           Case: 15-10276   Date Filed: 08/24/2015   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10276
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:14-cr-00023-MHT-CSC-5



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ALBERTO TREJO,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 24, 2015)

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Alberto Trejo appeals his 360-month sentence, imposed at the bottom of the

advisory guideline range, after pleading guilty to conspiring to possess with intent

to distribute methamphetamine.     On appeal, Trejo argues that his sentence is

procedurally unreasonable because the district court erroneously believed it could

not downwardly vary from the methamphetamine guidelines based on a policy

disagreement with those guidelines.           And he argues that his sentence is

substantively unreasonable because it is based on those guidelines, which are

unduly harsh and unsupported by empirical evidence. After careful review, we

affirm Trejo’s sentence.

                                         I.

      Trejo and four codefendants were indicted on one count of conspiring to

possess with intent to distribute 500 grams or more of a substance containing

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Trejo was

accused of organizing and leading the conspiracy while serving a 99-year sentence

for second-degree murder in Alabama state prison. Trejo pled guilty to the federal

charge without a plea agreement.

      In the presentence investigation report, Trejo was held accountable for 12.44

kilograms of “Ice” methamphetamine and 27.7 grams of cocaine. To calculate a

single offense level, the probation officer converted these quantities into their

marijuana equivalents.      See United States Sentencing Guidelines Manual


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(“U.S.S.G.”) § 2D1.1 cmt. n.8(B). Under the Drug Equivalency Tables, one gram

of Ice is equivalent to twenty kilograms of marijuana.1 Id. § 2D1.1 cmt. n.8(D).

After conversion, Trejo was held accountable, in total, for the equivalent of

248,805.54 kilograms of marijuana, for a base offense level of 38.                       See id.

§ 2D1.1(c)(1) (involving 90,000 kilograms or more of marijuana).                        The Ice

equivalent accounted for all but 5.54 kilograms of the total amount.

       With a four-level increase for Trejo’s leadership role and a three-level

reduction for his acceptance of responsibility, Trejo’s total offense level was 39.

Trejo was designated a career offender, under U.S.S.G. § 4B1.1, due to two prior

qualifying felony convictions (murder and transporting marijuana for sale), which

pushed his criminal history category from V to VI, see U.S.S.G. § 4B1.1(b),

resulting in a guideline range of 360 months to life imprisonment. 2 Due to the

prior felony drug conviction, Trejo faced a statutory minimum term of 20 years’

imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii).



       1
         “Ice” is defined as a mixture that is at least 80% pure methamphetamine. See U.S.S.G.
§ 2D1.1(c) n.(C). For comparison, one gram of methamphetamine that is not “methamphetamine
(actual)” or “Ice” is, under the Tables, equivalent to two kilograms of marijuana. Id. § 2D1.1
cmt. n.8(D).
       2
         Trejo’s guidelines range remained the same because his base offense level under §
2D1.1 (level 38) was higher than his offense level under the career-offender table (level 37), and
the career-offender guidelines provide that the higher level of the two applies. See U.S.S.G.
§ 4B1.1(b). Had the career-offender offense level applied instead, his total offense level would
have been 38 instead of 39, resulting in the same guideline range of 360 months to life
imprisonment. See U.S.S.G. Ch. 5, Pt. A.
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      Trejo requested a downward variance to the minimum of 20 years’

imprisonment, arguing that the methamphetamine guidelines overstated the

seriousness of his conduct. To illustrate the point, Trejo asserted in a sentencing

memorandum that his offense level would have been lower had he committed

second-degree murder or a drug offense involving 440 kilograms of cocaine. And

at sentencing, Trejo initially compared the current federal treatment of drug crimes

to alcohol prohibition and asserted that thirty years in prison was too much for any

drug crime.

      In attempting to clarify Trejo’s arguments at sentencing, the court identified

two categories of variances district courts may impose: (1) the “typical 3553”

where “the defendant ha[s] certain individual characteristics that warrant a variance

downward”; and (2) where, “as a matter of policy, and regardless as to this

defendant, the Court should just not follow the sentencing commission’s views

about guidelines.”     The court characterized Trejo’s argument as a policy

argument—not based on Trejo’s individual characteristics—and noted that it

“disagree[d] with the calculations of the sentencing commission.”

      But, according to the court, sentencing courts “should be more reluctant” to

grant a variance based on policy disagreements. Further, the court stated, it had

only known courts to reject the crack-cocaine guidelines based on policy

disagreements. In response, Trejo, for the first time, asserted that his argument


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was based in part on a sentencing disparity based on methamphetamine purity.

The sentences for more pure methamphetamine, he asserted, were ten times more

severe than for an equivalent amount of less pure methamphetamine. The district

court suggested that even if there were problems with the methamphetamine

guidelines, in light of his prior murder conviction, Trejo was “a pretty, pretty

violent person” who may not deserve a downward variance on that basis alone.

      The district court confirmed that the guideline range was 360 months to life

imprisonment, which was uncontested, and then recessed the hearing for the day,

noting that it needed additional time. When sentencing resumed the next day, the

court denied Trejo’s request for a variance. The court elaborated, “[W]hen you

talk[ed] about disparity involving meth, I wasn’t quite sure what type of disparity

you were talking about, whether it was . . . between the pure and nonpure or meth

versus other drugs or what?” The court directed Trejo’s counsel to the district

court decision of United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013),

which, according to the court, discussed the policy arguments against the

methamphetamine guidelines in more detail. “But,” the court stated, “I don’t find

any record here that supports a rejection of the policy.”

      The district court sentenced Trejo to serve 360 months in prison, to run

consecutive to the 99-year sentence he was serving. Following the hearing, the

court issued a written opinion denying Trejo’s motion for a downward variance. In


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the opinion, the court explained that Trejo “did not present clear or sufficient

evidence as to why the sentencing disparities produced by the methamphetamine

guidelines are unwarranted as applied to him,” and that “his arguments were

conclusory and superficial, and not substantive.” Trejo now appeals.

                                        II.

      We review the reasonableness of a sentence under an abuse-of-discretion

standard.   United States v. Moran, 778 F.3d 942, 982 (11th Cir. 2015).         In

reviewing for reasonableness, we “must first ensure that the district court

committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Gall v.

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

      Assuming the district court’s decision is procedurally sound, we will then

review a sentence for substantive reasonableness under the totality of the

circumstances. Id.; United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

“A sentence is substantively unreasonable if it does not achieve the purposes of

sentencing stated in § 3553(a)[,]” Moran, 778 F.3d at 982 (internal quotation

marks omitted), which include the need to reflect the seriousness of the offense,




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deter criminal conduct, and protect the public from the defendant’s future criminal

conduct, see 18 U.S.C. § 3553(a)(2).3

       We will overturn a sentence as substantively unreasonable only 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) (en banc) (internal

quotation marks omitted). The party challenging the sentence bears the burden of

proving that his sentence is unreasonable. Moran, 778 F.3d at 982.

                                              A.

       Trejo contends that the district court erroneously treated the Sentencing

Guidelines as mandatory. For support, he highlights the court’s comment that

sentencing courts should be “reluctant” to reject guidelines based on policy

disagreements. He asserts that this statement is contrary to the Supreme Court’s

decisions in Spears v. United States, 555 U.S. 261, 129 S. Ct. 840 (2009), and

Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), and shows that

the court believed that it could not vary from the guideline range based on a policy

disagreement with the methamphetamine guidelines.
       3
           The district court must also take into account the nature and circumstances of the
offense, the history and characteristics of the defendant, the kinds of sentences available, the
applicable guideline range, any pertinent policy statements, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1),
(3)-(7).
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       In Kimbrough, the Supreme Court recognized that “district courts are

entitled to reject and vary categorically from the crack-cocaine Guidelines based

on a policy disagreement with those Guidelines.” Spears, 555 U.S.at 266, 129 S.

Ct. at 844 (clarifying Kimbrough); see Kimbrough, 552 U.S. at 91, 128 S. Ct. at

564.   Thus, Kimbrough recognized a more expansive view of district courts’

authority at sentencing, permitting courts “to vary from the crack cocaine

Guidelines based on policy disagreement with them, and not simply based on an

individualized determination that they yield an excessive sentence in a particular

case.” Spears, 555 U.S. at 264, 129 S. Ct. at 843.

       Several of our sister circuits have expressly held that Spears and Kimbrough

mean that district courts have broad authority to premise a variance on

disagreement with the policy of any guideline. See, e.g., United States v. Corner,

598 F.3d 411, 415 (7th Cir. 2010) (en banc) (“We understand Kimbrough and

Spears to mean that district judges are at liberty to reject any Guideline on policy

grounds—though they must act reasonably when using that power.”); United States

v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc) (“[A] district court may

vary from the Guidelines range based solely on a policy disagreement with the

Guidelines, even where that disagreement applies to a wide class of offenders or

offenses.”); United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009)

(collecting cases). Consistent with these circuits, in Irey this Court recognized that


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“Kimbrough allows a district court to vary from the guidelines based solely on its

judgment that the policies behind the guidelines are wrong.” Irey, 612 F.3d at

1212.

        Here, the record contradicts Trejo’s contention that the district court treated

the guidelines as mandatory. 4 In addressing Trejo’s request for a variance—the

focus of the sentencing hearing—the court recognized its general authority to vary

where, “as a matter of policy, and regardless as to this defendant, the Court should

just not follow the sentencing commission’s views about guidelines.” While the

court may not have been familiar with policy-based variances outside of crack-

cocaine cases on the first day of sentencing, the court never suggested that it could

not grant a variance outside of those cases. And, after recessing the hearing for the

evening, the court appears to have conducted independent research regarding the

alleged flaws in the methamphetamine guidelines. When the hearing resumed, the

court denied the motion for a downward variance because Trejo had not

established a “record here that supports a rejection of the policy.”

        Trejo places heavy emphasis on the district court’s statement that sentencing

courts “should be more reluctant” to grant variances based on policy disagreements

than variances based on individual circumstances. But the statement itself implies


        4
          Trejo does not contend that the district court failed to calculate the guideline range or to
consider the § 3553(a) sentencing factors, and the record otherwise shows that the court did not
err in these respects. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.
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that the court understood it had the authority to grant a policy-based variance.

Only if the court believed that it had that authority would it make sense to say the

authority should be used reluctantly.

      The district court’s statement also is not inconsistent with Kimbrough and

Spears.   Kimbrough explains that the Sentencing Commission and sentencing

courts have “discrete institutional strengths.” 552 U.S. at 109, 128 S. Ct. at 574.

Generally, the Commission “has the capacity courts lack to base its determinations

on empirical data and national experience, guided by a professional staff with

appropriate expertise.” Id. Accordingly, “the Commission’s recommendation of a

sentencing range will reflect a rough approximation of sentences that might

achieve § 3553(a)’s objectives.” Id. (internal quotation marks omitted). The

sentencing judge, on the other hand, has greater familiarity with the individual

circumstances of the defendant and case before her and therefore is in a superior

position to apply the § 3553(a) factors in a particular case. Id. The district court’s

comment about being more “reluctant” to grant a variance based on a policy

dispute with the Guidelines merely recognizes that a variance “based solely on the

judge’s view that the Guidelines range fails properly to reflect § 3553(a)

considerations even in a mine-run case,” Id. at 109, 128 S. Ct. at 575, falls outside

of the institutional strengths of a sentencing court.




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      In short, the record shows that the district court understood it had the

discretion to vary downward based on a policy disagreement with the

methamphetamine guidelines but that it declined to exercise that discretion because

Trejo did not show that a variance was warranted. Trejo has not shown that the

district court procedurally erred by treating the methamphetamine guidelines as

mandatory.

                                        B.

      Trejo also contends that his sentence was substantively unreasonable

because the methamphetamine guidelines are not based on empirical evidence,

and, in his view, their application creates unjustly punitive sentences that are

greater than necessary to meet the purposes of sentencing under 18 U.S.C.

§ 3553(a). He asserts that the district court did not properly weigh and consider

these arguments at sentencing. Again, we disagree.

      Section 2D1.1’s Drug Quantity Table reflects a 10-to-1 sentencing disparity

between pure methamphetamine and mixture or non-pure methamphetamine. For

example, to receive a base offense level of 38 under the current Guidelines, the

offense must involve 45 kilograms or more of mixture methamphetamine or 4.5

kilograms of more pure methamphetamine—“Methamphetamine (actual)” or




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“Ice.” 5   U.S.S.G. § 2D1.1(c)(1) (Nov. 2014).            The Drug Equivalency Tables

likewise reflect a 10-to-1 disparity between pure and non-pure methamphetamine.

See id. § 2D1.1 cmt. n.8(D). The commentary to § 2D1.1 explains that drug purity

“is probative of the defendant’s role or position in the chain of distribution” and

“[s]ince controlled substances are often diluted and combined with other

substances as they pass down the chain of distribution, the fact that a defendant is

in possession of unusually pure narcotics may indicate a prominent role in the

criminal enterprise and proximity to the source of the drugs.” Id. § 2D1.1 cmt.

n.27(C).

       In Hayes, which Trejo principally relies upon, a district judge found that the

methamphetamine guidelines were not based on empirical evidence, were

excessive, and failed to promote the purposes of sentencing under § 3553(a).

Hayes, 948 F. Supp. 2d at 1025-29. With respect to the drug-purity disparity, the

judge found that, “[w]hile it may seem logical to punish a pure substance more

than mixed substance, there is no support in the legislative history to explain the

formula underlying greater methamphetamine purity to greater months of

imprisonment.” Id. at 1025. The methamphetamine guidelines can, therefore,

create an unwarranted disparity, particularly where the offender is “merely a


       5
         “Methamphetamine (actual)’ refer[s] to the weight of the controlled substance, itself,
contained in the mixture or substance.” U.S.S.G. § 2D1.1(c) n.(B). “Ice” is at least 80% pure
methamphetamine. See id. § 2D1.1(c) n.(C).
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courier or mule who has no knowledge of the purity of the methamphetamine he or

she is transporting.” Id. Similarly, the judge concluded, because the Guidelines

for drug-trafficking offenses in general are tied to drug quantity—on the

assumption that larger amounts indicate greater responsibility—quantity may be a

poor proxy for culpability in the case of minor participants in a drug enterprise. Id.

at 1027-29.

      Assuming arguendo that the methamphetamine guidelines in general and the

10-to-1 mixture-to-pure methamphetamine ratio in particular are not supported by

empirical evidence, cf. Kimbrough, 552 U.S. at 95, 128 S. Ct. at 567 (noting that

the drug-trafficking guidelines were not developed using an “empirical approach

based on data about past sentencing practices,” but were instead based on the Anti-

Drug Abuse Act of 1986’s “weight-driven scheme”), this fact alone would not

make Trejo’s sentence unreasonable. The lack of empirical evidence is “one

factor” that a district court can consider in exercising its authority to vary from the

Guidelines. See United States v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010).

While Kimbrough and Spears “empowered” district courts with discretion to vary

downward based on a policy disagreement with the applicable guidelines, they did

not “command” district courts to exercise this discretion. Dell v. United States,

710 F.3d 1267, 1279 (11th Cir. 2013).




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      Here, the district court did not abuse its discretion by declining to vary

downward and by imposing a sentence at the bottom of the guideline range.

Significantly, many of the primary concerns identified in Hayes do not apply here

because Trejo was not a minor participant in the methamphetamine distribution

conspiracy. Despite being in prison at the time, he was the conspiracy’s organizer

and leader, with connections to the source of supply in California. Thus, in this

case, drug purity in fact “indicate[s] a prominent role in the criminal enterprise and

proximity to the source of the drugs.” U.S.S.G. § 2D1.1 cmt. n.27(C).

      Moreover, we are satisfied that the district judge “considered the parties’

arguments and ha[d] a reasoned basis for exercising his own legal decisionmaking

authority.”   United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010)

(internal quotation marks omitted). We find no merit in Trejo’s contention that the

district court failed to understand or consider his arguments challenging the

methamphetamine guidelines. The judge’s initial confusion with Trejo’s disparity

arguments is understandable, given that, in the sentencing memorandum, Trejo’s

counsel focused on the disparities between drug crimes and violent crimes and

between methamphetamine crimes and other drug crimes, but at the sentencing

hearing, Trejo’s counsel shifted the focus to the drug-purity disparity.

Notwithstanding some initial confusion, the record reflects that the judge gave

extensive consideration to all of Trejo’s arguments, going beyond even what Trejo


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presented. Indeed, it was the district judge who brought Hayes—the focus of

Trejo’s briefing on appeal—to defense counsel’s attention, not the other way

around. Regarding the drug-purity disparity argument in particular, the judge

issued a written opinion explaining why he found this argument unavailing.

       Overall, the district court recognized that it had the authority to vary

downward based on a policy disagreement with the methamphetamine Guidelines

but exercised its discretion not to do so because Trejo had not shown that the drug-

purity disparity was unwarranted in his case. Trejo had a prior conviction for

second-degree murder and was operating this drug conspiracy while serving the

sentence for that offense.        Also, the 360-month sentence was imposed at the

bottom of the guideline range, and we expect that a sentence within the guideline

range is reasonable.6 United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th

Cir. 2010). Under these circumstances, Trejo’s sentence is reasonable.

       AFFIRMED.




       6
         We note that, even if the district court had found the methamphetamine guideline range
excessive, Trejo does not challenge his status as a career offender, and his guideline range based
on the career-offender offense table, U.S.S.G. § 4B1.1(b), was also 360 months to life
imprisonment.
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