United States of America v. Jose Valentin Carrillo

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2247
___________________________
United States of America
Plaintiff - Appellee
v.
Jose Valentin Carrillo
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
____________
Submitted: September 25, 2020
Filed: December 15, 2020
____________
Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
____________
STRAS, Circuit Judge.
Jose Carrillo received a 190-month sentence after he pleaded guilty to two
drug counts, one for conspiracy and another for possession. Although he claims that
the conspiracy charge violated double jeopardy and that his overall sentence is
substantively unreasonable, we affirm.

-- 1 of 5 --

-2-
I.
Carrillo was involved in two drug deals spanning two states. The first one
was in South Dakota, where Carrillo brokered a sale of about a kilogram of
methamphetamine between a confidential informant and a drug supplier by the name
of Erik Rodriguez-Venegas. The second one happened about a month later and
involved Javier Romero Ochoa, whom Carrillo recruited to transport several
kilograms of methamphetamine. Law enforcement found the drugs in Ochoa’s car
during a traffic stop in Iowa.
These two transactions led to parallel proceedings, one in each state, both in
federal district court. As relevant here, the government filed one conspiracy charge
in South Dakota against Carrillo, Rodriguez-Venegas, and others. See 21 U.S.C.
§§ 841(a)(1), 846. A little over two months later, the government added a conspiracy
charge in Iowa—this time accusing Carrillo of plotting with Ochoa to sell drugs—
to an existing count of possession with intent to distribute methamphetamine. See
18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.
Carrillo tried to put the brakes on the Iowa prosecution—the one now before
us on appeal—because he believed he was being prosecuted twice for the same
conspiracy. His argument was that the Iowa indictment had to be dismissed on
double-jeopardy grounds. See U.S. Const. amend. V. The district court1 disagreed,
concluding that jeopardy had yet to attach in either case.
The double-jeopardy argument turned up once again after he decided to plead
guilty in both cases. First came his guilty plea in Iowa, followed by a guilty plea in
South Dakota, where he received a 51-month sentence. Then came another attempt
to dismiss the conspiracy charge in Iowa. This time, the district court rejected the
argument because, by pleading guilty, he had waived it. Critically, Carrillo never
1 The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

-- 2 of 5 --

-3-
raised his double-jeopardy concerns in South Dakota, despite trying twice in Iowa
and failing each time.
Sentencing in Iowa came last. Based on Carrillo’s military service, work
record, and mental-health struggles, the district court varied downward and imposed
a 190-month concurrent sentence on each count.
II.
The Fifth Amendment to the United States Constitution states that “[n]o
person shall . . . be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. More commonly referred to as the Double Jeopardy
Clause, it “protects against a second prosecution for the same offense after
acquittal . . . [,] against a second prosecution for the same offense after conviction[,]
[a]nd . . . against multiple punishments for the same offense.” Brown v. Ohio, 432
U.S. 161, 165 (1977) (emphasis added) (quotation marks omitted).
Like any other constitutional right that is “personal” to the defendant,
however, double jeopardy can be waived. United States v. Herzog, 644 F.2d 713,
716 (8th Cir. 1981); see also Brady v. United States, 24 F.2d 399, 405 (8th Cir. 1928)
(“The constitutional immunity from second jeopardy is a personal privilege which
the accused may waive.”). One way is by pleading guilty to two facially distinct
offenses, which operates as a concession that the defendant “has committed two
separate crimes.” United States v. Broce, 488 U.S. 563, 569–70 (1989). So when
he pleaded guilty, Carrillo waived his double-jeopardy objection “unless ‘the face
of the record’ at the time the plea was entered show[ed] that the district court did not
have the power to enter the second conviction or to impose sentence.” United States
v. Pierre, 870 F.3d 845, 848 (8th Cir. 2017) (quoting Broce, 488 U.S. at 569).
The district court applied these principles and concluded, after closely
reviewing the indictments and other evidence in the South Dakota and Iowa
prosecutions, that Carrillo had waived any double-jeopardy violation by pleading

-- 3 of 5 --

-4-
guilty to each conspiracy charge. See United States v. Pierre, 795 F.3d 847, 849–50
(8th Cir. 2015). For that reason, the court denied Carrillo’s second motion to
dismiss.
The district court reached the right conclusion, but it overlooked an important
step.2 As we have explained, the double-jeopardy analysis focuses on the record as
it existed “at the time the plea was entered.” Pierre, 870 F.3d at 848. Recall that
“at the time” Carrillo pleaded guilty in Iowa, id., he had not done so in South Dakota,
meaning that jeopardy had not attached there. See United States v. Rea, 300 F.3d
952, 957 (8th Cir. 2002) (suggesting that the earliest point that jeopardy might attach
is when a court accepts a guilty plea). When he pleaded guilty in this case, in other
words, he was not “twice put in jeopardy,” having not yet been placed in jeopardy a
first time. U.S. Const. amend. V; see United v. Lewis, 844 F.3d 1007, 1010 (8th Cir.
2017). Under this unusual scenario, Carrillo should have filed the motion to dismiss
in South Dakota, after he pleaded guilty in Iowa. See Willhauck v. Flanagan, 448
U.S. 1323, 1325–26 (1980) (Brennan, J., in chambers) (explaining that “once
jeopardy . . . attach[es] in one of” two simultaneous proceedings, the defendant can
“make his claim before the second trial judge, at which time the courts can give due
consideration to his” double-jeopardy argument (emphasis added)). For these
reasons, the district court could not have erred when it refused to dismiss the Iowa
conspiracy charge.
III.
Nor is Carrillo’s 190-month prison sentence substantively unreasonable. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (reviewing
this type of challenge for an abuse of discretion). As we have explained, “it is nearly
inconceivable” that once a district court has varied downward, it “abuse[s] its
2 The reason may have been its mistaken assumption that Carrillo had first
pleaded guilty in South Dakota and then in Iowa, rather than the other way around.

-- 4 of 5 --

-5-
discretion in not varying downward [even] further.” United States v. McKanry, 628
F.3d 1010, 1022 (8th Cir. 2011) (quotation marks omitted).
This case is no exception. To be sure, as Carrillo argues, the court could have
placed even more weight on three mitigating factors: his exemplary military service,
mental-health struggles, and lack of criminal history. But “the mere fact that the
court could have weighed the sentencing factors differently does not amount to an
abuse of discretion.” United States v. Hall, 825 F.3d 373, 375 (8th Cir. 2016) (per
curiam).
IV.
We accordingly affirm the judgment of the district court.
______________________________

-- 5 of 5 --