United States of America v. Cesar Cortez

United States Court of Appeals
For the Eighth Circuit
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No. 22-3161
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United States of America
Plaintiff - Appellee
v.
Cesar Cortez
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: June 12, 2023
Filed: July 14, 2023
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Before GRUENDER, ARNOLD, and KELLY, Circuit Judges.
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GRUENDER, Circuit Judge.
Cesar Cortez was found with 890 fentanyl pills after Arkansas state troopers
pulled him over. He admitted that the pills were his, that he had traveled to Arkansas
from Texas to sell them, and that he had successfully done so before. He later
pleaded guilty to possessing a controlled substance with the intent to distribute. See
21 U.S.C. § 841(a)(1), (b)(1)(C).

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At sentencing, the district court1 started with an advisory sentencing
guidelines range of 30 to 37 months’ imprisonment. It then granted the
Government’s motion for a reduction based on Cortez’s substantial assistance to
authorities, see U.S.S.G. § 5K1.1, lowering the range to 21 to 27 months. From
there, the court discussed the 18 U.S.C. § 3553(a) factors. First, it cited the steep
rise in deaths from fentanyl in recent years, including in Arkansas, and stated that
the guidelines “start the base offense level too low” for fentanyl crimes and fail to
account for the drug’s extreme lethality. See U.S.S.G. § 2D1.1(c). The court further
noted that the guidelines treat less lethal drugs like methamphetamine and heroin
more harshly. Next, the court considered the aggravating circumstances of Cortez’s
offense: the large number of pills, the fact that they were falsely labeled as
oxycodone, and Cortez’s prior sales of fentanyl and other drugs for which he was
not charged. The court then turned to mitigating factors. It observed that Cortez
was paid daily rather than for each pill sold, that he was not a kingpin, that he used
neither guns nor violence, that he was remorseful, that he helped law enforcement
investigate his supplier, and that he had a supportive family. The court ultimately
concluded that a within-guidelines sentence would be insufficient and sentenced
Cortez to 46 months’ imprisonment.
On appeal, Cortez contends that his sentence is substantively unreasonable
because the court impermissibly varied upward based on a policy disagreement with
the guidelines’ treatment of fentanyl. He concedes that our review is for an abuse
of discretion. We keep in mind that this review is “narrow and deferential” and that
reversal of a sentence as substantively unreasonable should therefore be rare. See
United States v. Whitlow, 815 F.3d 430, 436 (8th Cir. 2016).
We reject Cortez’s challenge. As an initial matter, a district court may vary
from the guidelines based on its own policy disagreements with those guidelines.
See Kimbrough v. United States, 552 U.S. 85, 101-05 (2007); Spears v. United
1 The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

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States, 555 U.S. 261, 264 (2009) (per curiam). In other words, a variance need not
be based on the court’s “individualized determination that [the guidelines] yield an
excessive sentence in a particular case.” Spears, 555 U.S. at 264-66. To be sure,
Kimbrough and Spears involved policy disagreements that resulted in a downward
variance rather than an upward one, as here. But we see no reason why this
distinction should matter, and Cortez offers none. Section 3553(a) requires courts
to “impose a sentence sufficient, but not greater than necessary” to accomplish the
sentencing goals described in § 3553(a)(2). If “not greater than necessary” means
that policy disagreements can justify a downward variance, then “sufficient” means
that they can justify an upward variance as well. See United States v. Jones, 38 F.4th
727, 729 (8th Cir. 2022); United States v. VandeBrake, 679 F.3d 1030, 1037 (8th
Cir. 2012). Here, the court cogently explained its view that the guidelines generally
treat fentanyl offenses too leniently. It discussed fentanyl’s unique lethality, cited
the recent sharp increase in fentanyl-related deaths, and compared the guidelines for
fentanyl offenses to the guidelines for methamphetamine and heroin offenses. The
district court did not abuse its discretion in relying on its disagreement with the
guidelines to vary upward. See Spears, 555 U.S. at 264-66; VandeBrake, 679 F.3d
at 1037.
Moreover, the court tied its general policy disagreement to the specific
aggravating circumstances of Cortez’s case: the quantity of fentanyl involved, the
concealment of the pills as oxycodone, and the past drug sales for which Cortez was
not charged. The court carefully weighed these against the mitigating factors and
ultimately concluded that they warranted an above-guidelines sentence. We find no
abuse of discretion in that determination. See VandeBrake, 679 F.3d at 1039
(rejecting substantive-reasonableness challenge where “the district court not only
explained at great length why it was concerned about [the antitrust guideline] in
general, but more importantly, explained how the guideline applied to (or rather, did
not adequately account for) [the defendant’s] particular offense conduct”); see also
United States v. Parker, 762 F.3d 801, 812 (8th Cir. 2014) (“Where a district court
in imposing a sentence makes an individualized assessment based on the facts
presented, addressing the defendant’s proffered information in its consideration of

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the § 3553(a) factors, such sentence is not unreasonable.” (brackets and internal
quotation marks omitted)).
Because Cortez’s 46-month sentence is not substantively unreasonable, we
affirm.
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