[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11269

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

IRVING CEPEDA-CHICO, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cr-00217-GAP-LRH-1

____________________

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2 Opinion of the Court 21-11269

Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

Irving Cepeda-Chico appeals his 168-month sentence after 

pleading guilty to one count of conspiring to distribute and possess 

with intent to distribute fentanyl and twelve counts of distributing 

and possessing with intent to distribute heroin and fentanyl. He 

argues on appeal that: (1) there was insufficient evidence to support 

the district court’s upward departure under U.S.S.G. § 5K2.1; 

(2) the district court failed to state sufficient reasons for its 

departure, as required by 18 U.S.C. § 3553(c)(2); and (3) his 

sentence is procedurally and substantively unreasonable. After 

review, we affirm. 

I. Background 

In October 2019, Cepeda-Chico was charged with one count 

of distributing a controlled substance containing a detectable 

amount of fentanyl, which resulted in the death of M.D. on July 19, 

2019. Thereafter, the government filed a superseding indictment 

that did not contain the initial charge, but instead contained 13 

counts—one for conspiracy to distribute and possess with intent to 

distribute fentanyl and twelve for distributing and possessing with 

intent to distribute heroin. Cepeda-Chico pleaded guilty to all 

thirteen counts, pursuant to a written plea agreement. According 

to the factual basis in the plea agreement, between December 2018 

and July 2019, Cepeda-Chico purchased heroin and fentanyl-laced 

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heroin from a supplier in Mexico and distributed the drugs to 

various individuals in Florida, including an undercover informant

and a man named M.D. In late June 2019, police recorded a call in 

which Cepeda-Chico spoke with his Mexican-based drug supplier 

and told him that the batch of heroin he received from the supplier

“was not good and was burning his customers in their veins.” 

Cepeda-Chico and his supplier arranged for an unnamed buyer to 

buy the rest of Cepeda-Chico’s bad batch. 

On July 18, 2019, Cepeda-Chico met with M.D. and sold him 

heroin. M.D. checked into the hospital later that same day for a 

chronic condition, and he died overnight from ingesting a mixture 

of fentanyl and heroin. Two bags of drugs were discovered on the 

scene, one of which contained 3.76 grams of a mixture of fentanyl 

and heroin and the other contained about half a gram of pure 

heroin. 

Upon Cepeda-Chico’s arrest, he turned over several baggies

of drugs to the police—one contained 198.8 grams of fentanylheroin, another 33.64 grams of heroin, and another 99.8 grams of 

fentanyl-heroin. 

Cepeda-Chico’s resulting guidelines range was 120 months’ 

imprisonment—the statutory mandatory minimum. He faced a 

statutory maximum term of life. The United States Probation 

Office identified M.D.’s death as a potential ground for departure 

under U.S.S.G. § 5K2.1. 

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The government filed a motion for an eight-level upward 

departure under U.S.S.G. § 5K2.1, arguing that Cepeda-Chico 

engaged in the prolonged, wide-spread distribution of 

fentanyl-laced heroin, in disregard of the known dangers from 

fentanyl, which resulted in M.D.’s death. Cepeda-Chico opposed 

the motion, arguing that the government could not meet its 

burden to prove by a preponderance of the evidence that he 

supplied the drugs that resulted in M.D.’s death. He asserted that 

M.D. had a life-long history of intravenous drug abuse that was so 

bad that his forearm was disfigured due to a bone infection. He 

maintained that M.D. procured drugs wherever he could get them, 

and that there was no direct evidence linking Cepeda-Chico to the 

drugs that killed M.D. Cepeda-Chico requested a 120-month 

sentence. 

At sentencing, in support of its motion for an upward 

departure, the government called several witnesses. Christopher 

DeLotte, the Drug Enforcement Agency (DEA) case agent,

testified that he monitored Cepeda-Chico’s phone from June 20, 

2019 through August 6, 2019. In late June, Cepeda-Chico contacted

his drug supplier in Mexico because the drugs were burning 

customers’ veins. The two discussed mixing fentanyl with the 

heroin to try and fix the problem. Cepeda-Chico told his supplier 

that if something went wrong, he was “screwed.” 

During one of the monitored calls, Cepeda-Chico arranged 

to sell five grams of heroin to M.D., and law enforcement arrested

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21-11269 Opinion of the Court 5

M.D. during a traffic stop following the transaction on June 21, 

2019. 

M.D. was released from jail on the night of July 17, 2019,

into the custody of his mother. The next day, M.D.’s mother drove 

him to meet Cepeda-Chico at a Walgreens because he stated that 

he owed Cepeda-Chico money for the June purchase of drugs. 

Surveillance footage from the Walgreens showed M.D. meeting 

with Cepeda-Chico inside Cepeda-Chico’s vehicle. Cepeda-Chico 

admitted to law enforcement that he sold 3 grams of heroin to 

M.D. at the Walgreens and that M.D. was his best customer. 

Cepeda-Chico told law enforcement that he received a call from 

M.D. later that evening, and M.D. told him that the heroin was 

“garbage.” 

On July 19, 2019, DeLotte learned that M.D. died of a drug 

overdose while in the hospital for a chronic condition. In M.D.’s 

hospital room, police found two bags of drugs—one containing just 

heroin and one containing a mixture of heroin and fentanyl, a 

spoon, and a syringe containing heroin and fentanyl. 

On cross-examination, DeLotte testified that M.D.’s mother 

told him that M.D. would also sometimes buy drugs while in Las 

Vegas. He extracted data from M.D.’s phone, but he did not recall 

finding information suggesting that M.D. bought heroin from 

anyone other than Cepeda-Chico. M.D.’s mother picked up M.D. 

from jail, took M.D. to the hospital, and stated that M.D. was with 

her the entire time. Based on Cepeda-Chico’s statement that he 

sold heroin to M.D. just prior to M.D.’s overdose, DeLotte

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6 Opinion of the Court 21-11269

believed that the drug’s Cepeda-Chico sold to M.D. resulted in 

M.D.’s death. DeLotte confirmed that M.D. was facing a 

mandatory-minimum sentence for the drug charge stemming from 

his June arrest, and he had told his mother he was not going to go 

back to jail. 

Testimony was presented that DNA testing on the baggies 

of drugs discovered in M.D.’s hospital room revealed two DNA 

profiles—98% from M.D. and 2% from an unknown contributor—

and that Cepeda-Chico was excluded as a contributor. The 

laboratory analyst confirmed that individuals do not necessarily

leave DNA on every surface they touch, and an individual’s DNA 

could appear on an object they have not touched through 

“secondary transfer” if that individual interacted with someone 

who later touched that object. 

Dr. Marie Hansen, the medical examiner for M.D.’s case, 

testified that M.D.’s death was the result of “[t]he combined 

toxicity of fentanyl and heroin.” M.D. had a “very small amount 

of heroin” present in his system, and “more than three times the 

amount [of fentanyl] that you would expect to put somebody 

under for surgery.” M.D. was given a therapeutic dose of 

morphine at midnight by hospital staff, but Dr. Hansen did not 

believe it contributed to M.D.’s death. Dr. Hansen opined that 

M.D. most likely would not have died without the fentanyl. 

Claudia Beache, M.D.’s mother, testified that M.D. had used 

drugs for over 20 years, and Cepeda-Chico was his main source of 

drugs because he felt confident in the heroin that Cepeda-Chico 

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sold him. She sometimes drove M.D. to these drug transactions 

because she did not feel it was safe for him to drive. She picked 

M.D. up outside the jail on the evening of June 17, 2019, they 

returned home, he slept most of the next morning and then helped 

her with a few chores, and they left the afternoon of June 18, 2019,

to go to the hospital. She confirmed that he never left the home

before they left for the hospital. Before they went to the hospital, 

M.D. had her take him to an ATM because he stated he owed 

money to Cepeda-Chico for the drugs he bought in June, and they 

met Cepeda-Chico at a Walgreens. After meeting with CepedaChico and picking up food at a nearby fast-food restaurant, they 

went to the hospital, M.D. was admitted, and Beache left the 

hospital shortly before 10:00 p.m. On cross-examination, she 

confirmed that M.D. was facing a possible three-year mandatoryminimum sentence for his June arrest, and M.D. told her that he 

did not want to go back to jail. 

M.D.’s sister testified that she talked with him about 

fentanyl issues, but that he stated that he was not concerned 

because he knew the product that he was getting from 

Cepeda-Chico. After M.D.’s death, she found an unread text from 

Cepeda-Chico asking if M.D. was “ready for another batch,” but

she deleted Cepeda-Chico’s text because she did not want her 

mother to see it. 

Following the government’s witnesses, Cepeda-Chico’s 

counsel argued that an upward departure was not appropriate 

because the government had not proved by a preponderance of the 

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8 Opinion of the Court 21-11269

evidence that the drugs Cepeda-Chico sold M.D. were the drugs 

that killed him. He pointed out that two baggies of drugs were 

found in M.D.’s hospital room, and argued that Cepeda-Chico gave 

M.D. the one with pure heroin, not the one with the mixture of 

fentanyl and heroin that killed M.D. He also emphasized that 

Cepeda-Chico’s DNA was not found on either of the baggies. 

With regard to the 18 U.S.C. § 3553(a) sentencing factors, 

Cepeda-Chico’s counsel emphasized that Cepeda-Chico grew up in 

a small, poor town in Puerto-Rico and was raised primarily by his 

mother. Cepeda-Chico had two young children and was going to 

miss their formative years. Counsel emphasized that CepedaChico cooperated with law enforcement as soon as he was 

arrested, was very remorseful, and was not a danger to the public. 

Counsel argued that M.D. “knew what he was doing” and did not 

intend to go back to jail, and that Cepeda-Chico should not be held 

responsible for M.D.’s choice. 

The government argued that Cepeda-Chico distributed 

large quantities of drugs for a living, and he had to be held 

accountable for that as well as for what happened to M.D. The 

government emphasized Cepeda-Chico’s conversations with his 

supplier about the bad batch of heroin and that they discussed 

mixing fentanyl with it. The government argued that an eight-level 

upward departure was warranted because it reflected the offense 

level that Cepeda-Chico would have received had he been 

convicted of distributing drugs containing fentanyl, which resulted 

in the death of another. The district court recessed so that it could 

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21-11269 Opinion of the Court 9

consider all the evidence and allowed the parties to submit 

supplemental briefs. 

Approximately six weeks later, the sentencing hearing 

resumed. The district court explained that it had reviewed the 

transcripts, exhibits, and filings by the parties, and it found “that 

the illegal substance sold by the defendant to Mr. Dozier on July 

18th was the cause of his death,” but determined that the eightlevel upward departure requested by the government was not 

appropriate. Rather, it concluded that a six-level upward departure 

was appropriate under the circumstances because “Cepeda-Chico 

did sell a substance containing fentanyl, which led to the death of a 

human being, and that is definitely a game changer when it comes 

to drug sentencing.” With the upward departure, Cepeda-Chico’s 

new guidelines range was 168 to 210 months’ imprisonment. The 

district court noted that it considered the § 3553(a) factors and 

imposed a sentence of 168 months’ imprisonment, followed by five 

years of supervised release. Cepeda-Chico stated he had no 

objections to the sentence or the manner in which it was 

pronounced. Cepeda-Chico timely appealed. 

II. Discussion 

A. Whether the district court erred in applying the U.S.S.G. 

§ 5K2.1 and upwardly departing from the guidelines range

Cepeda-Chico argues that the there was insufficient 

evidence to support the U.S.S.G. § 5K2.1 enhancement, and the 

district court clearly erred in finding that Cepeda-Chico supplied 

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10 Opinion of the Court 21-11269

the drugs that killed M.D. He maintains that he only sold M.D. one 

bag of pure heroin on July 18, 2019, and that the government failed 

to present any direct evidence that linked him with the bag of the 

fentanyl-heroin mixture, noting that it had DNA from an unknown 

individual on it. He also asserts that testimony established that he 

sold M.D. pure heroin in the past, and that M.D. sometimes bought 

drugs elsewhere when he was out of town. He argues that only 

mere speculation supports the district court’s finding that he sold 

M.D. the drugs that resulted in his death. 

We review the district court’s interpretation and application 

of the Sentencing Guidelines de novo and its factual findings for 

clear error. United States v. Little, 864 F.3d 1283, 1290 (11th Cir. 

2017). We review the district court’s decision to grant an upward 

departure for an abuse of discretion. United States v. Flanders, 752 

F.3d 1317, 1341 (11th Cir. 2014). “For a factual finding to be clearly 

erroneous, this Court, after reviewing all the evidence, must be left 

with a definite and firm conviction that a mistake has been 

committed.” Little, 864 F.3d at 1290 (quotation omitted). A factual 

finding cannot be clearly erroneous where the district court 

chooses between two permissible views of the evidence. United

States v. Wilson, 788 F.3d 1298, 1317 (11th Cir. 2015). 

The sentencing guidelines provide that the district court 

may depart from the guidelines range for certain reasons, including 

if death resulted from the defendant’s conduct. U.S.S.G. §§ 5K2.0, 

5K2.1. Among other things, the extent of the departure depends 

“on the dangerousness of the defendant’s conduct, the extent to 

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which death or serious injury was intended or knowingly risked, 

and the extent to which the offense level for the offense of 

conviction, as determined by the other Chapter Two guidelines, 

already reflects the risk of personal injury.” Id. § 5K2.1.

The district court’s finding that Cepeda-Chico sold M.D. the 

drugs that resulted in M.D.’s death was not clearly erroneous. The 

evidence presented at sentencing indicated that between M.D.’s 

release from jail late on the evening of July 17, 2019, and his 

admission to the hospital on the evening of July 18, 2019, he was 

with his mother the entire time, and his mother drove him to meet 

with Cepeda-Chico on the afternoon of July 18. Cepeda-Chico 

admitted that he sold heroin to M.D. that day. A few hours later, 

M.D. overdosed in the bathroom of his hospital room in the early 

morning hours of July 19. And Cepeda-Chico had conversations in 

late June 2019 with his drug supplier about mixing fentanyl with a 

batch of heroin to prevent it from burning customers’ veins. Based 

on the totality of the evidence, the district court could have 

reasonably inferred that Cepeda-Chico sold M.D. the drugs that 

resulted in his death. 

The lack of Cepeda-Chico’s touch DNA on the baggies of 

drugs found with M.D. and the presence of a very small amount of 

touch DNA from an unknown person on the baggies does not 

necessarily undermine the conclusion that Cepeda-Chico sold 

M.D. the drugs in question. The laboratory technician testified 

that a person does not always leave DNA when he touches an item 

and that there is a possibility of secondary touch DNA transfer.

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The evidence was therefore sufficient to meet the government’s 

burden to prove by a preponderance of the evidence that M.D.’s 

death resulted from an overdose of the drugs he purchased from 

Cepeda-Chico.1 Accordingly, the district court did not abuse its 

discretion in applying § 5K2.1 and upwardly departing from the 

guidelines range. 

B. Whether the district court sufficiently stated its reasons for 

the upward departure

Cepeda-Chico argues that the district court failed to provide 

specific reasons in open court for the upward departure, in 

violation of 18 U.S.C. 3553(c)(2). 

If a district court departs from the guidelines range, it must 

state in open court at sentencing and in a statement of reasons form 

“the specific reason for the imposition of a sentence” outside the 

guidelines range. 18 U.S.C. § 3553(c)(2); U.S.S.G. § 5K2.0(e). 

“[T]he district court’s reasons must be sufficiently specific so that 

an appellate court can engage in the meaningful review envisioned 

by the Sentencing Guidelines.” United States v. Parks, 823 F.3d 

990, 997 (11th Cir. 2016) (quotation omitted). In other words, the 

district court must “answer the key question of why [it] imposed 

an above-guideline sentence.” Id. “If the court does not do this, 

1 Although there may have been a permissible view of the evidence that 

supports Cepeda-Chico’s position, a factual finding is not clearly erroneous 

where the district court chooses between two permissible views of the 

evidence. Wilson, 788 F.3d at 1317. 

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the case must be remanded for resentencing.” Id. at 997 (quotation 

omitted). We review de novo whether the district court complied 

with § 3553(c)(2), even if the defendant failed to object below. Id.

at 996–97. 

Here, the district court stated in open court and on the 

statement of reasons form “the specific reason for the imposition 

of a sentence”—namely, that Cepeda-Chico sold M.D. the drugs 

that resulted in M.D.’s death. See 18 U.S.C. § 3553(c)(2). That 

explanation was sufficient to enable us to engage in meaningful 

appellate review of the upward departure. See United States v. 

Delvecchio, 920 F.2d 810, 813 (11th Cir. 1991) (explaining that the 

district court must provide a statement of reasons under 

§ 3553(c)(2) “so that the reviewing court can determine whether 

the departure was justified”). Although Cepeda-Chico argues that 

the district court should have expounded on its reasoning further 

and explained in detail the factors it considered, we do not expect 

a district court “to articulate [its] findings and reasoning with great 

detail.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010) 

(en banc). Because the district court provided the specific reason 

for the departure and we were able to conduct meaningful review 

of its decision, there was no error. 

C. Whether Cepeda-Chico’s sentence is procedurally and 

substantively reasonable

Cepeda-Chico argues that the district court imposed a 

procedurally unreasonable sentence because its “rote recitation” 

that it considered the 18 U.S.C. § 3553(a) factors was insufficient to 

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show that it actually considered the § 3553(a) factors. He also 

argues that his sentence is substantively unreasonable because the 

district court did not consider mitigating aspects of his background 

and the offense conduct, such as his post-arrest cooperation and 

favorable letters from friends. 

Generally, we review a sentence for both procedural and 

substantive reasonableness under a deferential abuse of discretion 

standard. See Gall v. United States, 552 U.S. 38, 51 (2007). A 

sentence can be procedurally unreasonable if the district court 

“fail[s] to consider the § 3553(a) factors.” Id. However, where as 

here, the defendant did not object to the procedural reasonableness 

of his sentence, we review his procedural reasonableness challenge 

for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 

(11th Cir. 2014).2 

To establish plain error, Cepeda-Chico must show “(1) that 

the district court erred; (2) that the error was plain; and (3) that the 

2 In Holguin-Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020), the 

Supreme Court held that where a defendant advocates for a particular 

sentence in the district court, he preserves a challenge to the substantive 

reasonableness of his sentence. However, the Supreme Court expressly 

declined to address what is sufficient to preserve a procedural challenge. Id.

at 767; see also id. at 767 (“[W]e do not decide what is sufficient to preserve a 

claim that a trial court used improper procedures in arriving at a chosen 

sentence. . . . Nevertheless, as we have previously explained, failing to object 

at all to a procedural error . . . will subject a procedural challenge to plain-error 

review.” (quotation omitted) (Alito, J., concurring)). Therefore, Vandergrift

remains good law.

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error affected his substantial rights. If all three conditions are met, 

we then decide whether the error seriously affected the fairness, 

integrity, or public reputation of judicial proceedings.” Id.

(alterations adopted) (quotations and internal citations omitted). 

He bears the burden of showing that the sentence is procedurally 

unreasonable. United States v. Hill, 783 F.3d 842, 844 (11th Cir. 

2015).

We examine whether a sentence is substantively reasonable 

in light of the totality of the circumstances. Gall, 552 U.S. at 51. 

The district court must issue a sentence that is “sufficient, but not 

greater than necessary” to comply with the purposes of 18 U.S.C. 

§ 3553(a)(2), which include the need for a sentence to reflect the 

seriousness of the offense, promote respect for the law, provide just 

punishment, deter criminal conduct, and protect the public from 

future criminal conduct. 18 U.S.C. § 3553(a). The court must also 

consider the “nature and circumstances of the offense and the 

history and characteristics of the defendant.” Id. § 3553(a)(1). 

“[T]he district court need only ‘acknowledge’ that it considered the 

§ 3553(a) factors, and need not discuss each of these factors . . . .” 

United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) 

(quotation and internal citation omitted). Importantly, the weight 

given to a particular § 3353(a) factor “is committed to the sound 

discretion of the district court,” and it is not required to give “equal 

weight” to the § 3553(a) factors. United States v. Rosales-Bruno, 

789 F.3d 1249, 1254 (11th Cir. 2015) (quotation omitted). 

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The burden rests on the party challenging the sentence to 

show “that the sentence is unreasonable in light of the entire 

record, the § 3553(a) factors, and the substantial deference afforded 

sentencing courts.” Id. at 1256. We will “vacate the sentence if, 

but only if, we are left with the definite and firm conviction that 

the district court committed a clear error of judgment in weighing 

the § 3553(a) factors by arriving at a sentence that lies outside the 

range of reasonable sentences dictated by the facts of the case.” 

Irey, 612 F.3d at 1190 (en banc) (quotation omitted). 

Cepeda-Chico cannot show that any procedural error 

occurred, much less a plain error. In imposing Cepeda-Chico’s 

sentence, the district court stated that it had reviewed the parties’ 

filings, the PSI, the evidence presented at the sentencing hearing, 

and the § 3553(a) factors. The district court was not required to 

discuss each factor. Amedeo, 487 F.3d at 833; see also Irey, 612 F.3d 

at 1195 (en banc). Instead, “an acknowledgement that the district 

court has considered the defendant’s arguments and the § 3553(a) 

factors [is sufficient].” United States v. Taylor, 997 F.3d 1348, 1354–

55 (11th Cir. 2021) (alterations adopted) (quotation omitted).

Similarly, Cepeda-Chico cannot show that the district court 

abused its discretion in imposing a substantively unreasonable 

sentence. Although he quarrels with how the district court 

weighed the relevant factors, the weight to be accorded any given 

§ 3553(a) factor is a matter committed to the sound discretion of 

the district court. Rosales-Bruno, 789 F.3d at 1254 (quotation 

omitted). The district court was entitled to give more weight to 

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the nature and circumstances of the offense and M.D.’s death over 

Cepeda-Chico’s mitigating circumstances. See id. at 1256. 

Moreover, his total 168-month sentence is well below the statutory 

maximum life, which is an indicator of reasonableness. See United 

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (explaining 

that a sentence that is below the statutory maximum is another 

indicator of reasonableness). 

Accordingly, we conclude that Cepeda-Chico’s total 

168-month sentence is both procedurally and substantively 

reasonable, and we affirm. 

AFFIRMED.

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