[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12512

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

TAURI BENJAMIN RIVAS NUNEZ, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:21-cr-00002-PGB-EJK-2

____________________

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2 Opinion of the Court 21-12512

Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

Tauri Benjamin Rivas Nunez appeals his conviction and 

135-month prison sentence for aiding and abetting Hobbs Act robbery and aiding and abetting the possession of a firearm in furtherance of a crime of violence. The charges stem from the robbery of 

a T-Mobile store. On appeal, Rivas Nunez argues that the district 

court abused its discretion by admitting as evidence WhatsApp1

messages discussing his involvement in the armed robbery of an 

AT&T store several days before the charged offense. He also contends that there was insufficient evidence for a reasonable jury to 

conclude that he knew one of his codefendants was armed. Finally, 

he argues that his sentence is substantively unreasonable. After 

careful review, we affirm in all respects.

I. Background 

A. The Indictment and Codefendants’ Guilty Pleas 

A federal grand jury indicted Rivas Nunez on two counts. 

Count One charged that Rivas Nunez, along with codefendants 

Victor Hugo Castillo Vallejo, Cristian Manuel Rodriguez Nunez, 

1 WhatsApp is an American company that provides messaging, Internet calling, and other services through a smartphone application. Information for 

Law Enforcement Authorities, WHATSAPP, 

https://faq.whatsapp.com/en/general/26000050/?category=5245250 (last 

visited May 11, 2022).

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21-12512 Opinion of the Court 3

and Luis Miguel Valdez Mendez, aided and abetted the armed robbery of a T-Mobile store in Oviedo, Florida, on August 10, 2019, in 

violation of 18 U.S.C. §§ 1951(a) and (b) and 2. Count Two charged

that Rivas Nunez, Castillo Vallejo, and Rodriguez Nunez aided and 

abetted one another in possessing a firearm in furtherance of that 

robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Castillo 

Vallejo and Valdez Mendez pleaded guilty pursuant to written plea 

agreements. They received total sentences of 90 months and 60 

months, respectively. 

B. Motion in Limine 

Before Rivas Nunez’s case proceeded to trial, he filed a motion in limine to exclude from evidence various statements and 

WhatsApp messages about his alleged involvement in the robbery 

of an AT&T store in Orlando on August 6, 2019—four days before 

the T-Mobile robbery in Oviedo. As to the statements, Castillo 

Vallejo told law enforcement that Rivas Nunez conducted surveillance on the AT&T store before thatrobbery, but that Rivas Nunez 

did not enter the store during the robbery because he knew an employee there. As to the WhatsApp messages, Rodriguez Nunez 

messaged Castillo Vallejo on August 6, saying that they should rob 

a local AT&T store using guns and that he and Rivas Nunez would 

tie up the employee. Rodriguez Nunez suggested that Rivas 

Nunez could wear a mask so that the employee, who was his sister-in-law, would not recognize him. The same day, Castillo Vallejo reported that Rivas Nunez was unable to help them. But later 

that afternoon, Castillo Vallejo sent Rodriguez Nunez a message 

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4 Opinion of the Court 21-12512

saying that Rivas Nunez was on his way to pick up Rodriguez 

Nunez. At 2:31 p.m., Rodriguez Nunez sent a message saying that 

he was waiting for Rivas Nunez. At 4:43 p.m., the AT&T store 

called 911 to report a robbery. At 6:20 p.m. and 6:41 p.m., Castillo

Vallejo and Rodriguez Nunez exchanged messages listing abbreviations for items taken in the robbery. 

The next day, August 7, Castillo Vallejo and Rodriguez 

Nunez discussed that Rivas Nunez had attempted to call them. Rivas Nunez wanted to do surveillance on another cell phone store. 

Castillo Vallejo said that Rivas Nunez had made easy money as the 

getaway driver for the AT&T robbery, and that the men should 

make him go inside the store for the next robbery. 

The district court denied Rivas Nunez’s motion to exclude 

the evidence. The court found that the statements and WhatsApp 

messages were not barred as hearsay because they were made during and in furtherance of a conspiracy, which is an exclusion to the 

ban on hearsay. See Fed. R. Evid. 801(d)(2)(E). And although evidence of a prior crime or wrong is not admissible to prove a person’s propensity for wrongdoing, Fed. R. Evid. 404(b), the court 

held that the WhatsApp messages were admissible as non-propensity evidence of Rivas Nunez’s identity, as well as motive, opportunity, preparation, planning, and a pattern of criminal activity. 

The court noted that the AT&T and T-Mobile robberies were “perpetrated in strikingly similar ways,” and that the messages were relevant to proving Rivas Nunez’s identity since he was masked during the T-Mobile robbery. The court added that the messages were 

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also admissible because evidence of the AT&T robbery was inextricably intertwined with evidence of the charged offense.

C. Trial and Post-Trial Motions 

Trial began on May 10, 2021. From the outset, Rivas Nunez

conceded his guilt as to count one of robbery, but disputed count 

two on the basis that he did not know that any of his codefendants 

were armed. 

The government, in its case in chief, called as witnesses the 

employees who were working at the T-Mobile store when it was

robbed on August 10. One employee, Joshua Lopez, testified that 

he saw three men enter the store, each with his face covered. One 

of them—alleged to be Rivas Nunez—grabbed Lopez and put him 

in a chokehold while another—alleged to be Rodriguez Nunez—

took Lopez’s co-worker to the back of the store. Lopez had difficulty breathing and asked his assailant to loosen his grip. The man

loosened his grip briefly to open the cash register, but then resumed a tight chokehold while waiting for his partner to finish in 

the back room. After the men took electronic devices and money, 

they left through the front door.

A key government witness the next day was Castillo Vallejo. 

He testified that Rodriguez Nunez had planned the AT&T robbery

and had spoken about it with Castillo Vallejo and Rivas Nunez on 

August 6. Rivas Nunez knew the AT&T employee who would be 

working at the store because she was a cousin of one of his ex-girlfriends, Castillo Vallejo testified. Rivas Nunez also recruited 

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someone named Tato to help with the robbery. Before the AT&T 

robbery, Castillo Vallejo met Rodriguez Nunez and gave him a 

weapon to use in the robbery, passing the weapon through the 

window of his car. Rivas Nunez and Tato were present at that

time, although Castillo Vallejo could not remember where they

were standing relative to the gun. Castillo Vallejo said the three 

men—Rodriguez Nunez, Rivas Nunez, and Tato—“needed the 

weapon in order to commit the [AT&T] robbery.” 

Four days later was the T-Mobile robbery. Castillo Vallejo 

explained that the men used two vehicles for the robbery to confuse law enforcement. On the way to the robbery, Rivas Nunez 

drove a red KIA Optima, while the rest followed in a white GMC 

Yukon. Castillo Vallejo recalled that, again, he gave Rodriguez 

Nunez his gun to use in the robbery. Although he was not sure 

when he gave Rodriguez Nunez the gun, he thought he did so

while sitting in the white Yukon in the T-Mobile parking lot. Castillo Vallejo was seated in the back seat on the driver’s side and 

handed the gun over the center console to Rodriguez Nunez, who 

sat in the front seat. It was possible for anyone sitting in the vehicle 

to see the transfer of the firearm. As to the execution of the TMobile robbery, the government entered surveillance videos into 

evidence, and Castillo Vallejo identified Rodriguez Nunez and Rivas Nunez as the men shown robbing the store. The surveillance 

videos appeared to show Rodriguez Nunez lifting his shirt to show 

a T-Mobile employee his gun while in the front of the store. And 

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when Rodriguez Nunez took the employee to the back of the store, 

he removed the gun from his waist and held it in his hand. 

On cross-examination, Castillo Vallejo was asked whether 

he had shown Rivas Nunez the weapon before the T-Mobile robbery. Castillo Vallejo testified that he “never said” that he gave 

Rodriguez Nunez the gun in Rivas Nunez’s presence before the TMobile robbery. He was unable to recall whether Rivas Nunez—

who had driven to the store in the KIA Optima—was present when 

the gun was transferred in the Yukon. Castillo Vallejo testified that 

he was not sure whether Rivas Nunez knew about the gun or not. 

The next witness up after Castillo Vallejo was Hannah Scott, 

an AT&T employee who was present for the August 6th robbery. 

She testified, in relevant part, that she could see one of the defendants had a handgun sticking out of his waistband. Although he 

never took it out, she said that “[i]t was clearly a handgun.” 

The government’s final two experts focused their testimony 

on forensic evidence. Nelson Tai, a digital forensics investigator in 

the Seminole County Sheriff’s Office, testified to the following. 

Sometime in 2019 he conducted a forensic examination of Castillo 

Vallejo’s cell phone. The examination revealed 147 WhatsApp 

communications between Castillo Vallejo and Rivas Nunez between August 2 and August 10, 2019. 21 of those communications 

were transmitted on August 6, while 23 were transmitted on August 10. 

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Next, Vivian Lack, an FBI translator, testified that she translated a series of WhatsApp audio and voice messages between Rodriguez Nunez and Castillo Vallejo sent between August 6 and 10. 

At 12:14 p.m. on August 6, Castillo Vallejo sent Rodriguez Nunez 

a message asking him if he could recruit people to go “to the store 

for the things.” He said that Rivas Nunez’s sister-in-law worked at 

the AT&T store and suggested that they could “tie her by her feet 

and hands” and “get all that stuff.” The two men discussed who 

would enter the store and who would remain in the car. At one 

point, Rodriguez Nunez sent an audio message saying that Castillo 

Vallejo would drive the car and wait outside while Rodriguez 

Nunez and Rivas Nunez entered wearing masks. Rodriguez Nunez 

asked Castillo Vallejo to talk to Rivas Nunez and propose that he 

go in the back room during the robbery, while Rodriguez stayed in 

the front “with the heat.” Castillo Vallejo, apparently after speaking with Rivas Nunez, reported that Rivas Nunez said he could not 

go into the store but was “calling some people.” 

Later that day, Castillo Vallejo texted Rodriguez Nunez saying that Rivas Nunez was coming over to pick him up. Rivas 

Nunez was about 30 minutes away. Rodriguez Nunez said that 

they had to leave for AT&T immediately to avoid traffic. Several 

hours later, Castillo Vallejo sent messages listing the names of cell 

phone models and accessories. On August 7, Castillo Vallejo sent 

an audio message to Rodriguez Nunez saying that Rivas Nunez 

wanted to “plan again.” 

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After the government rested its case, Rivas Nunez moved 

for a judgment of acquittal on the basis that Castillo Vallejo testified that he did not know if Rivas Nunez knew about the firearm. 

He argued that Castillo Vallejo had no explanation for how Rivas 

Nunez would have seen him hand the gun to Rodriguez Nunez in 

the Yukon when Rivas Nunez had driven the KIA to the T-Mobile 

store. 

The court denied Rivas Nunez’s motion. Agreeing with the 

government’s view of the evidence, the court found that Rivas 

Nunez did not check on Rodriguez Nunez when he was alone in 

the back room, suggesting that he knew Rodriguez Nunez would 

be safe because he was armed. Further, the court said, T-Mobile 

surveillance cameras showed that Rodriguez Nunez lifted his shirt 

to reveal a firearm, and a reasonable jury could conclude that Rivas 

Nunez saw the gun at this point. Even if this was the first time 

Rivas Nunez saw the gun, the court reasoned, the defendants had 

not yet obtained the phones, and Rivas Nunez had ample opportunity to leave before the robbery was completed. 

The defense then rested its case. Before closing arguments, 

Rivas Nunez renewed his motion for a judgment of acquittal. He 

argued that the evidence indicated that he did not see the gun until 

Rodriguez Nunez revealed it to the T-Mobile employee, and that, 

by that point, he did not have a reasonable opportunity to abandon

the robbery. The court denied his renewed motion. After two and 

a half hours of deliberation, the jury found Rivas Nunez guilty as 

to both counts. 

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Again, Rivas Nunez renewed his motion for judgment of acquittal and requested a new trial in the alternative. He also renewed his objection to the court’s admission of evidence of the 

AT&T robbery. The district court denied all of Rivas Nunez’s motions.

D. Sentencing 

Before sentencing, Rivas Nunez filed a memorandum asking

for leniency and arguing that his sentence should be proportional 

to the sentences of Castillo Vallejo and Valdez Mendez. Rivas 

Nunez expressed remorse for his actions and argued that he was 

unlikely to recidivate. 

A Presentence Investigation Report (PSI) determined that 

the base offense level for aiding and abetting Hobbs Act robbery is 

20 points, based on U.S.S.G. § 2B3.1(a). The PSI applied a two-level 

increase because Rivas Nunez physically restrained Lopez to facilitate the commission of the offense. The result was a total offense 

level of 22 for count one. With a criminal history category of I, the 

PSI calculated the guidelines range at 41 to 51 months’ imprisonment on count one, plus a mandatory 84 month consecutive term 

of imprisonment on count two. The recommended advisory

guidelines range for both offenses, thus, was 125 to 135 months. 

Rivas Nunez raised objections to parts of the PSI, but the district

court overruled those objections and adopted the PSI’s advisory 

range. 

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Rivas Nunez’s counsel argued at the sentencing hearing for

a sentence proportional to Castillo Vallejo’s and Valdez Mendez’s. 

Counsel argued that Rivas Nunez showed compassion during the 

T-Mobile robbery. The thrust of the argument was that, although 

Rivas Nunez placed Lopez in a chokehold, he loosened his grip to 

allow Lopez to breathe. Rivas Nunez took the stand on his own 

behalf and asked for forgiveness and leniency, stating that he made 

a mistake. The district court, however, imposed a sentence of 51 

months for count one and 84 months for count two, for a total of 

135 months. 

II. Discussion 

Our discussion divides into three parts. First, we address the 

evidentiary issues Rivas Nunez raises on appeal. Second, we address the sufficiency of the evidence supporting the jury’s verdict. 

Third, we address whether Rivas Nunez’s sentence was substantively reasonable. 

A. Evidentiary Issues 

Rivas Nunez argues that the district court should not have 

allowed at trial the WhatsApp messages and voicemails related to 

the AT&T robbery that occurred four days before the T-Mobile 

robbery at the center of this case. Our discussion of the admissibility of evidence breaks into two subsections. First, we discuss 

whether the evidence was inadmissible hearsay. Second, we discuss whether the evidence was improperly admitted to show Rivas 

Nunez’s propensity to engage in armed robberies. 

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We review a district court’s rulings on admission of evidence for an abuse of discretion. United States v. Jiminez, 224 F.3d 

1243, 1249 (11th Cir. 2000). We review the district court’s factual 

findings that a statement was made by a co-conspirator in furtherance of a conspiracy under Rule 801(d)(2)(E) under the clearly erroneous standard. United States v. Hough, 803 F.3d 1181, 1193 

(11th Cir. 2015). 

1. Hearsay 

Hearsay is a statement that “the declarant does not make 

while testifying at the current trial or hearing” and that “a party 

offers in evidence to prove the truth of the matter asserted in the 

statement.” Fed. R. Evid. 801(c). A statement is not hearsay, however, if it was made by co-conspirators during the course and in 

furtherance of a conspiracy. Fed. R. Evid. 801(d)(2)(E). For a statement to be admissible under Rule 801(d)(2)(E), the government 

must prove by a preponderance of the evidence that: (1) a conspiracy existed; (2) the conspiracy included the declarant and the defendant against whom the statement is offered; and (3) the declarant made the statement during the course of and in furtherance of 

the conspiracy. United States v. Christopher, 923 F.2d 1545, 1549–

50 (11th Cir. 1991). In analyzing these conditions, the district court 

may rely on information provided by the co-conspirator’s proffered 

statement, as well as independent external evidence. See United 

States v. Byrom, 910 F.2d 725, 735–36 (11th Cir. 1990). 

The first two prongs are easily satisfied here. The evidence 

supported the district court’s finding that Rivas Nunez participated 

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in a conspiracy to rob AT&T. Much of that evidence came from 

the testimony of Castillo Vallejo. He testified that he communicated with Rivas Nunez about the AT&T robbery beforehand. In 

fact, he testified that the co-conspirators chose this particular 

AT&T store because Rivas Nunez knew the woman working there 

and believed that she would be alone. According to Castillo Vallejo, Rivas Nunez recruited Tato to help with the robbery. And 

Castillo Vallejo testified that Rivas Nunez participated in the robbery as the getaway driver. 

Forensic evidence also supported the district court’s finding. 

Forensics investigator Tai testified that Castillo Vallejo and Rivas 

Nunez communicated via WhatsApp 147 times between August 2 

and August 10, including 21 times on August 6. And FBI translator 

Lack testified about numerous WhatsApp messages between Castillo Vallejo and Rodriguez Nunez referencing Rivas Nunez’s involvement in the AT&T robbery. For example, one message

stated that Rivas Nunez was familiar with the AT&T store, another 

indicated that Rivas-Nunez was “calling some people” to help with 

the robbery, and two messages indicated that Rivas Nunez was on 

his way to pick up Rodriguez Nunez. Given Castillo Vallejo’s testimony, the call log, and the contents of the WhatsApp messages, 

there was sufficient proof to enable a jury to determine by a preponderance of the evidence that Rivas Nunez was involved in a 

conspiracy to rob AT&T with Castillo Vallejo and Rodriguez 

Nunez. 

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And on the third prong, the district court did not clearly err 

when it found that the WhatsApp messages were sent during and 

in furtherance of the conspiracy. Though Rivas Nunez argues that 

the crucial WhatsApp communications between Castillo Vallejo 

and Rodriguez Nunez were made before Rivas Nunez became a 

member of any conspiracy, that is not the case. The earliest message admitted into evidence was sent at 12:14 p.m. on August 6, in 

which Castillo Vallejo proposed robbing the AT&T store because 

Rivas Nunez’s sister-in-law worked there. According to the communications, Rivas Nunez had told his co-conspirators that the 

store would be an ideal target because the store employee would 

be working alone. Accordingly, the district court did not clearly 

err in finding that Rivas Nunez had already committed to being a 

member of the conspiracy to rob AT&T by the time Castillo Vallejo texted Rodriguez Nunez on August 6.

Because all three prongs are satisfied, we find that the district 

court did not abuse its discretion by admitting the WhatsApp messages as statements of a co-conspirator in furtherance of a conspiracy. See Christopher, 923 F.2d at 1549–50. 

2. Propensity Evidence 

Extrinsic evidence of any crime, wrong, or prior act is not 

admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character. Fed. R. Evid. 404(b)(1). We have also explained that evidence 

of uncharged conduct is intrinsic rather than extrinsic, and thus 

outside the scope of Rule 404(b) when it is “part of the same 

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scheme or series of transactions and uses the same modus operandi

as the charged offense[].” United States v. Horner, 853 F.3d 1201, 

1214 (11th Cir. 2017). The government argues that the district 

court correctly admitted evidence of the AT&T robbery because it 

was inextricably intertwined with the T-Mobile robbery. On this 

point, the government emphasizes that the robberies occurred 

only four days apart, thus constituting the same scheme or series 

of transactions, and that they involved the same modus operandi: 

multiple robbers entering a store, one robber brandishing a firearm 

and directing an employee to place cell phones and electronic devices into containers, taking cash, and then leaving with the stolen 

electronics and cash. Rivas Nunez counters that the robberies were 

separate and that the similarities between the two occurrences 

were not striking enough to show a modus operandi.

Even if Rivas Nunez is correct on this point, however, we 

can affirm for any reason supported by the record. United States

v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013). And the government 

offers an alternative basis on which the evidence could have been 

properly admitted. Extrinsic evidence of a crime, wrong, or prior 

act may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident.” Fed. R. Evid. 404(b)(2). For such evidence to be admissible, it must satisfy a three-part test: (1) the evidence is relevant to 

an issue other than the defendant’s character; (2) there is sufficient 

proof that a jury could find by a preponderance of the evidence that 

the defendant committed the act; and (3) the probative value of the 

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evidence is not substantially outweighed by undue prejudice, as established in Federal Rule Evidence 403. See United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

Here, on the first prong, evidence of the AT&T robbery was 

likely admissible to show Rivas Nunez’s knowledge that Rodriguez 

Nunez would be armed in the T-Mobile robbery. If Rivas Nunez 

knew that Rodriguez Nunez used a firearm in the AT&T robbery, 

the jury could infer that he would have expected Rodriguez Nunez 

to do the same in the T-Mobile robbery just four days later. See 

Fed. R. Evid. 404(b)(2); cf. United States v. Taylor, 417 F.3d 1176, 

1182 (11th Cir. 2005) (per curiam) (evidence that defendant had a 

prior conviction for being a felon in possession of a firearm was 

admissible to show that he knowingly possessed a firearm in the 

instant case). And on the second prong, there was sufficient evidence to prove by a preponderance of the evidence that the extrinsic act occurred. Castillo Vallejo testified to the robbery as well as 

Rivas Nunez’s involvement, and the government produced communications indicating the same. On the third prong, evidence 

about the AT&T robbery was highly probative of whether Rivas 

Nunez knew that Rodriguez Nunez intended to carry a firearm at 

the T-Mobile robbery, an element of the only count that Rivas 

Nunez contested at trial. And although the evidence was prejudicial as well, the district court instructed the jury not to use the evidence to assess Rivas Nunez’s propensity to commit crimes. We 

thus cannot say that the evidence’s prejudice “substantially outweigh[ed]” its probative value. Accordingly, we find that the 

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district court did not abuse its discretion in admitting evidence of 

the AT&T robbery.

B. Sufficiency of the Evidence 

Rivas Nunez argues next that there was insufficient evidence 

to support the jury’s finding that he knew his codefendant would 

use a gun in the T-Mobile robbery. When a defendant claims that 

the evidence was insufficient to support the jury’s verdict, we conduct a de novo review, viewing the evidence in the light most favorable to the government and resolving all reasonable inferences 

in favor of the verdict. United States v. Foster, 878 F.3d 1297, 1303–

04 (11th Cir. 2018). A jury’s guilty verdict must be affirmed unless 

there is no reasonable construction of the evidence from which the 

jury could have found the defendant guilty beyond a reasonable 

doubt. Id. at 1304. A jury is free to choose among reasonable constructions of the evidence, so it is unnecessary that the evidence 

exclude every reasonable theory of innocence or be wholly inconsistent with every conclusion except that of guilt. Id. 

Here, at a minimum, Castillo Vallejo’s testimony provided 

sufficient evidence that Rivas Nunez knew Rodriguez Nunez used 

a gun during the AT&T robbery. Castillo Vallejo testified that Rivas Nunez was present when he met with Rodriguez Nunez to 

hand off the weapon prior to that robbery. And, as explained 

above, if Rivas Nunez knew that Rodriguez Nunez used a weapon 

in the AT&T robbery, the jury could have inferred that he knew 

Rodriguez Nunez would do the same in the T-Mobile robbery,

only four days later. Cf. Taylor, 417 F.3d at 1182. There was thus 

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sufficient evidence on which to base a guilty verdict, and we affirm 

in this regard.

C. Sentencing 

Finally, Rivas Nunez argues that his sentence was substantively unreasonable. Specifically, he argues that his sentence was 

not proportional to those of similarly situated codefendants Castillo Vallejo and Valdez Mendez. He also argues that he showed 

compassion by loosening the chokehold on Lopez, the store clerk, 

when he had trouble breathing. The district court rejected that argument based in part on the transcript of Lopez’s testimony. 

Lopez testified that Rivas Nunez loosened the chokehold only to 

take money from the cash register. Rivas Nunez complains about 

the district court’s reliance on the trial transcript, saying that he 

could not appropriately respond because he lacked access to the 

transcript.

We review the reasonableness of a sentence under the deferential abuse-of-discretion standard. Gall v. United States, 552 

U.S. 38, 41 (2007). The party challenging the sentence bears the 

burden of demonstrating that it is unreasonable in light of the record, the factors listed in 18 U.S.C. § 3553(a), and the substantial deference afforded sentencing courts. United States v. Rosales-Bruno, 

789 F.3d 1249, 1256 (11th Cir. 2015). We will vacate a lower court’s 

sentence only when we have a “definite and firm conviction that 

the district court committed a clear error of judgment in weighing 

the § 3553(a) factors,” such that the sentence “lies outside the range 

of reasonable sentences.” United States v. Irey, 612 F.3d 1160, 1189 

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(11th Cir. 2010) (en banc), 612 F.3d at 1190 (quoting United States 

v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). The factors delineated in § 3553(a) include the seriousness of the offense, the promotion of respect of the law and just punishment, the protection of 

the public, the nature and circumstances of the offense, the history 

and characteristics of the defendant, and the need to avoid unwarranted sentencing disparities among similar defendants. 18 U.S.C. 

§ 3553(a)(1)–(6). The district court need not weigh all the factors 

equally and can weigh any factor or combination of factors more 

heavily than the guideline range. Rosales-Bruno, 789 F.3d at 1259. 

In making its decision, the district court may consider any relevant 

information with sufficient indicia of reliability. U.S.S.G. 

§ 6A1.3(a). 

When addressing whether a district court has created an unwarranted sentencing disparity among defendants who have committed comparable or less egregious offenses, we conduct a factspecific comparison between the appellant and other defendants. 

Irey, 612 F.3d at 1219–21. However, a disparity between the sentences imposed on codefendants is generally not a basis for relief 

on appeal. United States v. Cavallo, 790 F.3d 1202, 1237 (11th Cir. 

2015). We have upheld varied sentences between codefendants 

convicted as part of the same conspiracy solely because some defendants pleaded guilty and others did not. Id.

Here, Rivas Nunez has not shown that his sentence is substantively unreasonable because, even if he could make a cognizable claim based on a disparity between his sentence and those of 

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his codefendants, he and his codefendants were not similarly situated. Castillo Vallejo pleaded guilty and provided substantial testimony on behalf of the prosecution at Rivas Nunez’s trial. Id. And 

as the district court noted, Valdez Mendez was never charged with 

a firearm offense and pleaded guilty to the robbery charge. Therefore, the Rivas Nunez has not shown a disparity between himself 

and similarly situated codefendants.

The argument that the district court improperly relied on 

the trial transcript is also without merit. Rivas Nunez brought up 

arguments about the chokehold at sentencing and was present at 

trial when Lopez testified about it. Sentencing courts may rely on 

any information with sufficient indicia of reliability, including evidence admitted at trial. U.S.S.G. § 6A1.3.(a). Therefore, we find 

no error in the district court’s reliance on the transcript.

Because the district court did not err in its reliance on the 

trial transcript, nor in imposing a higher sentence on Rivas Nunez

than on his codefendants, we uphold the sentence as substantively 

reasonable.

AFFIRMED. 

USCA11 Case: 21-12512 Date Filed: 06/01/2022 Page: 20 of 20