if he had carelessly, without

concern fired a gun into a crowd or being [sic] addicted to alcohol and run him

down while driving drunk.” The court acknowledged the Guidelines sentencing

range of 163–210 months, but pointed out that the Guidelines were advisory in

nature and concluded, after considering all of the § 3553 factors, that 240 months’

imprisonment was a just sentence, and was “sufficient but not greater than

necessary” to achieve the statutory purposes of sentencing. 18 U.S.C. § 3553(a).

      Defense counsel objected that the sentence was substantively and

procedurally unreasonable, asserting that “the Court may have improperly failed to

consider the 3553(a) factors, may have selected a sentence based on erroneous

facts, or failed to have adequately explained the chosen sentence or explained the




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Court’s upward variance.” Counsel did not renew the objection to the

government’s purported breach of the plea agreement.

       On appeal, Margenat-Castro argues that the sentence imposed by the district

court is procedurally and substantively unreasonable and that the government

breached the plea agreement by effectively arguing for a variance above the

Guidelines sentencing range. In response, the government contends that Margenat-

Castro failed to object with sufficient specificity in the district court to preserve

either of those issues for appeal and that his claims do not survive plain-error

review. 1

                                     II. DISCUSSION

       We review a district court’s sentencing decisions for procedural and

substantive reasonableness under an abuse-of-discretion standard, regardless of

whether the sentence imposed is inside or outside the Guidelines range. Gall v.

United States, 552 U.S. 38, 41, 51, 128 S. Ct. 586, 591, 597 (2007); see United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). In reviewing a sentence for

reasonableness, we first determine whether the district court committed any

“significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to


1
 Because we conclude that Margenat-Castro’s claims fail even under the usual standards of
review, we need not reach the government’s contention that they should be reviewed only for
plain error.
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consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. If

the sentence is free of any significant procedural error, we then evaluate the

sentence for substantive reasonableness—that is, whether the sentence imposed is

reasonable under the circumstances when viewed in light of the § 3553(a)

sentencing factors. See id.; United States v. Irey, 612 F.3d 1160, 1189-90 (11th

Cir. 2010) (en banc). The party challenging the sentence bears the burden of

showing that it is unreasonable. United States v. Flanders, 752 F.3d 1317, 1339

(11th Cir. 2014).

      We review a defendant’s claim that the government breached a plea

agreement de novo. See United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir.

1998). “‘Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding at the time he entered his plea.’” United

States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (citation omitted).

      A. Procedural Reasonableness

      Margenat-Castro argues that the district court’s sentence was procedurally

unreasonable because the court failed to engage in an individualized consideration

of the factors set forth in § 3553(a), did not properly consider the applicable

Guidelines sentencing range, and did not adequately explain its reasons for varying


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upward from the Guidelines range. He also argues that, by equating his conduct

with manslaughter, the district court based his sentence on clearly erroneous facts.

None of these contentions are correct.

          1. Consideration of § 3553(a) Sentencing Factors

          Margenat-Castro complains that, in sentencing him to 240 months, the

district court failed to take into account his “history and characteristics,” as

required by 18 U.S.C. § 3553(a)(1), and the applicable Guidelines sentencing

range, pursuant to § 3553(a)(4). This argument borders on the frivolous. The

district court expressly stated—more than once—that it had considered all of the

§ 3553(a) factors, and the court discussed “the nature and circumstances of the

offense and the history and characteristics of the defendant” at length. 18 U.S.C.

§ 3553(a)(1). The court referenced Margenat-Castro’s conduct in the context of

the current “opioid epidemic” and called the addition of fentanyl to profit from

those who struggle with addiction to opioids and heroin “a predacious evil.” The

court went on to discuss Margenat-Castro’s difficult childhood and family history

of heroin addiction, as well as his significant cooperation with the government.

      During its discussion, the district court also specifically referenced several

other sentencing factors, acknowledging that the sentence not only must take into

account the nature of the crime and the history and characteristics of the defendant,

but also must “reflect the seriousness of the [offense],” “promote respect for the


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law,” and “send a message of deterrence.” 18 U.S.C. § 3553(a)(2)(A); see 18

U.S.C. § 3553(a)(2)(B). The court also explained its duty to impose punishment

that “is sufficient but not greater than necessary to achieve the statutory purposes

of sentencing.” See 18 U.S.C. § 3553(a).

      Finally, the court explicitly considered the applicable Guidelines sentencing

range. The court stated that it had reviewed the PSI and adopted the probation

officer’s Guidelines calculations. The court then noted the correct resulting

Guidelines sentencing range of 168–210 months, specifically recognizing that the

sentence that it imposed was an upward variance from the Guidelines range.

      This record is sufficient to show that the district court adequately considered

all of the § 3553(a) factors, including the history and characteristics of the

defendant and the applicable Guidelines sentencing range. There is no requirement

that a court specifically reference each and every factor in its discussion, so long as

the court indicates that it has considered them. See United States v. McGarity, 669

F.3d 1218, 1263 (11th Cir. 2012).

          2. Explanation of Sentence

          Under 18 U.S.C. § 3553(c)(2), if the district court imposes a sentence

outside the Guidelines range, it must state its reasons for doing so on the record in

sufficient detail so that this Court can meaningfully review whether the deviation

was justified. United States v. Parks, 823 F.3d 990, 997 (11th Cir. 2016). When


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explaining the reasons for selecting a defendant’s particular sentence, the

sentencing judge need only “set forth enough to satisfy the appellate court that he

has considered the parties’ arguments and has a reasoned basis for exercising his

own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356,

127 S. Ct. 2456, 2468 (2007); see Irey, 612 F.3d at 1194-95. A court’s statement

that it has considered the parties’ arguments and the § 3553(a) factors in deciding

what sentence to impose is sufficient explanation to meet the statutory

requirements. McGarity, 669 F.3d at 1263.

      Here, the district court stated that it had considered the PSI, the defense

psychologist’s report and other PSI attachments, Margenat-Castro’s sentencing

memorandum, the parties’ arguments, and all of the § 3553(a) factors. In

explaining its upward variance, the court acknowledged the Guidelines sentencing

range but noted the advisory nature of the Guidelines. The court also emphasized

its duty to choose a sentence that “recognizes the individual nature of the

defendant, the seriousness of the crime, the loss to the victims, and the message of

deterrence and the struggle at the end of it all to do the right thing.”

      At the hearing, the court pointed out that the defendant had “used the

internet to peddle poison and death,” and said that the fact that Margenat-Castro

used his own product showed either “a separation from the world of rational

thinking or perhaps a gross recklessness” and lack of concern for the consequences


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to himself or others. Later, in its written Statement of Reasons, the district court

based the upward variance on “[t]he nature and circumstances of the offense

pursuant to 18 U.S.C. § 3553(a)(1), including “[v]ictim [i]mpact,” and the need

“[t]o reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense” pursuant to § 3553(a)(2)(A). And in its

narrative providing additional grounds for the upward variance, the court identified

“the impact to the victim; specifically, the victim’s death, the strong need for

deterrence in the face of an ongoing crisis of opio[i]d related death in connection

with heroin laced with fentanyl and the need to protect the public.” These

explanations were more than sufficient to satisfy the requirements of § 3553(c)(2).

          3. Alleged Reliance on Clearly Erroneous Facts

          For the first time on appeal, Margenat-Castro argues that the district court

improperly equated his offense conduct with manslaughter—and in so doing relied

on “clearly erroneous facts”—when the judge remarked that “[t]he defendant killed

[W.G.] just as assuredly as if he had carelessly, without concern fired a gun into a

crowd or being [sic] addicted to alcohol and run him down while driving drunk.”

But the district court did not expressly equate Margenat-Castro’s conduct with the

crime of manslaughter. Nor did it make any findings of fact when it characterized

Margenat-Castro’s conduct in connection with the offense as careless. The facts

relevant to that description—that Margenat-Castro knowingly sold sleeping-pill-


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and fentanyl-laced heroin to W.G. and that those drugs caused W.G.’s overdose

and death—were admitted in the plea agreement and included without objection in

the PSI. See United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (a

“district court may rely on undisputed facts contained in the PSI” when

sentencing). This aspect of Margenat-Castro’s procedural reasonableness claim

also fails.

       B. Substantive Reasonableness

       A sentence may be substantively unreasonable if, under the totality of the

circumstances, it “‘fails to achieve the purposes of sentencing as stated in

§ 3553(a).’” Pugh, 515 F.3d at 1191 (citation omitted). In this regard, a district

court abuses its discretion if, in deciding what sentence to impose, it “‘selects the

sentence arbitrarily, bases the sentence on impermissible factors, [or] fails to

consider pertinent section 3553(a) factors.’” Id. at 1191-92 (citation omitted).

This Court will consider the extent of any variance from the applicable Guidelines

range in determining whether a sentence is reasonable, but we “must give due

deference to the district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.” Gall, 552 U.S. at 51. A sentence generally will

be found to be substantively reasonable if it is “‘in the ballpark’ of permissible

outcomes.” Irey, 612 F.3d at 1189 (citation and punctuation omitted).




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      Margenat-Castro claims that the sentence imposed is substantively

unreasonable because it is greater than necessary to effectuate the purposes of

sentencing, and because the sentencing judge relied on improper or irrelevant

factors; namely, his purported treatment of Margenat-Castro’s drug offenses as

equivalent to manslaughter and his personal belief in the need for deterrence in

light of the current opioid crisis. At bottom, Margenat-Castro contends that the

district court gave too much weight to the nature and severity of the offense,

including the death of W.G., and failed to give sufficient consideration to his

background and personal characteristics. But the weight given to any of the

§ 3553(a) sentencing factors is generally within the discretion of the district court,

and the court may, in the exercise of that discretion, “attach ‘great weight’ to one

factor over others.” United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th

Cir. 2015) (citation omitted); United States v. Shaw, 560 F.3d 1230, 1237 (11th

Cir. 2009).

      A sentence imposed outside the Guidelines range is not automatically

presumed to be unreasonable, nor is there a “rigid mathematical formula” to

analyze the justification necessary for a particular degree of variance. Gall, 552

U.S. at 47. While the district court must have a justification compelling enough to

support the degree of any variance and complete enough to allow meaningful

appellate review, we will vacate a sentence only if we are “‘left with the definite


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and firm conviction that the district court committed a clear error in 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.’” Pugh, 515 F.3d at 1191

(citation omitted).

      We conclude that Margenat-Castro has not met his burden of demonstrating

that the sentence imposed by the district court was substantively unreasonable.

Notably, the sentence imposed is the statutory minimum for the offense, and would

have been the minimum under the Guidelines but for the government’s request for

downward departure due to Margenat-Castro’s cooperation. In fact, the sentence is

well below the statutory maximum of life in prison. 18 U.S.C. § 841(b)(1)(C); see

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (noting as an

indicator of reasonableness the fact that a sentence was well below the statutory

maximum).

      C. Alleged Breach of the Plea Agreement

      The government must abide by any material plea-agreement promises it

makes that are part of the inducement for the defendant to plead guilty. Santobello

v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971); United States v.

Taylor, 77 F.3d 368, 370 (11th Cir. 1996). The government breaches a plea

agreement when it takes a position directly contradictory to one required by an

unequivocal promise in the plea agreement; for example, by advocating for a PSI


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that recommended a sentence well over the one the government agreed to

recommend as part of the plea agreement. See Taylor, 77 F.3d at 370-71. And the

presentation of evidence contradicting a stipulation of fact in the plea agreement

would also constitute a breach. See United States v. Boatner, 966 F.2d 1575, 1578

(11th Cir. 1992); see also United States v. De La Garza, 516 F.3d 1266, 1270 (11th

Cir. 2008) (ultimately finding the breach harmless). But the government does not

breach a plea agreement by providing pertinent background information to the

probation officer or the court as long as it does not expressly violate any of its

obligations under the agreement. See Horsfall, 552 F.3d at 1283.

      Here, neither the government’s presentation of victim impact statements nor

its argument in support of its recommendation for an upper-end Guidelines

sentence constituted a breach of the plea agreement with Margenat-Castro. In fact,

the plea agreement specifically permitted the government to provide complete

information regarding Margenat-Castro’s “background, character, and conduct,”

including all criminal activity, whether related to the crimes charged or not;

information about other deaths involving the heroin-fentanyl mixture sold by

Margenat-Castro would certainly qualify. And while the government argued

against Margenat-Castro’s requested downward variance, it ultimately complied

with its plea-agreement obligation by recommending a sentence within the

Guidelines range. Furthermore, the prosecutor stated that the government’s


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recommended sentence of 210 months was a “severe and substantial” sentence that

would “send a message” and deter others from selling heroin or fentanyl. That

does not sound like “lip service” to the plea agreement, as Margenat-Castro

contends. In short, there was no breach of the plea agreement.

AFFIRMED.




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