                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit
                           FOR THE TENTH CIRCUIT
                       _________________________________                September 14, 2018

                                                                        Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                                   Clerk of Court
      Plaintiff - Appellee,

v.                                                         No. 17-3256
                                                (D.C. No. 6:17-CR-10035-EFM-3)
ALEX QUINTANA-TORRES,                                       (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Defendant Alex Quintana-Torres pleaded guilty, without benefit of a plea

agreement, to possessing with intent to distribute methamphetamine and heroin, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The district court sentenced

Quintana-Torres to a term of imprisonment of 180 months. Quintana-Torres now

appeals, arguing that the sentence imposed is substantively unreasonable. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we reject Quintana-Torres’s argument and

affirm the judgment of the district court.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                               I

      On January 16, 2017, Quintana-Torres was arrested at a truck stop in Oakley,

Kansas. A search of the vehicle that Quintana-Torres was driving produced 6.11

kilograms of actual methamphetamine. A search of a second vehicle that was

associated with Quintana-Torres produced two bundles of heroin with a total

combined weight of 2,221.86 grams.

      On February 28, 2017, a federal grand jury returned a two-count indictment

charging Quintana-Torres and two other individuals with possession with intent to

distribute at least fifty grams or more of actual methamphetamine, and at least one

hundred grams or more of a mixture or substance containing a detectable amount of

heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).

      On September 5, 2017, Quintana-Torres entered a plea of guilty to both counts

alleged in the indictment. In doing so, Quintana-Torres acknowledged that on

January 16, 2017, he and other individuals were arrested in Oakley, Kansas, while

transporting heroin and methamphetamine from Las Vegas, Nevada, to Ohio. ROA,

Vol. 1 at 13.

      The probation office prepared a presentence investigation report (PSR).

Because the offenses of conviction “involved two different drug types,” the PSR

converted the drug quantities “to their equivalent weights in marijuana.” ROA, Vol.

2 at 12. Based upon “a quantity of marijuana equivalent to 124,421.86 kilograms,”

the PSR applied a base offense level of 38. Id. After applying two downward

adjustments for acceptance of responsibility, the PSR arrived at a total offense level

                                           2
of 35. Id. The PSR in turn arrived at a total criminal history score of one—which

was based on a 2015 Nevada state conviction for driving under the influence—and a

criminal history category of I. Id. at 13. Together, the total offense level and

criminal history category resulted in an advisory Guidelines sentencing range of 168

to 210 months’ imprisonment. Id. at 23. The PSR also noted that the statutory

minimum term of imprisonment was ten years. Id.

      Quintana-Torres filed a sentencing memorandum asking the district court to

vary downward from the advisory Guidelines sentencing range and impose a term of

imprisonment of 120 months. ROA, Vol. 1 at 22. In support of this request,

Quintana-Torres noted the following:

       his criminal history did not involve any violent conduct, “with the
        exception of a battery arrest involving a male who was involved with
        his then girlfriend,” and his defense was that “he was simply defending
        himself in that incident”;
       he had “no history of any firearm or other weapon offenses”;
       “he ha[d] no other drug offenses, nor d[id] he live the lifestyle of [a]
        drug kingpin”;
       his “parents [we]re elderly” and “[h]e ha[d] a 7-year-old daughter . . .
        with whom he ha[d] a good relationship”;
       “[h]is employment history demonstrate[d] an ability to obtain good
        employment as a cook in fine restaurants,” and “[h]e also is trained in
        auto mechanics and as a medical assistant”;
       he was “a methamphetamine addict” and “[t]his addiction ha[d] cost
        him jobs, an army career, family relationships, and . . . his freedom”;
       “[s]ince being re-arrested after his pretrial release he ha[d] participated
        in AA and NA meetings at Butler County Jail”;
       “there [wa]s nothing to suggest from [the PSR] that he was anything but
        a transporter of illegal narcotics” and “no indication that he knew how
        much narcotics were being transported nor the quality of the narcotics
        being transported”; and
       “while not a minor participant, he did not profit from the crime in the
        manner the major transactional players would have.”

                                           3
       Id. at 21. Quintana-Torres argued that, in light of all these factors, “[a] ten-

year sentence w[ould] reflect the seriousness of the offense, respect for the law, and

just punishment.” Id. at 22. He also argued that “[a] ten-year sentence w[ould]

certainly provide adequate deterrence.” Id. Lastly, he argued that “[a] ten-year

sentence, with drug treatment and removal from drugs, should give him the incentive

and tools to remain drug free.” Id.

       The government filed a response in opposition to Quintana-Torres’s sentencing

memorandum. The government began by asserting that, “although the defendant pled

guilty to the two counts of the Indictment, he has been consistent in minimizing his

knowledge and culpability in the matter.” Id. at 26. In particular, the government

noted that Quintana-Torres, in contrast to his co-defendants, “lied to the [arresting]

officers” regarding his knowledge of and involvement with the drugs and

participants. Id. The government further asserted that “[t]he facts derived from

police reports and interviews of other individuals involved in” the offense indicated

that it was Quintana-Torres who was responsible for “the initial planning, recruiting

of other individuals (including children), hiding and packing the drugs in attempt to

hide them from law enforcement view[,] as well as directing others in their

[respective] roles in the transport of the narcotics.” Id. at 27. In addition, the

government noted that Quintana-Torres, while on pretrial release, “failed to check in

as required by his pretrial release conditions,” “left his residence prior to his

approved exit time,” and “received a citation for battery against his girlfriend.” Id. at

28. Lastly, the government noted that Quintana-Torres’s “bond was subsequently

                                            4
revoked.” Id. In conclusion, the government argued that “a guideline sentence [wa]s

appropriate” for Quintana-Torres. Id.

      Quintana-Torres’s sentencing hearing was held on November 20, 2017.

Defense counsel conceded that “[p]erhaps [Quintana-Torres]” and an unindicted

individual “helped get some people together to transport drugs at the behest of

another person, who was apparently distributing or, actually, selling drugs to a

buyer.” ROA, Vol. 3 at 8. But defense counsel argued that there was “no indication

from anything in the [PSR] that [Quintana-Torres] was the seller or the purchaser of

drugs.” Id. The district court, in turn, noted that among the factors it considered to

be relevant in deciding upon a sentence for Quintana-Torres were his “relative youth”

and “the extremely large quantities of drugs in this case.” Id. at 20. The district

court found it was “most likely true” that Quintana-Torres was not aware “of either

the quantity nor the quality or purity of the drugs,” but concluded that this was “not

determinative under the sentencing factors.” Id. Taking into account the fact that

Quintana-Torres was involved in transporting two types of drugs, and also taking into

account “the quality” and “quantity of drugs,” the district court concluded that

“[n]either a statutory minimum, nor even a low-end guideline sentence” was

sufficient in its view to satisfy purposes set forth in 18 U.S.C. § 3553(a)(2). Id. at

21–22. Instead, the district court concluded that “a mid-tier guideline sentence [wa]s

most appropriate.” Id. at 21. The district court ultimately sentenced Quintana-Torres

to “a term of 180 months on each of Counts 1 and Count 2 of the [i]ndictment, those

terms to run concurrently with each other, for a controlling term of 180 months.” Id.

                                            5
at 24. The district court also imposed a five-year term of supervised release “on each

of Counts 1 and 2, with those terms also running concurrent[,] for a controlling term

of five years of supervision.” Id.

      Final judgment was entered on November 21, 2017. Quintana-Torres filed a

notice of appeal on November 29, 2017.

                                                II

      Quintana-Torres asserts a single issue on appeal: that the 180-month sentence

imposed by the district court is substantively unreasonable. In reviewing this claim,

“we apply the abuse-of-discretion standard.” United States v. Ibanez, 893 F.3d 1218,

1219 (10th Cir. 2018). “Under this standard, we can reverse only if the [180-month]

sentence was arbitrary, capricious, whimsical, or manifestly unreasonable.” Id.

“When evaluating the substantive reasonableness of a sentence, we afford substantial

deference to the district court, and determine whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).” United States v. Gieswein, 887 F.3d 1054, 1064 (10th Cir.)

(quotations omitted), petition for cert. filed, — U.S. — (July 27, 2018) (No. 18-

5538). Further, where, as here, the sentence “fell within the applicable guideline

range,” we must “presume that the sentence was reasonable.” Ibanez, 893 F.3d at

1219. “To rebut this presumption, the defendant [must] show that the statutory

sentencing factors render the sentence unreasonable.” Id.

      Quintana-Torres argues that the district court “gave inadequate weight to

numerous mitigating factors, as well as to the fact that a shorter sentence would have

                                            6
served as an adequate, and equally effective, deterrent.” Aplt. Br. at 8. “For

instance,” he argues, his “long history of addiction was both a mitigating force in and

of itself, but also important because it helped to explain the circumstances that led to

the offense conduct in this case.” Id. at 9. Although Quintana-Torres concedes that

“the district court recognized this point,” he notes that “it did so only after it had

explained its sentence of imprisonment, and in the context of making a treatment

recommendation to” the Bureau of Prisons. Id. Quintana-Torres argues that “[i]t was

manifestly unreasonable for the court to recognize the impact [his] addiction had on

the commission of this offense, but fail to give it any weight in its sentencing

decision.” Id. In addition, Quintana-Torres argues that the district court “failed to

give adequate weight to the fact that [he] had never before served any significant

time in custody” and “had only one prior conviction . . . which counted for only one

criminal history point in this federal sentencing.” Id. at 10.

       “At the same time,” Quintana-Torres argues, “the district court put far too

much weight on the nature and circumstances of the instant offense,” in particular

“the quantities of drugs involved, and . . . Quintana-Torres’s relative culpability in

the group’s failed plan to transport those drugs.”1 Id. at 10–11. In fact, Quintana-

Torres argues, his “lack of knowledge” regarding “the specific quantity or quality of


       1
        Quintana-Torres also challenges “the government’s assessment of relative
culpability,” arguing that it “appears to have been based on hearsay statements made
by [a codefendant] and other members of the transport group to local police, which
were, thereafter, recounted in the PSR.” Aplt. Br. at 11. We need not address this
argument, however, because our focus is solely on the district court’s rationale for
selecting the 180-month sentence.
                                             7
the drugs being shipped . . . was a mitigating circumstance here, particularly where

the quantity drove the sentencing range up to near the top of the guidelines.” Id. at

11.

      After considering the statutory sentencing factors and the record in this case,

we are not persuaded that Quintana-Torres has overcome the presumption of

reasonableness that we must afford to the sentence imposed by the district court. The

sentencing record in this case unquestionably establishes that the district court took

into account “the nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1).

In particular, the district court repeatedly emphasized the fact that the offense

involved the transportation of large quantities of two different types of drugs, and the

fact that Quintana-Torres played a significant role in organizing and carrying out the

transportation scheme. The district court also took into account the type and quantity

of the drugs involved in considering “the need for the sentence imposed . . . to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). Although Quintana-Torres

complains that the district court failed to give adequate weight to his personal

“history and characteristics,” 18 U.S.C. § 3553(a)(1), the record indicates that the

district court did take his history and characteristics into account (particularly his

drug addiction and need for treatment and rehabilitation), but decided that those

factors did not, in light of the nature of the offense and Quintana-Torres’s role

therein, justify a sentence below or even at the bottom of the advisory Guidelines

sentencing range. Instead, the district court expressly “determined that a mid-tier

                                            8
guideline sentence [wa]s most appropriate for” Quintana-Torres, and was “not greater

than necessary to reflect the seriousness of the offense for which [Quintana-Torres

was] convicted, to promote respect for the law, and to provide just punishment.”

ROA, Vol. 3 at 21–22. In sum, we are persuaded that, in light of the statutory

sentencing factors and the particular facts of the offenses of conviction, the sentence

imposed by the district court was entirely reasonable.

      The judgment of the district court is therefore AFFIRMED.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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