[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11727

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

ABEL BELTREZ, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:19-cr-00489-WFJ-CPT-2

____________________

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 1 of 7
2 Opinion of the Court 21-11727

Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Abel Beltrez was convicted of conspiracy to possess a 

substance containing fentanyl with intent to distribute. The district 

court imposed a sentence of 240 months—the statutory maximum. 

Beltrez argues that his sentence is procedurally and substantively 

unreasonable and that the district court violated his Fifth and Sixth 

Amendment rights by considering improper facts. But the district 

court did not err in imposing Beltrez’s sentence. We therefore 

affirm.

The facts underlying Beltrez’s conviction are not in dispute. 

One summer day in 2019, Vincent Trujillo picked up a known 

heroin dealer in his van, then dropped him off after circling a 

parking lot one time. Later that day, Trujillo died from a fentanyl 

overdose. After setting up controlled buys with the dealer who had 

supplied Trujillo’s fentanyl, the police eventually obtained a 

warrant to search the dealer’s house—one that he shared with 

Beltrez. Beltrez, the dealer, and several other occupants were 

arrested when police found controlled substances, drug 

paraphernalia, and firearms scattered throughout the house. 

Fifteen grams of a substance containing the same type of fentanyl 

sold to Trujillo were found on Beltrez’s person. Further 

investigation revealed that Beltrez supplied heroin and fentanyl to 

the other residents of the house and provided food and lodging in 

exchange for their willingness to conduct drug transactions on his 

behalf.

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 2 of 7
21-11727 Opinion of the Court 3

Beltrez pleaded guilty to one charge of conspiracy to possess 

a controlled substance (fentanyl) with intent to distribute. See 21 

U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C). The presentence 

investigation report calculated that under the Sentencing 

Guidelines, Beltrez faced a sentence of 41 to 51 months. It noted, 

however, that several factors weighed in favor of an upward 

departure. For instance, it explained that multiple prior sentences 

were treated as a single sentence on one occasion in 2008, lowering 

Beltrez’s base offense level and criminal history category. 

Furthermore, while Beltrez had not been charged with causing 

Trujillo’s death, the fact that death had resulted from the charged 

conduct could also justify an upward departure.

The district court agreed. It explained that Trujillo’s death 

was “a knowing and reasonably foreseeable outcome of a drug 

distribution conspiracy” that Beltrez had aided and abetted. On top 

of that, Beltrez had managed to insulate himself from the 

consequences of the conspiracy by using the other residents of the 

house to conduct risky drug transactions like the one that caused 

Trujillo’s overdose. In other words, even though he was a key 

player in the operation, Beltrez had managed to allocate most of 

the risk to his subordinates. The court was also troubled by 

Beltrez’s “very substantial criminal history” and his participation in 

an organized crime group. In light of all this, the court applied an 

upward variance to Beltrez’s sentence and imposed the maximum 

penalty allowed by statute: 240 months of imprisonment. See 21 

U.S.C. §§ 846, 841(b)(1)(C).

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 3 of 7
4 Opinion of the Court 21-11727

On appeal, Beltrez argues that his sentence is procedurally 

and substantively unreasonable and that the district court’s 

consideration of uncharged conduct (and of Trujillo’s death) 

invalidates the sentence. He is wrong on all counts.

First, the district court did not procedurally err. We 

consider the procedural fairness of a sentence before its substantive 

reasonableness, and do so under an abuse-of-discretion standard. 

Gall v. United States, 552 U.S. 38, 51 (2007). A district court may 

commit procedural error by “failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as 

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, 

selecting a sentence based on clearly erroneous facts, or failing to 

adequately explain the chosen sentence—including an explanation 

for any deviation from the Guidelines range.” United States v. 

Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quoting Gall, 552 U.S. 

at 51).

Beltrez points to no specific alleged procedural error, and we 

find none ourselves. The district court correctly explained that the 

Sentencing Guidelines provided for a range of 41 to 51 months and 

that those Guidelines were advisory. It imposed a sentence only 

after considering the factors outlined in “[§] 3553(a)(1) through (7)” 

in light of the record. The court’s reasoning reveals no reliance on 

any clearly erroneous fact. And the court explains its deviation 

from the Guidelines range in considerable detail, outlining several 

specific factors justifying its variance. Beltrez’s sentence was 

procedurally valid.

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 4 of 7
21-11727 Opinion of the Court 5

Second, the sentence is substantively reasonable. We again 

apply the abuse-of-discretion standard to this inquiry, which 

requires us to “take into account the totality of the circumstances.” 

Gall, 552 U.S. at 51. One such circumstance is the extent to which 

the sentence falls outside the range of the Sentencing Guidelines, 

but we “may not apply a presumption of unreasonableness” simply 

because a sentence is outside that range. Id. Instead, we “must 

give due deference to the district court’s decision that the § 3553(a) 

factors, on a whole, justify the extent of the variance.” Id. We may 

find a sentence to be unreasonable if it “does not achieve the 

purposes of sentencing stated in § 3553(a)”—that is, if the district 

court “weighed the factors in a manner that demonstrably yields 

an unreasonable sentence.” Pugh, 515 F.3d at 1191 (quotation 

omitted).

That is not the case here. The district court considered the 

relevant § 3553(a) factors and explained why a sentence of 240 

months was no greater than necessary to achieve the purposes of 

sentencing. Although Trujillo’s death was “not intended,” the 

court correctly noted that it indicated “the nature and severity of 

the criminal activity” in which Beltrez had engaged. See 18 U.S.C. 

§§ 3553(a)(1), 3553(a)(2)(A). The court also pointed out Beltrez’s 

significant criminal history, which was “understated” due to the 

way in which Beltrez had been previously sentenced and which 

therefore was not fully reflected in the Guidelines range. And as 

explained above, the court was troubled by the “unusually 

pernicious” method of drug distribution employed by Beltrez, 

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 5 of 7
6 Opinion of the Court 21-11727

which allowed him to easily shift legal consequences onto dealers 

working for him.

Beltrez’s arguments that the court failed to properly weigh 

mitigating factors are not persuasive. The court acknowledged 

Beltrez’s difficult life circumstances, but explained that any 

mitigation was “outweighed significantly by the pretty much 

nonstop criminal activity” in which he engaged. Beltrez now 

argues that he “will be of little risk to reoffend and will be of an 

even lesser risk to the public upon his release from prison.” But 

this unsupported statement does not offset the district court’s 

concerns about his organized crime activity, his extensive criminal 

history, and his lack of lawful work experience. 

Although the district court varied upward from the 

Sentencing Guidelines recommendation, it did so based on the 

seriousness of the offense, the circumstances of the case, and the 

need to prevent Beltrez from committing further criminal acts. 

Beltrez’s sentence thus does not lie “outside the range of 

reasonable sentences dictated by the facts of the case.” See Pugh, 

515 F.3d at 1191 (quotation omitted). 

Finally, Beltrez argues that the district court improperly 

considered uncharged conduct in formulating his sentence. The 

district court specifically discussed Trujillo’s death as a factor 

supporting its upward variance. But Beltrez was not charged with 

distribution resulting in death, so Beltrez contends that this was a 

violation of his Fifth and Sixth Amendment rights.

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 6 of 7
21-11727 Opinion of the Court 7

We review the constitutionality of a defendant’s sentence de 

novo. United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir. 

2010). But here we are bound by precedent, which “squarely holds 

that sentencing judges may find facts under an advisory Guidelines 

system so long as the sentence imposed does not exceed the 

statutory maximum.” Id. at 1269; see also Witte v. United States, 

515 U.S. 389, 397–404 (1995). The district court did not exceed the 

statutory maximum, so its consideration of facts not charged in the 

indictment and not found by a jury did not violate Beltrez’s 

constitutional rights.

We AFFIRM Beltrez’s sentence.

USCA11 Case: 21-11727 Date Filed: 06/10/2022 Page: 7 of 7