USA v. Jose Angel Andujar

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14164
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL ANDUJAR,
a.k.a. Zay,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00220-WFJ-MRM-2
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2 Opinion of the Court 22-14164
____________________
Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges
PER CURIAM:
Jose Andujar appeals his sentence of 152 months’ imprison-
ment for conspiracy to distribute and possess with intent to distrib-
ute more than 5 kilograms of cocaine, which was reached by an
upward variance from the guideline range of 87 to 108 months’
imprisonment. Andujar argues that his sentence is substantively
unreasonable because the district court gave insufficient reasons
under 18 U.S.C. § 3553(a) for applying the upward variance. He
also asserts that the district court abused its discretion by compar-
ing his sentence to his dissimilarly situated codefendants and by cre-
ating an unwarranted sentencing disparity between himself and
similarly situated future defendants who will be eligible for
safety-valve relief under U.S.S.G. § 2D1.1(b)(18) once the U.S. Sen-
tencing Commission synchronizes it with the amended
safety-valve provision at 18 U.S.C. § 3553(f )(1).
We review a sentence for substantive reasonableness under
the deferential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). The party challenging the sentence has the
burden of showing that the sentence is unreasonable based on the
facts of the case, the § 3553(a) factors, and the substantial deference
owed to the sentencing court. United States v. Rosales-Bruno, 789
F.3d 1249, 1256 (11th Cir. 2015).
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22-14164 Opinion of the Court 3
A court can abuse its discretion in three ways: (1) by failing
to consider relevant factors, (2) by considering improper factors, or
(3) by committing a clear error in judgment in its assessment of the
relevant factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). The proper factors are listed in § 3553(a) and in-
clude the seriousness of the offense, the history and characteristics
of the defendant, the need for deterrence, and the need to protect
the public. 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C). The
district court holds significant discretion in deciding how to weigh
the § 3553(a) factors, and we cannot substitute our own judgment
on review. United States v. Dougherty, 754 F.3d 1353, 1361 (11th Cir.
2014). However, a sentencing court must ensure that it avoids un-
warranted disparities in sentences between similarly situated de-
fendants. United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir.
2009); 18 U.S.C. § 3553(a)(6).
We may not presume that a sentence outside of the calcu-
lated guideline range is unreasonable, but we do take into account
the extent of the variance in our analysis. Irey, 612 F.3d at 1187. We
have affirmed many sentences varying above the guideline range as
substantively reasonable based primarily on criminal history and
risk of recidivism. See, e.g., Rosales-Bruno, 789 F.3d at 1253, 1256-57
(affirming as substantively reasonable a sentence of 87 months’ im-
prisonment, which included a 60-month upward variance based on
the appellant’s criminal history); United States v. Early, 686 F.3d 1219,
1221-23 (11th Cir. 2012) (affirming as substantively reasonable a
sentence of 210 months’ imprisonment, which included an upward
variance from the guideline range of 78 to 97 months based on the
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4 Opinion of the Court 22-14164
appellant’s criminal history); United States v. Shaw, 560 F.3d 1230,
1235-36, 1239-41 (11th Cir. 2009) (affirming as substantively reason-
able a statutory maximum sentence of 120 months’ imprisonment,
which was an upward variance from the guideline range of 30 to
37 months based on the appellant’s criminal history and risk of re-
cidivism). One sign of reasonableness is that the variance sentence
is “well below the statutory maximum.” United States v. Riley, 995
F.3d 1272, 1278 (11th Cir. 2021).
Here, Andujar’s sentence is not substantively unreasonable
because the district court, in applying the upward variance, only
considered proper factors under § 3553(a) and did not give them an
inappropriate amount of weight in light of the deference it is owed.
Additionally, the court did not create an unwarranted sentencing
disparity between Andujar and future defendants who will be eligi-
ble for guideline safety-valve relief, and it was not improper to com-
pare his sentence to those of his codefendants.
The court’s concern that Andujar recently had been con-
victed based on participation in a cocaine distribution conspiracy,
received a lenient sentence, and very soon after had perpetrated
substantially the same criminal conduct informed its judgment that
Andujar was at a high risk of recidivism and required individual
deterrence. Its consideration of the harsher sentences that
Andujar’s co-conspirators had received was based on both the need
to avoid disparity in sentencing out of fairness and the need to take
account of Andujar’s high-level role within the conspiracy as the
cocaine supplier for those co-conspirators. Finally, its discussion of
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22-14164 Opinion of the Court 5
Andujar’s persistence in continuing participation in the conspiracy,
despite having already been stopped by police while in possession
of cocaine, was relevant both to the seriousness of the offense and
to Andujar’s risk of recidivism. The court’s general concern with
Andujar’s risk of recidivism, the need for deterrence, and his high-
level role in the conspiracy all relate to the court’s expression of the
need to protect the public from this type of behavior. All of these
factors were within the scope of § 3553(a), and the court did not
consider any other factors that fell outside of that scope. See Irey,
612 F.3d at 1189.
Further, there was nothing unreasonable in the way that the
court disagreed with the sentencing calculation and placed more
weight on the factors than was reflected in the guideline range.
Andujar is incorrect to aver that simply because the probation of-
ficer incorporated his criminal history and the facts of his criminal
conduct into the guideline calculation, the judge is unable to give
them any further thought or disagree with how they should be
weighed in determining the sentence. Id. at 1212. The upward var-
iance from the advisory guideline range is substantial, but the final
152-month sentence is well below the maximum penalty of life im-
prisonment, which itself is an indicator of reasonableness. Riley,
995 F.3d at 1278. The 152-month sentence is supported by the facts
of the case and Andujar’s criminal history. It was reasonable for
the court to decide that all of the factors it had assessed indicated
that Andujar had a high likelihood of recidivism and posed a threat
to public safety, and so deserved the extent of the variance above
the guideline range. This Court in the past has affirmed similarly
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6 Opinion of the Court 22-14164
large upward variances primarily based on criminal history and the
danger to society posed by the appellant. See Rosales-Bruno, 789 F.3d
at 1256-57; Early, 686 F.3d at 1221-23; Shaw, 560 F.3d at 1239-41.
Andujar’s claims that his sentence is unduly disproportion-
ate compared to similarly situated future defendants who will be
given safety-valve credit under the Guidelines, and that he should
not be compared with his dissimilarly situated codefendants, are
also unavailing. The sentencing judge expressly stated that, even if
Andujar was eligible for a two-level downward departure under the
guideline safety-valve provision, it still would have varied upward
to the same sentence it imposed. Andujar has not shown that there
are any similarly situated defendants who, given a recent history of
drug distribution and high-level role in a multi-party conspiracy as
a supplier like him, would have received a disproportionately
lighter sentence than he did. Just because he is eligible for safety-
valve relief does not necessarily mean that he is entirely similarly
situated to all other defendants who are also eligible. Andujar’s
safety valve-relief eligibility is only one aspect of his case, and the
court discussed multiple specific ways in which he could be distin-
guished from other defendants who also possess such eligibility.
Thus, it was within the court’s discretion not to rely solely on the
safety valve’s applicability in deciding the sentence and to focus in-
stead on the factors of deterrence, public safety, and the seriousness
of the offense, even if it resulted in a substantial upward variance.
It was also not outside of the court’s discretion to give sub-
stantial weight to Andujar’s central role as a cocaine supplier when
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22-14164 Opinion of the Court 7
determining his sentence in relation to his co-defendants. Contrary
to Andujar’s claims, the district court did not compare his sentence
with his co-conspirators because it had thought that they were sim-
ilarly situated, but rather because it thought that Andujar was more
culpable than the others due to his role as their supplier, noting that
Andujar was “the source of all this.” The sentencing court instead
compared Andujar’s sentence to those of his co-defendants in order
to avoid a significant disparity where a high-level supplier would
receive a more-lenient sentence than those beneath him in the
chain of distribution. That judgment is within its discretion accord-
ing to the principle of fairness underlying the § 3553(a) factors and
the sentencing system as a whole. It also fits squarely within the
judge’s discretion in giving great weight to the factors of the seri-
ousness of the offense and Andujar’s role in the conspiracy.
Dougherty, 754 F.3d at 1361.
Therefore, because the district court considered only proper
factors and gave them an appropriate amount of weight to which
this Court must afford deference, it did not abuse its discretion in
imposing an upward-variance sentence of 152 months.
AFFIRMED.
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