USA v. Crisanto Diego Trejos Ortiz

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10750
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20401-DMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRISANTO DIEGO TREJOS ORTIZ,
a.k.a. Crisanto Diego Trejos-Ortiz,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 20, 2013)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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We sua sponte vacate and reconsider our original opinion in this matter. We
substitute the following opinion for our original opinion.
Crisanto Diego Trejos Ortiz appeals his sentence of 180 months of
imprisonment, following his pleas of guilty to smuggling goods from the United
States, 18 U.S.C. §§ 554, 2, and possessing a firearm as a convicted felon, id.
§ 922(g)(1). Trejos Ortiz appeals the enhancement of his sentence for being a
manager of an organization that illegally exported components for firearms and the
reasonableness of his sentence. We affirm.
The district court did not abuse its discretion when it enhanced Trejos
Ortiz’s sentence for his role as a manager. A defendant is subject to a three-point
increase in his base offense level if he served as “a manager or supervisor (but not
an organizer or leader) and the criminal activity involved five or more participants
or was otherwise extensive.” United States Sentencing Guidelines Manual
§ 3B1.1(b) (Nov. 2011). The district court could determine Trejos Ortiz’s role
based on the facts in his presentence investigation report. See United States v.
Bennett, 472 F.3d 825, 832 (11th Cir. 2006). Although Trejos Ortiz objected to his
classification as a manager, at his sentencing hearing, he challenged only the “legal
issue” of how his conduct “compar[ed] . . . [to] the other conspirators that were
involved and the different roles of all of them.” Trejos Ortiz admitted, by
“fail[ing] to object to [the] allegations of fact in [his presentence report],” United

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States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006), that he provided currency,
shipping information, and storage locations for the organization; he rented a garage
used to store and package components to export; and he gave instructions to other
members of the organization. Trejos Ortiz also admitted to facts establishing that
he had exercised “control over at least one other participant in the criminal
activity.” United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010). Trejos
Ortiz confessed to federal investigators that he directed David Loaiza to retrieve a
shipment of 27 receivers and gave Loaiza cash and an automobile to transport the
shipment. Trejos Ortiz argues that he was subordinate to Andres Campo, but that
does not absolve Trejos Ortiz for the logistical support he provided the
organization or his role in directing Loaiza to undertake activities that benefitted
the organization. See United States v. Jones, 933 F.2d 1541, 1546–47 (11th Cir.
1991).
The district court also did not abuse its discretion when it sentenced Trejos
Ortiz to a term of 120 months for his smuggling crime to run consecutively to a
term of 60 months for his firearm offense. At the request of the government, the
district court varied upward from Trejos Ortiz’s advisory guideline range of 87 to
108 months. The district court provided five reasons for its upward variance: (1)
Trejos Ortiz’s “actions contributed to and led to the death of cohort Erik
Comesana” or, “[a]t a minimum[,] [established that] he was an accessory after the

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fact”; (2) the grouping of Trejos Ortiz’s offenses did not account for his illegal
possession of two firearms; (3) Trejos Ortiz “was involved . . . [in a sophisticated
operation to] ship[] firearms to Colombia, a source country”; (4) he “used his
status as a DEA confidential informant . . . [to] stay[] in the country and . . . to
commit further crimes”; and (5) he had a “history of drug dealing and arms
trafficking and [had] consistently manipulated the justice system.” Trejos Ortiz
challenges the finding that he was involved with the murder, but we cannot say that
finding is clearly erroneous in the light of Trejos Ortiz’s admissions that he had
accompanied Comesana to lawyers’ offices, monitored the status of Comesana’s
cooperation with authorities for Campo, saw Comesana’s dead body, disposed of
Comesana’s vehicle, and continued thereafter to participate in the organization.
See United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999).
The district court reasonably determined that an upward variance was necessary to
address the statutory purposes of sentencing. 18 U.S.C. § 3553(a). Trejos Ortiz
had violated the law repeatedly, twice entering the United States illegally,
committed crimes of escalating violence, and flagrantly disregarded the law by
feigning cooperation with authorities while attempting to convince third parties to
dispose of incriminating evidence. Trejos Ortiz’s sentence is reasonable.
We AFFIRM Trejos Ortiz’s sentence.

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