UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ALEX QUINTANA-TORRES, Defendant - Appellant. No. 17-3256 (D.C. No. 6:17-CR -10035-EFM-3) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ Defendant Alex Quintana-Torre s pleaded guilty, without benefit of a plea agreement, to possessing with int ent to distribute methamphetam ine and heroin, in violation of 21 U.S. C. §§ 841(a)(1) and (b)(1)(A). The distric t court sentenced Quintana-Torres to a term of imprisonmen t of 180 months. Quint ana-Torres now appeals, arguing that the sent ence imposed is substantively unr easonable. Exercising jurisdiction pursuant to 28 U.S.C . § 1291, we reject Quintana-T orres’s argument and affirm the judgment of t he district court.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 14, 2018
Elisabeth A. Shumaker Clerk of Court2 I On January 16, 2017, Quintana-To rres was arrested at a truck st op in Oakley, Kansas. A search of the vehicle that Quintana-Torres was drivi ng produced 6.11 kilograms of actual methampheta mine. A search of a second vehi cle that was associated with Quintana-Torres produced two bundles of heroin with a total combined weight of 2,221.86 grams. On February 28, 2017, a federal g rand jury returned a two-count indictment charging Quintana-Torres and tw o other individuals with possess ion with intent to distribute at least fifty grams o r more of actual methamphetami ne, and at least one hundred grams or more of a mixt ure or substance containing a de tectable amount of heroin, in violation of 21 U.S. C. §§ 841(a)(1) and (b)(1)(A). On September 5, 2017, Quintana- Torres entered a plea of guilty to both counts alleged in the indictment. In doing so, Quintana-Torres acknow ledged that on January 16, 2017, he and other i ndividuals were arrested in Oak ley, Kansas, while transporting heroin and methamphe tamine from Las Vegas, Nevada, to Ohio. ROA, Vol. 1 at 13. The probation office prepared a presentence investigation repor t (PSR). Because the offenses of convicti on “involved two different drug types,” the PSR converted the drug quantities “to their equivalent weights in m arijuana.” ROA, Vol. 2 at 12. Based upon “a quantity o f marijuana equivalent to 124 ,421.86 kilograms,” the PSR applied a base offense le vel of 38. Id. After applyin g two downward adjustments for acceptance of r esponsibility, the PSR arrived a t a total offense level3 of 35. Id. The PSR in turn arri ved at a total criminal histor y score of one—which was based on a 2015 Nevada state conviction for driving under t he influence—and a criminal history category of I . Id. at 13. Together, the tota l offense level and criminal history category resulte d in an advisory Guidelines se ntencing range of 168 to 210 months’ impris onment. Id. at 23. The PSR also noted th at the statutory minimum term of imprisonmen t was ten years. Id. Quintana-Torres filed a senten cing memorandum asking the distri ct court to vary downward from the advisory Guidelines sentencing range and impose a term of imprisonment of 120 m onths. ROA, Vol. 1 at 22. In support of this request, Quintana-Torres noted the following:

 his criminal history did not in volve any violent conduct, “with the exception of a battery arrest invol ving a male who was involved with his then girlfriend,” and his de fense was that “he was simply d efending himself in that incident”;

 he had “no history o f any firearm or othe r weapon offenses”;

 “he ha[d] no other drug offens es, nor d[id] he live the lifesty le of [a] drug kingpin”;

 his “parents [we]re elderly” and “[h]e ha[d] a 7- year-old daugh ter . . . with whom he ha[d] a good relationship”;

 “[h]is employment history dem onstrate[d] an ability to obtain g ood employment as a cook in fine restaurants,” and “[h]e also is tr ained in auto mechanics and as amedical assistant”;

 he was “a methamphetamine addict” and “[t]his addiction ha[d] c ost him jobs, an army career, family relationships, and . . . his f reedom”;

 “[s]ince being re-arrested after h is pretrial release he ha[d] participated in AA and NA meetings a t Butler County Jail”;

 “there [wa]s nothing to suggest fro m [the PSR] that he was anyt hing but a transporter of illegal narcotic s” and “no indication that he knew how much narcotics were being transp orted nor the quality of the narcotics being transported”; and

 “while not a minor participant , he did not profit from the crim e in the manner the major transactiona l players would have.”4 Id. at 21. Quintana-Torres argu ed that, in light of all these factors, “[a] tenyear sentence w[ould] reflect the seriousness of the offense, r espect for the law, and just punishment.” Id. at 22. He also argued that “[a] ten-yea r sentence w[ould] certainly provide adequate deter rence.” Id. Lastly, he argued that “[a] ten-year sentence, with drug treatment a nd removal from drugs, should gi ve him the incentive and tools to remain drug free.” Id. The government filed a respons e in opposition to Quintana-Torre s’s sentencing memorandum. The government began by asserting that, “although the defendant pled guilty to the two counts of the Indictment, he has been consist ent in minimizing his knowledge and culpability in the matter.” Id. at 26. In parti cular, the government noted that Quintana-Torres, in c ontrast to his co-defendants, “ lied to the [arresting] officers” regarding his knowledge of and involvement with the d rugs and participants. Id. The government further asserted that “[t]he facts derived from police reports and interviews of other individua ls involved in” the offense indicated that it was Quintana-Torres w ho was responsible for “the initia l planning, recruiting of other individuals (including ch ildren), hiding and packing t he drugs in attempt to hide them from law enforcement vi ew[,] as well as directing oth ers in their [respective] roles in the trans port of the narcotics.” Id. at 27. In addition, the government noted that Quintana-T orres, while on pretrial releas e, “failed to check in as required by his pretrial rel ease conditions,” “left his resi dence prior to his approved exit time,” and “receive d a citation for battery again st his girlfriend.” Id. at 28. Lastly, the government noted that Quintana-Torres’s “bond was subsequently5 revoked.” Id. In conclusion, the government argued that “a gu ideline sentence [wa]s appropriate” for Quintana-Torres. Id. Quintana-Torres’s sentencing hear ing was held on November 20, 2 017. Defense counsel conceded that “[p] erhaps [Quintana-Torres]” and an unindicted individual “helped get some peopl e together to transport drugs at the behest of another person, who was apparen tly distributing or, actually, s elling drugs to a buyer.” ROA, Vol. 3 at 8. But d efense counsel argued that the re was “no indication from anything in the [PSR] that [ Quintana-Torres] was the selle r or the purchaser of drugs.” Id. The district court , in turn, noted that among the factors it considered to be relevant in deciding upon a se ntence for Quintana-Torres wer e his “relative youth” and “the extremely large quantitie s of drugs in this case.” Id . at 20. The district court found it was “m ost likely true” that Quintana-Torres was not aware “of either the quantity nor the quality or purity of the drugs,” but concl uded that this was “not determinative under the sentenci ng factors.” Id. Taking into account the fact that Quintana-Torres was involved in transporting two types of drugs , and also taking into account “the quality” and “quantity of drugs,” the district cou rt concluded that “[n]either a statutory minimum , nor even a low-end guideline se ntence” was sufficient in its view to satis fy purposes set forth in 18 U.S. C. § 3553(a)(2). Id. at 21–22. Instead, the district c ourt concluded that “a mid-tier guideline sentence [wa]s most appropriate.” Id. at 21. T he district court ultimately s entenced Quintana-Torres to “a term of 180 months on each o f Counts 1 and Count 2 of the [i]ndictment, those terms to run concurrently with e ach other, for a controlling te rm of 180 months.” Id.6 at 24. The district court also i mposed a five-year term of sup ervised release “on each of Counts 1 and 2, with those te rms also running concurrent[,] for a controlling term of five years of supe rvision.” Id. Final judgment was entered on N ovember 21, 2017. Quintana-Torr es filed a notice of appeal on November 29, 2017.
II Quintana-Torres asserts a singl e issue on appeal: that the 180- month sentence imposed by the district court is substantively unreasonable. I n reviewing this claim, “we apply the abuse-of-discreti on standard.” United States v. Ibanez, 893 F.3d 1218, 1219 (10th Cir. 2018). “Under th is standard, we can reverse on ly if the [180-month] sentence was arbitrary, caprici ous, whimsical, or manifestly un reasonable.” Id. “When evaluating the substantive reasonableness of a sentence, we afford substantial deference to the district court, and determine whether the leng th of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United St ates v. Gieswein, 887 F.3d 1054 , 1064 (10th Cir.) (quotations omitted), petition fo r cert. filed, — U.S. — (July 27, 2018) (No. 18- 5538). Further, where, as here, the sentence “fell within the applicable guideline range,” we must “presume that the sentence was reasonable.” Ib anez, 893 F.3d at 1219. “To rebut this presumption , the defendant [must] show th at the statutory sentencing factors render the sentence unreasonable.” Id. Quintana-Torres argues that the district court “gave inadequate weight to numerous mitigating factors, as well as to the fact that a shor ter sentence would have7 served as an adequate, and equally effective, deterrent.” Aplt . Br. at 8. “For instance,” he argues, his “long history of addiction was both a mitigating force in and of itself, but also important b ecause it helped to explain the circumstances that led to the offense conduct in this case .” Id. at 9. Although Quintan a-Torres concedes that “the district court recognized t his point,” he notes that “it d id so only after it had explained its sentence of impri sonment, and in the context of m aking a treatment recommendation to” the Bureau o f Prisons. Id. Quintana-Torres argues that “[i]t was manifestly unreasonable for the court to recognize the impact [ his] addiction had on the commission of this offe nse, but fail to give it any weight in its sentencing decision.” Id. In addition, Qui ntana-Torres argues that the d istrict court “failed to give adequate weight to the fact that [he] had never before ser ved any significant time in custody” and “had only one prior conviction . . . which counted for only one criminal history point in this f ederal sentencing.” Id. at 10. “At the same time,” Qu intana-Torres argues , “the district court put far too much weight on the nature and circ umstances of the instant offe nse,” in particular “the quantities of drugs involve d, and . . . Quintana-Torres’s relative culpability in the group’s failed plan to transport those drugs.” 1 Id. at 10–11. In fact, QuintanaTorres argues, his “lack of knowl edge” regarding “the specific quantity or quality of

1 Quintana-Torres also challenges “the government’s assessment o f relative culpability,” arguing that it “app ears to have been based on he arsay statements made by [a codefendant] and other memb ers of the transport group to local police, which were, thereafter, recounted in the PSR.” Aplt. Br. at 11. We need not address this argument, however, because our foc us is solely on the district court’s rationale for selecting the 180-month sentence.8 the drugs being shipped . . . was a mitigating circumstance her e, particularly where the quantity drove the sentenci ng range up to near the top of t he guidelines.” Id. at
11. After considering the statutory sentencing factors and the reco rd in this case, we are not persuaded that Quinta na-Torres has overcome the pres umption of reasonableness that we must affo rd to the sentence imposed by t he district court. The sentencing record in this case unquestionably establishes that the district court took into account “the nature and circ umstances of the offense.” 18 U.S.C. § 3553(a)(1). In particular, the district court repeatedly emphasized the fac t that the offense involved the transportation of l arge quantities of two differen t types of drugs, and the fact that Quintana-Torres played a significant role in organizi ng and carrying out the transportation scheme. The distr ict court also took into accou nt the type and quantity of the drugs involved in consider ing “the need for the sentence imposed . . . to reflect the seriousness of the offense, t o promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). Altho ugh Quintana-Torres complains that the district cour t failed to give adequate weigh t to his personal “history and characteristics,” 18 U.S.C. § 3553(a)(1), the reco rd indicates that the district court did take his histo ry and characteristics into ac count (particularly his drug addiction and need for tr eatment and rehabilitation), but decided that those factors did not, in light of the nature of the offense and Quin tana-Torres’s role therein, justify a sentence below or even at the bottom of the advisory Guidelines sentencing range. Instead, the di strict court expressly “deter mined that a mid-tier9 guideline sentence [wa]s most appr opriate for” Quintana-Torres, and was “not greater than necessary to reflect the ser iousness of the offense for wh ich [Quintana-Torres was] convicted, to promote resp ect for the law, and to provide just punishment.” ROA, Vol. 3 at 21–22. In sum, we are persuaded that, in light of the statutory sentencing factors and the part icular facts of the offenses of conviction, the sentence imposed by the district cour t was entirely reasonable. The judgment of the district c ourt is therefore AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge