[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11452

Non-Argument Calendar

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D.C. Docket No. 6:14-cr-00046-PGB-TBS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

RICHARD IRIZARRY, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 12, 2016)

Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM: 

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Defendant Richard Irizarry appeals his 120-month sentence imposed after a 

jury found him guilty of attempting to aid and abet the possession with intent to 

distribute and distribution of 500 grams or more of cocaine, in violation of 21 

U.S.C. §§ 841(b)(1)(B)(ii), 846, and using a communication facility to aid in the 

commission of a drug trafficking crime, in violation of 21 U.S.C. § 843(b). On 

appeal, Defendant argues that his sentence, which reflects a 23-month upward 

variance from the top of his advisory guideline range, is substantively 

unreasonable. In particular, he asserts that the district court placed undue weight 

on his abuse of a position of public trust. After careful review, we affirm. 

I. BACKGROUND

According to the Presentence Investigation Report (“PSR”),1 Defendant, a 

police officer and retired member of the U.S. Marine Corps, told a known drug 

dealer—who unbeknownst to Defendant was also a confidential source with the 

Drug Enforcement Administration (“DEA”)—that he wanted to invest in a cocaine

deal. Defendant offered to provide narcotics test kits, as well as security during 

drug deals. After meeting with the confidential source to discuss his interest in 

investing in drugs, Defendant told his supervisor about the deal. Defendant’s 

 1 Defendant objected to the characterization of several of the factual statements in the PSR and 

requested that the district court rely on his memory from trial instead of the PSR’s factual 

recitations. We refer only to the undisputed portions of the PSR. But in any event, Defendant 

does not challenge on appeal any of the facts upon which he was sentenced. 

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supervisor contacted the DEA and instructed Defendant not to have any further 

contact with the confidential source. 

Defendant ignored his supervisor’s instructions, and later met with the 

confidential source. During the meeting, the confidential source told Defendant 

that he had seen a suspicious car in the area. Using the Motor Vehicle Driver and 

Vehicle Identification Database, Defendant looked up the license plate number and 

informed the confidential source that the plate was registered to a government 

vehicle. 

On a different occasion, Defendant provided security during a drug deal for 

which the confidential source paid Defendant $500. The next day, Defendant 

reported to a police department sergeant that he had witnessed the confidential 

source conduct a drug deal. Defendant also provided a written statement of the 

activities he had performed with the confidential source and turned over the $500. 

At a subsequent interview with the DEA, Defendant explained that he played along 

with the confidential source, but he never intended to invest in a cocaine deal or 

earn $500 for providing security during the drug deal. 

Defendant was later indicted and a jury found him guilty of attempting to aid 

and abet the possession with intent to distribute and distribution of 500 grams or 

more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B)(ii), 846 (Count 1), and 

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using a communication facility to aid in the commission of a drug trafficking 

offense, in violation of 21 U.S.C. § 843(b) (Count 3).

2

 

In preparation for sentencing, a probation officer prepared a PSR. The PSR 

assigned Defendant a base offense level of 24, pursuant to U.S.S.G. § 2D1.1(c)(8). 

Defendant received two enhancements, including a two-level increase for his role 

in the offense under U.S.S.G. § 3B1.3, because he abused his position of trust in a 

manner that significantly facilitated the commission or concealment of the offense. 

Based on a total offense level of 28 and a criminal history category of I, 

Defendant’s guideline range was 78 to 97 months’ imprisonment. 

At sentencing, Defendant requested that the district court vary downward to 

the mandatory minimum of 60 months’ imprisonment because he had led an 

exemplary life before this incident. He further asserted that five years’ 

imprisonment was more than sufficient because he was going to be placed in 

solitary confinement for his own protection due to his position as a law 

enforcement officer. The Government responded that an upward variance was 

warranted given the nature and circumstances of the offense and the need for 

specific and general deterrence. 

 2

 The jury acquitted Defendant of Count 2: carrying a firearm during and in relation to, and 

possessing a firearm in further of the drug trafficking crime in Count 1, in violation of 18 U.S.C. 

§ 924(c). 

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When asked by the district court why the two-level enhancement for abuse 

of a position of trust was not sufficient, the Government stated that the 

enhancement covered the fact that Defendant was a police officer. But the 

enhancement did not cover Defendant’s acts of identifying an undercover police 

officer’s vehicle, offering to provide narcotics test kits, or permitting what 

Defendant believed to be one kilogram of cocaine to enter the community. After 

considering the 18 U.S.C. § 3553(a) factors, the district court concluded that the 

guidelines “fail[ed] to capture the breadth and scope of [Defendant’s] conduct, the 

breadth and scope of the risk that [Defendant] presented to his colleagues and [his] 

community and failed to properly deter” both Defendant and the general 

community. Consequently, the district court sentenced Defendant to 120 months 

as to Count 1, and 48 months as to Count 3, to be served concurrently. 

II. DISCUSSION

Using a two-step process, we review the reasonableness of a district court’s 

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th 

Cir. 2014), cert. denied, 135 S. Ct. 764 (2014). We first look to whether the 

district court committed any procedural error, and then we examine whether the 

sentence is substantively reasonable in light of the totality of the circumstances and 

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the 18 U.S.C. § 3553(a) factors. 3 Id. The party challenging the sentence bears the 

burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 

1189 (11th Cir. 2008). We will only vacate a defendant’s sentence 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.” United 

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (quotation omitted). 

Here, Defendant has not shown that his sentence is substantively 

unreasonable. Although Defendant’s 120-month sentence reflects a 23-month 

upward variance from the top of his guideline range of 78 to 97 months’ 

imprisonment, it is still well below the 40-year statutory maximum under 21 

U.S.C. § 841(b)(1)(B)(ii). See United States v. Gonzalez, 550 F.3d 1319, 1324 

(11th Cir. 2008) (indicating that a sentence well below the statutory maximum is 

an indication of reasonableness). 

Moreover, the record reflects that the § 3553(a) factors support the upward 

variance in this case. The district court balanced Defendant’s history and 

 3 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history 

and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to 

promote respect for the law, and to provide just punishment for the offense; (3) the need for 

deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed 

education or vocational training or medical care; (6) the kinds of sentences available; (7) the 

Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; 

(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution 

to victims. 18 U.S.C. § 3553(a). 

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characteristics, including his 22 years of military service and professional awards 

and accolades, against the nature and circumstances of the offense. As noted by 

the district court, Defendant assumed a leadership role in the offense, offered to 

provide narcotics test kits, identified a government vehicle to the confidential 

source, and allowed what he believed to be one kilogram of cocaine to enter the 

community without notifying the DEA or police department. The upward variance 

was also necessary to deter Defendant and the general community from 

committing similar crimes. 

Contrary to Defendant’s contentions, it was reasonable for the district court 

to rely on certain aspects of his conduct when it imposed the upward variance, 

even though it had already considered that conduct when imposing the two-level 

abuse-of-trust enhancement. See United States v. Amedeo, 487 F.3d 823, 833–34 

(11th Cir. 2007) (concluding that it was reasonable, when imposing an upward 

variance pursuant to § 3553(a), for the district court to rely on certain aspects of 

the defendant’s conduct that had been considered in imposing an enhancement 

under U.S.S.G. § 3B1.3). Likewise, the fact that the district court assigned greater 

weight to certain § 3553(a) factors—the nature and circumstances of the offense

and specific and general deterrence—was entirely within its discretion. See United 

States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be accorded any 

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

court. . . .” (quotation omitted)). 

Furthermore, Defendant’s reliance on our decision in United States v. Terry, 

60 F.3d 1541 (11th Cir. 1995), to support his argument that the district court could 

not rely on his conduct involving abuse of trust for both the enhancement and 

upward variance is misplaced. In Terry, we upheld the two-level enhancement for 

abuse of trust, where the defendant, a law enforcement officer, was at the scene of 

a drug deal in his patrol car and ensured that no other officers interrupted the 

transaction. See Terry, 60 F.3d at 1545. Terry did not consider whether the 

defendant’s conduct also warranted an upward variance. See id. Thus, while Terry

supports the proposition that a law enforcement officer can be subject to a twolevel abuse-of-trust enhancement for conduct similar to Defendant’s, it does not 

support Defendant’s assertion that the conduct used to support the enhancement 

may not also be used to justify an upward variance. See id. 

Finally, we are not persuaded by Defendant’s argument that the district court 

violated his equal protection rights under the Fifth Amendment by punishing him 

more severely based on his status as a law enforcement officer. Because 

Defendant did not make this argument before the district court, our review is 

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limited to plain error.4 See United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 

2001) (explaining that we review arguments raised for the first time on appeal for 

plain error). Defendant points to no authority to support his argument that it was 

unconstitutional for the district court to consider his status as a law enforcement 

officer in imposing the upward variance. As such, he cannot show that the district 

court committed plain error. See United States v. Lejarde-Rada, 319 F.3d 1288, 

1291 (11th Cir. 2003) (“It is the law of this circuit that, at least where the explicit 

language of a statute or rule does not specifically resolve an issue, there can be no 

plain error where there is no precedent from the Supreme Court or this Court 

directly resolving it.”). And in any event, in determining the appropriate sentence, 

the district court had discretion to consider the totality of the circumstances and all 

of the § 3553(a) factors, including Defendant’s position as a police officer and his 

use of that position to further his crimes. See Gall v. United States, 552 U.S. 38, 

49–50 (2007) (explaining that the district court should consider all of the § 3553(a) 

factors and “make an individualized assessment based on the facts” in determining 

the appropriate sentence). 

 4 We will only notice plain error if “(1) there is an error in the district court’s determination; 

(2) the error is plain or obvious; (3) the error affects the defendant’s substantial rights in that it 

was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings.” United States v. Clark, 274 F.3d 1325, 1326 (11th 

Cir. 2001). 

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In short, Defendant has not met his burden of showing that the district court 

abused its discretion by imposing a 120-month sentence. Accordingly, 

Defendant’s sentence is AFFIRMED. 

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