United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-2247

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Jose Valentin Carrillo

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Southern District of Iowa - Council Bluffs

____________ 

Submitted: September 25, 2020

 Filed: December 15, 2020 

____________ 

Before KELLY, WOLLMAN, and STRAS, Circuit Judges. 

____________

STRAS, Circuit Judge.

 

Jose Carrillo received a 190-month sentence after he pleaded guilty to two

drug counts, one for conspiracy and another for possession. Although he claims that 

the conspiracy charge violated double jeopardy and that his overall sentence is 

substantively unreasonable, we affirm.
-2-

I. 

Carrillo was involved in two drug deals spanning two states. The first one 

was in South Dakota, where Carrillo brokered a sale of about a kilogram of 

methamphetamine between a confidential informant and a drug supplier by the name 

of Erik Rodriguez-Venegas. The second one happened about a month later and 

involved Javier Romero Ochoa, whom Carrillo recruited to transport several 

kilograms of methamphetamine. Law enforcement found the drugs in Ochoa’s car 

during a traffic stop in Iowa.

These two transactions led to parallel proceedings, one in each state, both in 

federal district court. As relevant here, the government filed one conspiracy charge 

in South Dakota against Carrillo, Rodriguez-Venegas, and others. See 21 U.S.C. 

§§ 841(a)(1), 846. A little over two months later, the government added a conspiracy 

charge in Iowa—this time accusing Carrillo of plotting with Ochoa to sell drugs—

to an existing count of possession with intent to distribute methamphetamine. See 

18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. 

Carrillo tried to put the brakes on the Iowa prosecution—the one now before 

us on appeal—because he believed he was being prosecuted twice for the same 

conspiracy. His argument was that the Iowa indictment had to be dismissed on 

double-jeopardy grounds. See U.S. Const. amend. V. The district court1 disagreed, 

concluding that jeopardy had yet to attach in either case.

The double-jeopardy argument turned up once again after he decided to plead 

guilty in both cases. First came his guilty plea in Iowa, followed by a guilty plea in 

South Dakota, where he received a 51-month sentence. Then came another attempt 

to dismiss the conspiracy charge in Iowa. This time, the district court rejected the 

argument because, by pleading guilty, he had waived it. Critically, Carrillo never 

1

The Honorable John A. Jarvey, Chief Judge, United States District Court for 

the Southern District of Iowa.
-3-

raised his double-jeopardy concerns in South Dakota, despite trying twice in Iowa 

and failing each time. 

Sentencing in Iowa came last. Based on Carrillo’s military service, work 

record, and mental-health struggles, the district court varied downward and imposed 

a 190-month concurrent sentence on each count. 

II. 

The Fifth Amendment to the United States Constitution states that “[n]o 

person shall . . . be subject for the same offence to be twice put in jeopardy of life or 

limb.” U.S. Const. amend. V. More commonly referred to as the Double Jeopardy 

Clause, it “protects against a second prosecution for the same offense after 

acquittal . . . [,] against a second prosecution for the same offense after conviction[,] 

[a]nd . . . against multiple punishments for the same offense.” Brown v. Ohio, 432 

U.S. 161, 165 (1977) (emphasis added) (quotation marks omitted). 

Like any other constitutional right that is “personal” to the defendant, 

however, double jeopardy can be waived. United States v. Herzog, 644 F.2d 713, 

716 (8th Cir. 1981); see also Brady v. United States, 24 F.2d 399, 405 (8th Cir. 1928) 

(“The constitutional immunity from second jeopardy is a personal privilege which 

the accused may waive.”). One way is by pleading guilty to two facially distinct 

offenses, which operates as a concession that the defendant “has committed two 

separate crimes.” United States v. Broce, 488 U.S. 563, 569–70 (1989). So when 

he pleaded guilty, Carrillo waived his double-jeopardy objection “unless ‘the face 

of the record’ at the time the plea was entered show[ed] that the district court did not 

have the power to enter the second conviction or to impose sentence.” United States 

v. Pierre, 870 F.3d 845, 848 (8th Cir. 2017) (quoting Broce, 488 U.S. at 569).

The district court applied these principles and concluded, after closely 

reviewing the indictments and other evidence in the South Dakota and Iowa 

prosecutions, that Carrillo had waived any double-jeopardy violation by pleading 
-4-

guilty to each conspiracy charge. See United States v. Pierre, 795 F.3d 847, 849–50

(8th Cir. 2015). For that reason, the court denied Carrillo’s second motion to 

dismiss. 

 The district court reached the right conclusion, but it overlooked an important 

step.2

 As we have explained, the double-jeopardy analysis focuses on the record as 

it existed “at the time the plea was entered.” Pierre, 870 F.3d at 848. Recall that 

“at the time” Carrillo pleaded guilty in Iowa, id., he had not done so in South Dakota, 

meaning that jeopardy had not attached there. See United States v. Rea, 300 F.3d 

952, 957 (8th Cir. 2002) (suggesting that the earliest point that jeopardy might attach 

is when a court accepts a guilty plea). When he pleaded guilty in this case, in other 

words, he was not “twice put in jeopardy,” having not yet been placed in jeopardy a 

first time. U.S. Const. amend. V; see United v. Lewis, 844 F.3d 1007, 1010 (8th Cir. 

2017). Under this unusual scenario, Carrillo should have filed the motion to dismiss

in South Dakota, after he pleaded guilty in Iowa. See Willhauck v. Flanagan, 448 

U.S. 1323, 1325–26 (1980) (Brennan, J., in chambers) (explaining that “once 

jeopardy . . . attach[es] in one of” two simultaneous proceedings, the defendant can 

“make his claim before the second trial judge, at which time the courts can give due 

consideration to his” double-jeopardy argument (emphasis added)). For these 

reasons, the district court could not have erred when it refused to dismiss the Iowa 

conspiracy charge. 

III. 

Nor is Carrillo’s 190-month prison sentence substantively unreasonable. See 

United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (reviewing 

this type of challenge for an abuse of discretion). As we have explained, “it is nearly 

inconceivable” that once a district court has varied downward, it “abuse[s] its 

2

The reason may have been its mistaken assumption that Carrillo had first

pleaded guilty in South Dakota and then in Iowa, rather than the other way around. 
-5-

discretion in not varying downward [even] further.” United States v. McKanry, 628 

F.3d 1010, 1022 (8th Cir. 2011) (quotation marks omitted). 

This case is no exception. To be sure, as Carrillo argues, the court could have 

placed even more weight on three mitigating factors: his exemplary military service, 

mental-health struggles, and lack of criminal history. But “the mere fact that the 

court could have weighed the sentencing factors differently does not amount to an 

abuse of discretion.” United States v. Hall, 825 F.3d 373, 375 (8th Cir. 2016) (per 

curiam). 

IV. 

 

We accordingly affirm the judgment of the district court.

______________________________