RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0103p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALEJANDRO COTA-LUNA (17-3692); ANTONIO 

NAVARRO-GAYTAN (17-3694),

Defendants-Appellants.

┐

│

│

│

│

│

│

│

│

┘

Nos. 17-3692/3694

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:16-cr-00307—John R. Adams, District Judge.

Argued: May 2, 2018

Decided and Filed: June 4, 2018

Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Jaime P. Serrat, JAIME P. SERRAT LLC, Cleveland, Ohio, for Appellant in 17-

3692. Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for Appellant in 17-3694. 

Duncan T. Brown, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. 

ON BRIEF: Jaime P. Serrat, Marisa L. Serrat, JAIME P. SERRAT LLC, Cleveland, Ohio, for 

Appellant in 17-3692. Terry H. Gilbert, FRIEDMAN & GILBERT, Cleveland, Ohio, for 

Appellant in 17-3694. Duncan T. Brown, UNITED STATES ATTORNEY’S OFFICE, 

Cleveland, Ohio, for Appellee.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined, and 

KETHLEDGE, J., joined in the result. KETHLEDGE, J. (pp. 16–17), delivered a separate 

opinion concurring in the judgment.

>
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 2

_________________

OPINION

_________________

CLAY, Circuit Judge. Defendants Alejandro Cota-Luna and Antonio Navarro-Gaytan 

appeal their convictions and sentences for conspiracy to possess with intent to distribute at least 

92 kilograms of a mixture or substance containing cocaine, in violation of 21 U.S.C. 

§§ 841(a)(1), (b)(1)(A), and 846. For the reasons set forth below, we VACATE Defendants’ 

convictions and sentences and REMAND their cases with instructions for the district court to 

reconsider whether to accept the plea agreements the parties offered under Rule 11(c)(1)(C) of 

the Federal Rules of Criminal Procedure. We further order that the cases be reassigned on 

remand to a different district court judge.

FACTUAL AND PROCEDURAL HISTORY

In early September 2016, an agent of the Drug Enforcement Agency in Ohio learned 

from colleagues in California that a particular tractor trailer traveling to Cleveland, Ohio, likely 

contained narcotics. When the truck arrived in Cleveland the next morning, investigators were 

waiting. They watched as the driver parked in a fenced-in lot behind a large commercial 

building. Thirty minutes later, a small Nissan sedan driven by Defendants Cota-Luna and 

Navarro-Gaytan entered the parking lot, stopping near the truck. The drivers of the two vehicles 

talked; when they finished, they maneuvered their vehicles to a secluded area of the lot. The 

driver of the truck unhitched the trailer and drove away in the cab. Investigators did not follow 

him, and he was never identified.

After the truck driver left, Cota-Luna and Navarro-Gaytan approached the trailer. Using 

flashlights, they appeared to work on a secret compartment underneath the trailer. At various 

points, they walked back and forth between the trailer and sedan, apparently moving items 

between the vehicles. After around thirty minutes, they drove away in the sedan, leaving the 

trailer unattended. 

A short while later, Ohio State Troopers stopped Defendants’ vehicle, allegedly for 

speeding. During the stop, a narcotics detection dog sniffed the car and alerted the officers to the 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 3

possible presence of narcotics. The officers searched the car but did not find any drugs, money, 

or illegal items. Instead, they found tools—including screwdrivers, pry bars, and a headlamp—

as well as a notebook filled with writing in Spanish. The officers photographed some of the 

items, including the notebook, but allowed Cota-Luna and Navarro-Gaytan to leave with a 

warning for speeding. 

After Cota-Luna and Navarro-Gaytan were released, law enforcement officers obtained a 

search warrant for the secret compartment underneath the trailer, which remained unattended in 

the parking lot. When executing the warrant, officers discovered that the trailer actually had two 

secret compartments, containing around 92 kilograms of cocaine. Cota-Luna and NavarroGaytan were arrested in a hotel, and officers seized three cell phones and the Spanish notebook. 

One cell phone contained coded text messages to and from different phone numbers. The 

notebook was translated and contained the decoded messages: detailed information regarding 

when and where the tractor trailer would arrive in Cleveland and instructions to contact certain 

phone numbers once Cota-Luna and Navarro-Gaytan located the trailer.

In late September 2016, Cota-Luna and Navarro-Gaytan were charged with two crimes: 

(1) conspiracy to possess with intent to distribute at least 92 kilograms of a mixture or substance 

containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and (2) possession 

with intent to distribute at least 92 kilograms of a mixture or substance containing cocaine, in 

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. The mandatory minimum 

sentence for each offense was 10 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A).

The parties began plea negotiations and quickly agreed that Defendants played only a 

small role in the drug conspiracy. In particular, the parties agreed that Defendants, who lived in 

Mexico, were unaware of the nature and amount of drugs contained in the trailer; relied entirely 

on directions sent to Cota-Luna by cell phone; did not organize or plan the criminal activity; and 

were unable to open the secret compartments under the trailer because they lacked the proper 

tools. The parties further agreed that Defendants participated in the crime due to threats from the 

Mexican drug cartel that recruited them. According to the government, there was no reason to 

think that either Defendant stood to profit in any way from the criminal transaction. In addition, 

both Defendants had accepted responsibility for their actions, cooperated fully with the 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 4

government, and expressed remorse. In short, the parties saw Defendants as pawns in a 

dangerous game run by a large, powerful Mexican drug cartel. As the government would later 

explain, international drug traffickers often use “highly segmented and compartmentalized stages 

during shipment.” (R. 74, government sentencing memorandum, PageID# 679.) This ensures 

that “no single actor is fully aware of the scope of the whole conspiracy, thus if they are caught,

there is little useable [sic] information provided to law enforcement.” (Id.) 

Defendants agreed to plead guilty to the conspiracy count under Rule 11(c)(1)(C) of the 

Federal Rules of Criminal Procedure. That rule authorizes plea agreements that, if accepted by 

the district court, specify the exact sentence the district court must enter. See Fed. R. Crim. P. 

11(c)(1)(C). In calculating Defendants’ offense levels under the United States Sentencing 

Guidelines, the plea agreements began with a base offense level of 34. See U.S.S.G. 

§ 2D1.1(c)(3) (base offense level of 34 applies if the crime involved at least 50 but less than 

150 kilograms of cocaine). The plea agreements then applied the “Safety Valve” guideline, 

§ 5C1.2, which authorizes a sentence below the mandatory minimum for certain defendants with 

little or no criminal history. See U.S.S.G. § 5C1.2. This triggered a two-point offense-level 

reduction under an associated guideline, § 2D1.1(b)(17). See § 2D1.1(b)(17) (applying a twopoint offense-level reduction if the Safety Valve guideline was applied). Next, the plea 

agreements provided for a four-point offense-level reduction under guideline § 3B1.2(a) for 

being “minimal participants” in the drug conspiracy; a three-point offense-level reduction under 

guideline § 2D1.1(a)(5)(ii) for being minimal participants in a crime involving a large amount of 

drugs; a two-point offense-level reduction under guideline § 2D1.1(b)(16) for being minimal 

participants who, inter alia, acted out of fear; and a three-point offense-level reduction under 

guideline § 3E1.1 for acceptance of responsibility. This resulted in a final offense level of 20 for 

each Defendant. In light of this offense level and the circumstances of the case, the plea 

agreements specified that Cota-Luna should be sentenced to exactly 36 months’ imprisonment 

and that Navarro-Gaytan should be sentenced to exactly 33 months’ imprisonment.1

 

1The plea agreements did not contain any agreement about Defendants’ criminal history categories and 

therefore did not identify their guideline ranges.
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 5

In January 2017, the parties attended a change of plea hearing, expecting to enter the plea 

agreements. To their surprise, the district court rejected the agreements. When the government 

asked for an explanation, the district court refused to answer, saying “I don’t think it’s 

appropriate” to discuss the matter. (R. 104, plea hearing transcript, PageID# 935.) But the 

parties persisted, asking whether the court objected to the guidelines calculations in the plea 

agreements. The district court responded:

Guidelines are advisory. They are just the starting point. I’ve got to consider 

the—I have to consider the nature and circumstances of the offense, all the overall 

conduct. We have, what, 90 plus kilograms of cocaine? I have other relevant 

conduct that’s going to be part and parcel of the case.

So the guideline computation may be accurate or may not, but my hands are not 

going to be tied when I look at all the various factors that I am required to 

consider.

(Id. at 936.) The district court did not further explain why it found the plea agreements 

objectionable, but it made clear that it would not accept any sort of “C agreement.” (Id.)

After the plea hearing, the parties continued negotiating. Three days later, at a second 

plea hearing, the parties presented the district court with a revised plea agreement for each 

Defendant. The revised plea agreements were made pursuant to Rule 11(c)(1)(B) and therefore 

preserved the district court’s sentencing discretion. See Fed. R. Crim. P. 11(c)(1)(B) 

(authorizing plea agreements that “do[] not bind the court”). Otherwise, however, the revised 

plea agreements were nearly identical to the plea agreements the district court had already 

rejected. In particular, they contained the same guidelines calculations found in the original plea 

agreements.

This time, the district court accepted the plea agreements. In doing so, the district court 

established a factual basis for Defendants’ pleas and confirmed that Defendants were pleading 

guilty voluntarily and intelligently. In addition, the district court informed each Defendant that 

the agreed-upon guidelines calculations were merely advisory. 

A Presentence Investigation Report (“PSR”) was prepared for each Defendant, 

confirming that Defendants played a small role in the drug conspiracy. Each PSR explained that
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 6

based on written notes and text messages located in the defendant’s rental car it is 

clear that these defendants were unaware of th[e] nature and amount of narcotics. 

They relied entirely on directions sent to them via cell phone. They were not part 

of the organization or planning of the criminal activity. Based on hotel records, 

they spent two days at the hotel waiting for further directions. Also, they were 

unable to open the compartment under the trailer because they did not possess the 

proper tools.

(Cota-Luna PSR at ¶ 31; Navarro-Gaytan PSR at ¶ 30.) The PSRs’ offense-level calculations 

mirrored those in the plea agreements, with one exception: the PSRs did not apply a two-point 

offense-level reduction under guideline § 2D1.1(b)(16) for being minimal participants who, inter 

alia, acted out of fear. The PSRs explained that the record did not contain any information about 

why Defendants had committed the offense.

In response to the PSRs’ concerns about the § 2D1.1(b)(16) reduction, Defendants 

submitted sentencing memoranda explaining why they participated in the drug conspiracy. CotaLuna’s sentencing memorandum explained that he “only got involved under the threats and fear 

imposed on himself and his loved ones by Mexican drug traffickers” from Sinaloa, Mexico, “one 

of the most treacherous areas of the country.” (R. 72, Cota-Luna sentencing memorandum, 

PageID# 583.) Navarro-Gaytan’s sentencing memorandum was similar, explaining that he 

“understood from his co-defendant Mr. Cota-Luna, that the narcotics transaction in Cleveland 

was orchestrated by powerful and dangerous people within the cartel and that Mr. Cota-Luna 

himself was too scared to refuse to participate.” (R. 73, Navarro-Gaytan sentencing 

memorandum, PageID# 616.) The government agreed in its sentencing memorandum that all the 

offense-level reductions identified in the plea agreements should apply.

At Defendants’ sentencing hearings, the district court expressed reservations about the 

parties’ guidelines calculations. Among other concerns, the district court stated that Defendants 

probably did not satisfy the Safety Valve requirements. The district court noted that the Safety 

Valve guideline applies only if the defendant “truthfully provided to the Government all 

information and evidence the defendant has concerning the offense” at some point “not later than 

the time of the sentencing hearing.” U.S.S.G. § 5C1.2(a)(5). In the district court’s view, this 

required an in-person meeting with government officers to discuss the offense. Defendants in 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 7

the instant cases had not personally met with government officers. Instead, they relied on their 

attorneys to convey their information to the government.

Given the district court’s concerns about the Safety Valve guideline, the parties requested 

a short continuance of sentencing. The district court granted a continuance of about a month. 

During that time, both Defendants personally met with government officers to discuss their 

crime. After these proffer sessions, the government submitted a supplemental sentencing 

memorandum summarizing what Defendants told them. The sentencing memorandum 

confirmed what everyone already knew: that Defendants admitted their role in the crime but 

denied planning or organizing any aspect of the offense.

After the government filed its supplemental sentencing memorandum, the district court 

entered an order “to provide the Court’s initial advisory Guideline calculation.” (R. 80, 

presentencing order, PageID# 695.) In the order, the district court concluded that neither 

Defendant satisfied the Safety Valve requirements because neither Defendant had personally 

discussed the offense with government officers before commencement of the first sentencing 

hearing. The district court added that Cota-Luna was ineligible for Safety Valve relief for a 

second reason as well: according to the district court, Cota-Luna was an “organizer or leader” of 

the offense because he had “recruited and directed the activities of Gaytan-Navarro [sic].” (Id. at 

701.) Next, the district court concluded that neither Defendant qualified for a minimalparticipant reduction under guideline § 3B1.2(a). The district court reasoned that, as drug 

couriers, Defendants were “indispensable to the success” of the criminal conspiracy. (Id. at 700; 

see also id. at 702–03.) Finally, the district court concluded that Defendants were ineligible for a 

reduction under guideline § 2D1.1(b)(16) because that guideline applies only if the defendant 

received a minimal-participant reduction. Although not explicitly mentioned by the district 

court, Defendants’ failure to qualify for a mitigating-role reduction also disqualified them for a 

reduction under guideline § 2D1.1(a)(5). See U.S.S.G. § 2D1.1(a)(5).

At Defendants’ second sentencing hearings, the district court made rulings that aligned 

with the views expressed in its presentencing order, resulting in a guidelines range of 120 

months’ imprisonment (the mandatory minimum sentence) to 135 months’ imprisonment for 

each Defendant. Specifically, the district court granted each Defendant a three-level reduction 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 8

for acceptance of responsibility but denied Safety Valve relief under guideline § 5C1.2, denied 

the associated offense-level reduction under guideline § 2D1.1(b)(17), denied a minimalparticipant reduction under guideline § 3B1.2(a), and denied reductions under guideline 

§ 2D1.1(b)(16) and (a)(5). In denying Safety Valve relief for Navarro-Gaytan, the district court 

made a finding not mentioned in its presentencing order: that Navarro-Gaytan lied at his proffer 

when he said he did not initially realize the tractor trailer contained narcotics. According to the 

district court, the circumstances of the case and the admissions in Navarro-Gaytan’s plea 

agreement suggested that he knew all along about the drugs.

Because the district court denied Safety Valve relief, each Defendant was subject to a 

mandatory minimum sentence of 10 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A). The 

district court imposed a 10-year sentence on each Defendant, finding the sentences severe but 

appropriate. In explaining why a 10-year sentence was warranted, the district court focused on 

the nature of the offense, the need for deterrence, the characteristics of the Defendants, and other 

factors. Near the end of Cota-Luna’s sentencing, Cota-Luna’s counsel asked the government if it 

stood by the guidelines calculations contained in Cota-Luna’s plea agreement, even though those 

calculations had been rejected by the district court. Counsel for the government responded that 

the government did indeed stand by the parties’ guidelines calculations. Both Defendants timely 

appealed.2

In their briefs, Defendants raise numerous claims. First, Cota-Luna argues that the 

district court abused its discretion in denying his Rule 11(c)(1)(C) plea agreement. Had the 

district court accepted that agreement, it would have been required to sentence him to exactly 

36 months’ imprisonment. Next, both Defendants argue that the district court erred in denying 

Safety Valve relief under guideline § 5C1.2; erred in denying the associated reduction under 

guideline § 2D1.1(b)(17); erred in denying a minimal-participant reduction under guideline 

 

2The plea agreements allowed Defendants to appeal “any sentence to the extent it exceeds the maximum of

the sentencing imprisonment range determined under the advisory Sentencing Guidelines in accordance with the 

sentencing stipulations and computations in this agreement, using the Criminal History Category found applicable 

by the [district] Court.” (R. 61, Navarro-Gaytan plea agreement, PageID# 474–75; R. 62, Cota-Luna plea 

agreement, PageID# 488–89.) Because the district court ruled that both Defendants qualified for a Criminal History 

Rating of I—the lowest level—this means Defendants preserved the right to appeal any sentence exceeding 

41 months’ imprisonment. See U.S.S.G § 5A (Sentencing Table) (recommending 33–41 months’ imprisonment at 

offense level 20, Criminal History Category I).
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 9

§ 3B1.2(a); and erred in denying reductions under guideline § 2D1.1(b)(16) and (a)(5). Finally, 

Navarro-Gaytan raises three additional claims: (1) that if an in-person interview was required for 

a Safety Valve reduction, counsel was ineffective for failing to present Navarro-Gaytan for an 

interview; (2) the district court abused its discretion by denying certain requests for 

continuances; and (3) Navarro-Gaytan’s sentence is substantively unreasonable.

DISCUSSION

We first address whether the district court provided sufficient reasons for rejecting 

Defendants’ Rule 11(c)(1)(C) plea agreements. Because we find that the district court’s reasons 

were insufficient, we vacate Defendants’ convictions and sentences and remand their cases with 

instructions for the district court to again consider whether to accept Defendants’ 

Rule 11(c)(1)(C) plea agreements. We also determine that, in light of the district court’s conduct 

throughout these cases, the proceedings should be reassigned to a different district court judge on 

remand.

I. Defendants’ Rule 11(c)(1)(C) Plea Agreements

Standard of Review

While a defendant has “no absolute right to have a guilty plea accepted,” a court must 

exercise “sound judicial discretion” in determining whether to reject a plea. Santobello v. New 

York, 404 U.S. 257, 262 (1971). “[R]equiring district courts to articulate a sound reason for 

rejecting a plea is the surest way to foster the sound exercise of judicial discretion.” United 

States v. Moore, 916 F.2d 1131, 1136 (6th Cir. 1990). Consequently, “a defendant is entitled to 

plead guilty unless the district court can articulate a sound reason for rejecting the plea.” United 

States v. White, 308 F. App’x 910, 915 (6th Cir. 2009) (quoting Moore, 916 F.2d at 1135–36 (6th 

Cir. 1990)).

3

 

3Although Cota-Luna forcefully argues that the district court should have accepted his Rule 11(c)(1)(C) 

plea agreement, Navarro-Gaytan has not raised the issue in his brief. Nonetheless, because Defendants are similarly 

situated, we consider whether the district court should have accepted the plea agreements from both Defendants. 

See United States v. Pugh, 405 F.3d 390, 401–02 (6th Cir. 2005) (“[T]his Court has discretion to correct plain errors 

affecting important rights of criminal defendants, even when not raised on appeal.” (quoting United States v. 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 10

Analysis

Very few cases address the type of inquiry that a district court should engage in when 

considering whether to accept a plea agreement. But one thing is clear: a district court must 

“rationally construct a decision” based on “all relevant factors.” Moore, 916 F.2d at 1136. 

When considering whether to accept a Rule 11(c)(1)(C) plea agreement, a district court may 

“defer a decision until the court has reviewed the presentence report.” Fed. R. Crim. P. 

11(c)(3)(A). This is generally the preferred practice. See Advisory Committee’s Notes on 1979 

Amendments to Fed. R. Crim. P. 11 (explaining that under Rule 11(c)(3)(A), “[t]he judge may, 

and often should, defer his decision until he examines the presentence report” (emphasis 

supplied)).

In this case, the district court rejected Defendants’ Rule 11(c)(1)(C) plea agreements 

before their PSRs were prepared. In addition, it initially refused to give any explanation for its 

decision, saying it would not be “appropriate” to do so. (R. 104, plea hearing transcript, 

PageID# 935.) But an explanation was more than “appropriate”—it was required. See Moore, 

916 F.2d at 1136 (holding that a district court must “articulate a sound reason for rejecting a 

plea”). When pressed by the government, the district court ultimately expressed two concerns 

with Defendants’ binding plea agreements. First, the district court stated that the sentences 

specified in the agreements might be too lenient given that Defendants were responsible for 

“90 plus kilograms of cocaine.” (R. 104, plea hearing transcript, PageID# 936.) Second, the 

district court stated that it wanted to preserve its sentencing discretion to take into account 

unspecified “relevant conduct” that was “part and parcel of the case.” (Id.) It did not further 

explain its decision.

These were not “sound reasons” for rejecting Defendants’ plea agreements. To be sure, 

92 kilograms is a substantial amount of cocaine. However, Defendants’ Rule 11(c)(1)(C) plea 

agreements already took into account the amount of drugs involved, under guideline 

§ 2D1.1(c)(3). That is why Defendants each received a base offense level of 34, the third highest 

level under the drug quantity table. See U.S.S.G. § 2D1.1(c)(3) (base offense level of 34 applies 

 

Graham, 275 F.3d 490, 521 (6th Cir. 2001)); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial 

rights may be considered even though it was not brought to the court’s attention.”).
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 11

if the crime involved at least 50 but less than 150 kilograms of cocaine). While a district court 

may consider a sentencing factor under 18 U.S.C. § 3553(a) even if that factor was already 

considered under the guidelines, see United States v. Tristan-Madrigal, 601 F.3d 629, 636 n.1 

(6th Cir. 2010), that should have worked in Defendants’ favor in this case. Indeed, there is no 

question that the amount of drugs overrepresented—not underrepresented—the seriousness of 

the offense. Defendants did not know the amount of drugs involved; they were unable to access 

the drugs; and the drugs were never sold. In addition, Defendants did not organize or plan the 

crime; they did not exercise decision-making authority over any aspect of the crime; and they did 

not stand to benefit from it. Consequently, the district court’s concern about the amount of drugs 

involved was not a “sound reason” for rejecting the plea agreements. 

For many of the same reasons, the district court’s vague reference to other “relevant 

conduct” that was “part and parcel of the case” is likewise insufficient to support its rejection of 

the plea agreements. Again, Defendants’ role in the offense was extremely minor. In addition, 

they participated in the crime only because they feared retribution from the Mexican drug cartel 

that recruited them. Taken together, this appears to be one of the rare cases in which every single 

“relevant conduct” consideration—aside from the amount of drugs involved—weighed in favor 

of a light sentence. Indeed, the government does not even argue that other “relevant conduct” 

supported the district court’s rejection of the plea agreements. Instead, the government’s brief 

focuses exclusively on the district court’s concern about the amount of drugs involved. But as 

explained above, that concern was insufficient to support the district court’s rejection of the plea 

agreements.

Accordingly, in these exceptional circumstances, the district court’s rejection of 

Defendants’ plea agreements was an abuse of discretion. It simply did not reach a “rational 

decision” based on “all relevant factors.” Moore, 916 F.2d at 1136. We therefore remand these

cases with instructions for the district court to again consider whether to accept Defendants’ 

Rule 11(c)(1)(C) plea agreements.4

 

4The concurrence warns that we are “allow[ing] the parties to arrogate the district court’s sentencing power 

simply by agreeing upon a particular sentence.” In addition, the concurrence implies that we are deferring to the 

sentencing determinations made by the parties, rather than the sentencing determinations reached by the district 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 12

II. Reassignment on Remand

In his brief and again at oral argument, Navarro-Gaytan argued that his case should be 

reassigned on remand. Although Cota-Luna did not raise the issue in his brief, we consider 

whether his case should be reassigned as well, inasmuch as Defendants are similarly situated.

Legal Standard

“This Court possesses the power, under appropriate circumstances, to order the 

reassignment of a case on remand pursuant to 28 U.S.C. § 2106.” Rorrer v. City of Stow, 

743 F.3d 1025, 1049 (6th Cir. 2014); see also 28 U.S.C. § 2106 (“The Supreme Court or any 

other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any 

judgment, decree, or order of a court lawfully brought before it for review, and may remand the 

cause and direct the entry of such appropriate judgment, decree, or order, or require such further 

proceedings to be had as may be just under the circumstances.”). To determine whether 

reassignment is necessary, this Court considers:

(1) whether the original judge would reasonably be expected to have substantial 

difficulty in putting out of his or her mind previously expressed views or findings; 

(2) whether reassignment is advisable to preserve the appearance of justice; and 

(3) whether reassignment would entail waste and duplication out of proportion to 

any gain in preserving the appearance of fairness.

Rorrer, 743 F.3d at 1049 (quoting U.S. ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 

532–33 (6th Cir. 2012)). “Reassignment is an extraordinary power and should be rarely 

invoked.” Id. (quoting U.S. ex rel. Williams, 696 F.3d at 532–33).

All three factors weigh in favor of reassignment. First, the district judge’s conduct 

throughout these cases suggests that he was predisposed to impose a harsh sentence on each 

Defendant. To start, the district judge rejected Defendants’ Rule 11(c)(1)(C) plea agreements 

before their PSRs were even prepared. Then at sentencing, the district judge rejected, on dubious 

 

court. But we do neither of these things. We agree that a district court has discretion reject a plea agreement that 

specifies a particular sentence. We also agree that the parties’ sentencing determinations are not entitled to 

deference. We simply hold, based on binding precedent, that “a defendant is entitled to plead guilty unless the 

district court can articulate a sound reason for rejecting the plea.” Moore, 916 F.2d at 1135–36 (quoting United 

States v. Delegal, 678 F.2d 47, 50 (7th Cir. 1982)). In the instant cases, the district court did not provide any “sound 

reasons” for rejecting Defendants’ plea agreements.
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 13

grounds, nearly every guidelines reduction identified in Defendants’ plea agreements. For 

example, the district judge initially ruled that Defendants were ineligible for Safety Valve relief 

because they had not personally discussed their crimes with government officers prior to the first 

sentencing hearing. But the Safety Valve guideline does not explicitly require an in-person 

meeting, see U.S.S.G. § 5C1.2, this Court has never suggested that such a requirement is 

implicit, and other Circuits have held that the Safety Valve guideline does not specify any 

particular form that a defendant’s communication must take, see United States v. Tate, 630 F.3d 

194, 200 (D.C. Cir. 2011); United States v. Altamirano-Quintero, 511 F.3d 1087, 1092 n.7, 1093 

(10th Cir. 2007); United States v. Schreiber, 191 F.3d 103, 108 (2d Cir. 1999); United States v. 

Dukes, 147 F.3d 1033, 1035–36 (8th Cir. 1998); United States v. Montanez, 82 F.3d 520, 522–23 

(1st Cir. 1996).

5

 Next, the district judge refused to apply a minimal-participant reduction under 

the guidelines even though Defendants apparently satisfied every single minimal-participant 

factor.6 See U.S.S.G. § 3B1.2 App. Note 3(C) (listing relevant factors). Remarkably, the district 

judge went to the other extreme; he determined that Cota-Luna was an “organizer or leader” of 

the criminal enterprise despite his extremely minor role in the offense.

7

 Later, the district judge 

repeatedly suggested that Navarro-Gaytan had experience drug trafficking, accusing him of 

having “expertise” using “secret compartments . . . in tractor trailer rigs” to transport drugs. 

(R. 88, sentencing transcript, PageID# 758.) Yet there is no evidence in the record that Navarro-

 

5Tellingly, the government has consistently argued throughout these proceedings that an in-person meeting 

is not required for Safety Valve relief.

6

Instead of applying the minimal-participant factors listed in Application Note 3(C), the district judge

focused on Defendants’ role in the conspiracy, finding them indispensable to the success of the criminal enterprise. 

Even accepting this questionable premise, a minimal-participant reduction would still have been warranted. The 

guidelines commentary explicitly states that “[t]he fact that a defendant performs an essential or indispensable role 

in the criminal activity is not determinative.” See U.S.S.G. § 3B1.2, Application Note 3(C). 

7

In concluding that Cota-Luna was an “organizer or leader,” the district court found that “Cota-Luna both 

recruited and directed the activities of Gaytan-Navarro [sic].” (R. 80, presentencing order, PageID# 701). The 

record, however, does not support the finding that Cota-Luna directed Navarro-Gaytan’s activities. Rather, the 

record shows that Cota-Luna and Navarro-Gaytan flew together to Cleveland, received instructions to engage in the 

same activity, jointly purchased tools to open the truck, and helped each other to inspect the truck. Cota-Luna paid 

for the airfare to Cleveland, but Navarro-Gaytan rented the car once they were here. Thus, even if Cota-Luna 

recruited Navarro-Gaytan, Cota-Luna is better described as someone who “merely suggest[ed] committing the 

offense” and not as someone who “exerted some control over at least one individual within [the] criminal 

organization.” United States v. Hopson, 134 F. App’x 781, 795 (6th Cir. 2004) (quoting United States v. GortDiDonato, 109 F.3d 318, 321 (6th Cir. 1997)). The former conduct does not warrant application of the “organizer, 

leader, manager, or supervisor” label, while the latter does.
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 14

Gaytan had any such experience. Taken together, this type of conduct indicates that the district 

judge had made up his mind that Defendants deserved a harsh sentence, without having received 

any evidence to that effect. This suggests that the district judge might have “substantial 

difficulty” putting these views aside on remand. See Rorrer, 743 F.3d at 1049.

Second, reassignment would be advisable to preserve the appearance of justice. We do 

not mean to suggest that the district court displayed personal animus toward the defendants. 

After all, when sentencing Cota-Luna and Navarro-Gaytan, the district court commended CotaLuna’s attorney for his zealous advocacy, offered to recommend that both Defendants be housed 

in their preferred correctional institutions, and offered to have the district court deputy work with 

the Bureau of Prisons to facilitate a visit from Navarro-Gaytan’s terminally ill wife. 

Nevertheless, as described above, the district court appeared predisposed to imposing harsh 

sentences on both defendants, and the district court relied on legally erroneous interpretations of 

the guidelines, speculative musings about the cartel’s motivations, and unsupported assertions 

about Defendants’ knowledge and experience to reach that result. Reassignment therefore is 

warranted to maintain the integrity of our judicial system and to ensure that these cases are heard 

by a judge whose impartiality cannot reasonably be questioned. See Lavin v. Husted, 764 F.3d 

646, 652 (6th Cir. 2014).

Third, reassignment would not result in a waste of judicial resources. There was no trial 

in this case. The record is not complex. See Villegas v. Metropolitan Government of Nashville, 

709 F.3d 563, 580 (6th Cir. 2013) (declining to reassign based, in part, on “the nature of [the] 

complex litigation with multiple experts and significant time spent in discovery”). On remand, 

the new district judge must simply read the Rule 11(c)(1)(C) plea agreements, the PSRs, and a 

few other documents. That is all. “Any lost efficiency is not out of proportion to the gain in 

preserving the appearance of fairness.” Rorrer, 743 F.3d at 1050 (quoting United States v. 

Gapinski, 422 F. App’x 513, 522 (6th Cir. 2011)).

Accordingly, all three factors weigh in favor of reassignment. We therefore determine 

that reassignment is appropriate.
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 15

CONCLUSION

For the foregoing reasons, we VACATE Defendants’ convictions and sentences and 

REMAND their cases with instructions for the district court to again consider whether to accept 

Defendants’ Rule 11(c)(1)(C) plea agreements. We further order that these cases be reassigned 

on remand to a different district court judge.
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 16

_________________

CONCURRENCE

_________________

KETHLEDGE, Circuit Judge, concurring in the judgment. The power to sentence a 

criminal defendant lies not with this court or the parties themselves, but with the district court. 

See, e.g., Gall v. United States, 552 U.S. 38, 51-53 (2007). Our role is simply to review the 

district court’s exercise of that power for an abuse of discretion. And nothing in Criminal Rule 

11 or elsewhere in the law allows the parties to arrogate the district court’s sentencing power 

simply by agreeing upon a particular sentence. Hence that agreement does not create some sort 

of presumption that the district court must then overcome. That the parties agreed upon 

particular sentences here, therefore, does not mean that the district court was obligated to offer 

up reasons as to why those sentences were unreasonable. Instead, that a district court thinks it 

might want to impose a different sentence than the one chosen by the parties—even, say, a 

sentence different by only a month—is reason enough for the court to reject a plea agreement 

under Rule 11(c)(1)(C). Accord United States v. Robertson, 45 F.3d 1423, 1439 (10th Cir. 

1995). In short, the district court owes zero deference to the sentencing determinations of the 

parties; instead all the deference runs the other way. 

Rule 11(c) confirms as much. As an initial matter, contrary to the majority’s suggestion, 

the Rule allows a district court freely to reject an 11(c)(1)(C) agreement before the court reviews 

the defendant’s presentence report. See Fed. R. Crim. P. 11(c)(3)(A). True, the better practice in 

most cases might be to review the report first; but the Rule itself contains no such requirement. 

But more to the point, the Rule itself tells us what “the [district] court must do” when “the court 

rejects” a Rule 11(c)(1)(C) agreement: namely, the court must inform the parties of the rejection 

and advise the defendant of various things—which do not include an explanation as to why the 

court rejected the agreement. See Fed. R. Crim. P. 11(c)(5). 

All that said, a district court should not categorically refuse to consider Rule 11(c)(1)(C) 

agreements, since doing so would make that subsection of the Rule (which is itself law) a dead 

letter. And though the court need not formally recite its reasons for rejecting such an agreement, 

the record as a whole must afford our court an adequate basis to determine whether the rejection 
Nos. 17-3692/3694 United States v. Cota-Luna, et al. Page 17

was an abuse of discretion. See, e.g., United States v. Howard, 644 F.3d 455, 459 (6th Cir. 

2011). Such abuses remain possible: if the record indicates that the district court rejected the 

agreement for an impermissible reason, for example, that could be an abuse of discretion. See 

Robertson, 45 F.3d at 1438 (district court’s rejection of a plea agreement based upon the court’s 

own trial calendar was an abuse of discretion).

An impermissible reason is what I think supports vacatur of the district court’s rejection 

of the plea agreement here. Specifically, the record as a whole suggests that the court’s rejection 

was based in part upon the court’s belief (as the court explained in a later hearing) that the 

defendants did not qualify for safety-valve relief under U.S.S.G. § 5C1.2. As the Majority 

explains, Maj. Op. at 12-13, that belief was legally mistaken. And a decision based upon a legal 

mistake is an abuse of discretion. See United States v. Mandoka, 869 F.3d 448, 452-53 (6th Cir. 

2017).

For these reasons, I concur in the judgment only.