Opinion

United States v. Yulisey Herrera Gongora

Court
Court of Appeals for the Eleventh Circuit
Filed
Dec 17, 2025
Status
Unpublished
Nature of suit
NEW
Cited by
0 cases
Authority
More cited than 37.7%

discussing 18 U.S.C. § 3553(c)(2)

How later courts described this case

  • discussing 18 U.S.C. § 3553(c)(2)

Written by the judges who cited it.

The opinion

USCA11 Case: 23-11999 Document: 46-1 Date Filed: 12/17/2025 Page: 1 of 23

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11999

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YULISEY HERRERA GONGORA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cr-20257-JEM-2

____________________

Before ABUDU, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:

Yulisey Herrera Gongora appeals her 180-month prison

sentence after pleading guilty to possession with intent to

distribute cocaine base (“crack cocaine”), conspiracy to witness

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2 Opinion of the Court 23-11999

tamper, conspiracy to possess with intent to distribute crack

cocaine, and possession of a firearm by a convicted felon.

On appeal, Herrera argues that the district court imposed a

procedurally unreasonable sentence because the district court

failed to properly explain its reasons for imposing an upward

variance. Herrera also argues that her 180-month sentence is

substantively unreasonable because the district court overlooked

mitigating factors and created unwarranted disparities between

Herrera and her codefendants.

After careful review, we conclude that the district court

committed no reversible error and affirm Herrera’s sentence.

I. BACKGROUND

A. Charges and Plea

In 2022, Herrera and four codefendants were charged with

various drug-trafficking-related offenses. In a superseding

information, Herrera was charged with (1) possession with intent

to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(c) (“Count 1”); (2) conspiracy to obstruct justice, in

violation of 18 U.S.C § 1512(k) (“Count 2”); (3) conspiracy to

possess with intent to distribute crack cocaine, in violation of

18 U.S.C. § 846 (“Count 3”); and (4) possession of a firearm and

ammunition by a felon, in violation of 18 U.S.C. § 922(g)

(“Count 4”).

In a plea agreement, Herrera agreed to plead guilty to the

four counts in the superseding information and the government

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agreed to dismiss the superseding indictment. As part of the plea

agreement, the government agreed to recommend a “downward

variance” from the base offense level of 28 to a level of 18 “to

account for the disparity between powder and crack cocaine.”

At the change-of-plea hearing, Herrera pled guilty to the

four counts, and the district court accepted her guilty plea.

B. Factual Proffer

As part of the plea agreement, Herrera signed a factual

proffer recounting these facts, which she stipulated the

government could prove beyond a reasonable doubt.

From February to August 2022, Herrera conspired with

others to possess with intent to distribute 262.27 grams of crack

cocaine. Herrera cooked powder cocaine into crack cocaine and

served as a non-exclusive supplier to several street-level dealers.

Herrera and her coconspirators primarily sold crack cocaine from

a house in Miami, Florida, referred to as the “Trap House.”

Other coconspirators routinely carried firearms as part of their

drug trafficking, which Herrera knew.

On February 10, 2022, law enforcement searched the Trap

House and found crack cocaine in Herrera’s purse. On March 10,

2022, Herrera was present when law enforcement searched a

coconspirator’s car and seized two loaded firearms, crack cocaine,

and other contraband.

After the car search, Herrera knew that law enforcement

agents were investigating her and her coconspirators, and she

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4 Opinion of the Court 23-11999

tried to interfere with the investigation. For example, while in

prison, Herrera called a coconspirator’s relative and instructed the

relative on what to tell the police. Herrera also continued to

arrange drug sales from prison.

On June 30, 2022, law enforcement was conducting

surveillance of the home where Herrera lived with codefendant

Bryan Mendez. Law enforcement observed Herrera sell cocaine.

While arresting Herrera, law enforcement observed suspected

cocaine in plain view inside the house. Later that day, law

enforcement agents obtained a warrant and searched the house,

where they found more cocaine, as well as two firearms in the

dresser in the bedroom that Herrera and Mendez shared.

C. The Presentence Investigation Report (“PSI”)

1. Additional Offense Conduct Facts

A probation officer prepared a PSI, which included

additional details about Herrera’s drug trafficking. The PSI stated

that Herrera employed juveniles to sell drugs and otherwise assist

in her drug trafficking. Along with knowing that her

coconspirators carried firearms, Herrera arranged sales of several

firearms. The firearms found in Mendez’s house had been used in

two shootings near the Trap House in June 2022.

In sum, the PSI characterized Herrera as a “primary source

of [crack cocaine] to a violent street gang” who “supervised and

managed a distribution center . . . and employed street-level

distributors and juveniles, who sold her drugs and provide[d]

protection.”

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2. Herrera’s Criminal History

Herrera received three criminal history points for each of

these convictions: (1) a 2010 state conviction for robbery with a

firearm, (2) 2011 state convictions for burglary of an unoccupied

dwelling and petit theft, and (3) a 2014 federal conviction for

conspiracy to possess with intent to distribute marijuana. With

nine criminal history points, Herrera’s criminal history category

was IV.

Although these were the only convictions that resulted in

criminal history points, Herrera had several other run-ins with

law enforcement. In 2019, she was fined for driving with a

suspended license. Herrera also had several charges that were

dismissed nolle prosequi, including carrying a concealed firearm,

resisting an officer, possession of cocaine, petit theft, burglary,

grand theft, criminal mischief, and unlawfully discharging a

firearm. At the time of the PSI, she also had pending charges for

prostitution and driving with a suspended license.

3. Personal History and Characteristics

Herrera was born in Cuba and immigrated to the United

States when she was around two years old. Herrera’s parents

separated around the same time, and she resided primarily with

her mother. Her mother was diagnosed with schizophrenia and

bipolar disorder and was incarcerated when Herrera was 12

years old.

Herrera was taken in by a cousin who physically abused

her, and she ran away from home. Herrera lived “on the streets”

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6 Opinion of the Court 23-11999

on and off for the rest of her teenage years but also resided with

her stepfather at times.

Herrera was expelled from high school after 11th grade,

but at the time of the PSI was close to completing a general

education development (“GED”) program. She was employed on

and off throughout her adulthood, mostly in food service roles.

She had two children.

The PSI also noted that Herrera suffered from anxiety,

depression, and attention deficit disorder and had a history of

substance abuse.

4. Herrera’s Advisory Guidelines Range

After grouping the four counts together, the PSI assigned

Herrera a base offense level of 28, under U.S.S.G. § 2D1.1(a)(5),

(c)(6), because she was accountable for 262.27 grams of crack

cocaine. To the base offense level, the PSI added (1) a two-level

increase for possession of a dangerous weapon, under U.S.S.G.

§ 2D1.1(b)(1); (2) a two-level increase for maintaining a premises

to manufacture or distribute a controlled substance, under

U.S.S.G. § 2D1.1(b)(12); (3) a two-level increase for involving an

individual less than 18 years old, witness intimidation, and

obstructing justice, under U.S.S.G. § 2D1.1(b)(16)(B), (D), and (E);

and (4) a four-level role increase for being an organizer or leader.

Herrera also received a three-level reduction for acceptance

of responsibility, under U.S.S.G. § 3E1.1(a) and (b). This all

resulted in a total offense level of 35.

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With an offense level of 35 and a criminal history score of

IV, Herrera’s advisory guidelines range in the PSI was 235 to 293

months of imprisonment.

The PSI also noted that for Counts 1, 2, and 3, Herrera’s

statutory maximum sentence was 20 years of imprisonment,

under 21 U.S.C. § 841(b)(1)(C) and 18 U.S.C. § 1512(c). For

Count 4, her statutory maximum sentence was 10 years of

imprisonment, under 18 U.S.C. § 924(a)(2).

5. Herrera’s Objections to the PSI

Herrera made several factual objections to the PSI.

Herrera contended that she was merely a street-level dealer who

supplied other street-level dealers and did not “employ” or

control the other sellers.

Herrera also made two objections to the advisory

guidelines calculation. First, Herrera asserted that her base

offense level should be 18, rather than 28, to account for the

disparity between crack and powder cocaine. The Fair

Sentencing Act of 2010 greatly reduced the 100-to-1 sentencing

disparity between crack and powder cocaine to 18-to-1. See Dorsey

v. United States, 567 U.S. 260, 269-70 (2012).

At 18-to-1, Herrera’s advisory guideline base offense level

for 262.27 grams of crack cocaine was 18. The ratio has never

been 1-to-1, which would yield a base offense level of 18 as

Herrera requested. So Herrera was essentially requesting a

substantial “downward variance” in the base offense level to 18.

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Second, Herrera argued that she should receive only a

two-level, not a four-level, role enhancement. She noted that the

government agreed with the lower base offense level and the

lower role enhancement. She did not object to any of the other

guidelines calculations.

With Herrera’s proposed lower base offense level of 18, she

would still receive (1) a two-level increase for possession of a

dangerous weapon; (2) a two-level increase for maintaining a

premises to manufacture or distribute a controlled substance; (3) a

two-level increase for involving an individual less than 18 years

old, witness intimidation, and obstructing justice; and (4) a

three-level reduction for acceptance of responsibility. This would

yield a base offense level of 21. Under Herrera’s proposed

calculations, she would also receive a two-level, rather than

four-level, role increase. In all, this would result in a total offense

level of 23.

With a total offense level of 23 and a criminal history score

of IV, Herrera’s advisory guidelines range would be 70 to 87

months of imprisonment.

The government filed a response in which it (1) argued that

Herrera’s factual objections as to her offense conduct were

meritless and (2) did not address her guidelines arguments.

The probation officer filed an addendum to the PSI in

which it defended the facts and advisory guidelines range

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calculation of 235 to 293 in the original PSI. 1 The probation

officer acknowledged the government’s position that Herrera

should receive a “downward variance” on the drug calculation so

that her base offense level was reduced from 28 to 18.

Nonetheless, the probation officer stood by the correct number of

28 in the PSI. Yet the probation officer noted that the district

court could consider the disparate treatment of crack and powder

cocaine as a reason to vary downward from a correctly calculated

range of 235 to 293 months, citing Supreme Court precedent.

The probation officer also acknowledged the government’s

position that Herrera should receive only a two-level role increase

but again maintained that the four-level role increase in the PSI

was correct, referencing specific facts about Herrera’s offense

conduct.

D. The Sentencing Hearing

At the May 2023 sentencing hearing, the district court

asked what objections remained outstanding and stated that any

other objections would be deemed waived. Herrera restated her

argument that her advisory guidelines range should be 70 to 87

months of imprisonment, based on (1) a base offense level of 18 to

account for the disparity between crack and powder cocaine and

1 The probation officer adopted additional information about Herrera’s

employment history but otherwise did not change the facts in the PSI based

on Herrera’s objections.

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10 Opinion of the Court 23-11999

(2) a two-level, rather than four-level, role increase.2 She did not

address any other objections.

The government responded that the advisory guidelines

range in the PSI—235 to 293 months—was “absolutely correct

under the current version of the United States Sentencing

Guidelines and the current version of law.” Nonetheless, the

government asked the district court to vary downward as to the

base offense level for the drugs from 28 to 18 and adopt a lower

advisory guidelines range of 70 to 87 months of imprisonment.

The district court quipped, “You didn’t also agree to

invitation to lunch at the White House and a letter of apology

too, did you?” Still, the district court accepted the lower advisory

guidelines range of 70 to 87 months, stating that it “[s]eems to be

the trend.”

The district court then asked both sides for their sentencing

recommendation. The government recommended a sentence of

180 months of imprisonment for several reasons.

2 During the sentencing hearing, defense counsel stated that the role

enhancement issue had been “resolved” and the probation officer was “in

agreement.” This is contrary to the addendum to the PSI, in which the

probation officer maintained that a four-level increase was appropriate.

If Herrera had received a two-level, not four-level, role increase but kept the

higher, crack-cocaine base offense level, her total offense level would be 33

and her advisory guidelines range would be 188 to 235 months of

imprisonment. See U.S.S.G. Ch. 5, Pt. A.

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First, the government argued that the nature and

circumstances of the offense justified a higher sentence because

Herrera was “a high-level drug dealer, not an average street

dealer,” who was using children in her drug trafficking and

“training a new generation of violent drug offenders.”

Second, the government contended that a higher sentence

was necessary for deterrence and promoting respect for the law.

The government noted that Herrera was arrested several times

and was not deterred from her criminal behavior. To the

contrary, she continued arranging drug deals by phone while

in prison.

Third and relatedly, the government argued that her

criminal history was “woefully understated.” The government

noted that Herrera had a prior federal drug trafficking conviction

and a prior crime of violence. The government contended that if

not for a recent decision by this Court, she would be deemed a

career offender. 3 Because of the change of law, the government

3 In January 2023, a few months before Herrera’s sentencing, this Court

overturned its prior precedent and held that inchoate drug trafficking crimes,

like conspiracy to distribute, are not controlled substance offenses for the

purposes of the career offender enhancement. See United States v. Dupree, 57

F.4th 1269, 1279 (11th Cir. 2023) (en banc).

Later that year, the Sentencing Commission changed the guidelines so that

inchoate crimes qualify. See U.S.S.G. App. C, amend. 822 (Nov. 2023);

U.S.S.G. § 4B1.2(d).

So if Herrera were sentenced a few months earlier or later, she likely would

have been deemed a career offender with an offense level of 32 and a

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12 Opinion of the Court 23-11999

contended, she received “a considerable break . . . in [her]

guidelines calculation.” The government also asserted that six

months before the offense conduct, Herrera conspired to smuggle

drugs and other contraband into a federal prison.

Finally, the government argued that Herrera was more

culpable than her codefendants and so a higher sentence was

necessary to avoid unwarranted disparities.

Herrera asked for a sentence of 87 months, the high end of

her recalculated advisory guidelines range that used a base offense

level of 18. Herrera emphasized her remorse and cooperation

with the government’s investigation. Herrera also argued that,

although her conduct was serious, she was not a “higher-level

trafficker . . . living large off the profits of other people,” but was

just “trying to make ends meet for her and her children.” She also

discussed her unstable childhood and how those circumstances

led her to a life of drugs and crime. Lastly, she noted her work

history, pursuit of a GED, and potential to “break out of this

cycle” once released from prison.

The government responded that, although Herrera

provided some cooperation, she also withheld “significant

amounts of material information,” warned her coconspirators

about the ongoing investigation, and continued to manage her

drug operation from prison.

criminal history score of VI, resulting in an advisory guidelines range of 210

to 262 months. See U.S.S.G. § 4B1.1(a), (b); Ch. 5, Pt. A.

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The government also brought up that Herrera’s son was

involved in her drug trafficking. The government asserted that

there was an incident where Herrera’s son pointed a gun at

another child. Herrera said that her son had pointed only “a BB

gun.” The district court stated, “Well, that’s the least of my

concerns.”

In her allocution, Herrera stated that she was sorry for her

actions and asked for mercy. The district court then imposed its

sentence, stating:

The Court has considered the statements of all

parties, the presentence report which contains the

advisory guidelines, and the statutory factors as set

forth in 18 U.S.C. § 3553(a). A sentence will be

imposed above the advisory guideline range, as this

will be necessary to provide sufficient punishment

and deterrence. . . .

It is the judgment of the Court that the defendant,

Yulisey Herrera Gongora, is committed to the

Bureau of Prisons to be imprisoned for 180 months.

This term consists of 180 months as to each of

Counts 1, 2 and 3 and 120 months as to Count 4 all

to be served concurrently.

The district court did not give any further explanation for the

imprisonment sentence imposed. The court asked if Herrera had

any objections, and defense counsel stated only, “We object to

the procedural and substantive reasonableness of the sentence.”

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14 Opinion of the Court 23-11999

Counsel, however, did not specifically object that the court failed

to adequately explain the sentence.

On the written Statement of Reasons form, the district

court checked the boxes to indicate that it imposed an upward

variance from the advisory guidelines range, and its reasons for

the variance were “[t]o reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for

the offense” and “[t]o avoid unwarranted sentencing disparities

among defendants.” The district court did not provide any

additional explanation on the written form.

E. Herrera’s Codefendants

Three of Herrera’s codefendants have been sentenced. At

Mendez’s sentencing hearing, the government stated that, of all

the defendants in this case, Mendez had “shown the greatest

remorse and ha[d] shown the greatest efforts to want to

rehabilitate himself.” The district court sentenced him to 102

months of imprisonment.

Codefendant Miguel Rodriguez was one of the gang’s

“street-level” distributors and was “involved in shootings and

running over a quadriplegic in a wheelchair with his car.” The

government argued that Rodriguez deserved a sentence between

Herrera and Mendez because Herrera was the leader and

organizer, and Mendez committed no violence. The district court

sentenced him to 120 months of imprisonment.

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Codefendant Jose Rivera was held responsible for more

than 550 grams of cocaine. He had a criminal history score of VI.

He was sentenced to 144 months of imprisonment.

II. DISCUSSION

In reviewing a sentence for reasonableness, we use a

two-step process. United States v. Trailer, 827 F.3d 933, 935-36

(11th Cir. 2016). First, we ensure the district court committed no

significant procedural error, which includes “failing to adequately

explain the chosen sentence.” Id. at 936. Second, we examine

whether the sentence is substantively reasonable in light of the

totality of the circumstances and the sentencing factors in 18

U.S.C. § 3553(a). Id. Herrera argues on appeal that her

180-month sentence was both procedurally and substantively

unreasonable.

A. Procedural Reasonableness — § 3553(c)(2)

Herrera claims the district court’s reasons for its upward

variance were insufficient under 18 U.S.C. § 3553(c)(2) making her

sentence procedurally unreasonable. 4

The district court always must “state in open court the

reasons for its imposition of the particular sentence.” 18 U.S.C.

4 The parties appear to agree, and thus we assume arguendo, that the

pertinent advisory guideline range is the 70-to-87-month range that resulted

from the parties’ agreed-upon change to Herrera’s base offense level and the

lower role increase. But this range was reached based upon the

government’s agreeing to calculate the base offense level as 18 using a 1-to-1

crack to powder cocaine ratio.

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16 Opinion of the Court 23-11999

§ 3553(c). “If the district court imposes a sentence outside the

guidelines range, then the district court must state orally during

the sentencing hearing ‘the specific reason for the imposition of a

sentence different from’ the guidelines range.” United States v.

Steiger, 99 F.4th 1316, 1321 (11th Cir. 2024) (en banc) (quoting 18

U.S.C. § 3553(c)(2)) (emphasis added). The district court must

also state those reasons “with specificity in a statement of reasons

form.” 18 U.S.C. § 3553(c)(2).

The purpose of requiring the district court to explain

adequately its chosen sentence is “to allow for meaningful

appellate review.” Steiger, 99 F.4th at 1321 (quoting Gall v. United

States, 552 U.S. 38, 50 (2007)). “A sentence is procedurally

unreasonable if the district court fails to adequately explain the

sentence, including any variance from the guidelines range.”

United States v. Oudomsine, 57 F.4th 1262, 1265 (11th Cir. 2023)

(discussing 18 U.S.C. § 3553(c)(2)).

To preserve a challenge to the procedural reasonableness

of a sentence, a defendant must clearly state the grounds on

which the objection is made in the district court, or she waives

the objection. United States v. Carpenter, 803 F.3d 1224, 1237 (11th

Cir. 2015). “A sweeping, general objection is insufficient to

preserve specific sentencing issues for review.” Id. at 1238.

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When a defendant fails to object to a § 3553(c)(2) error, this

Court reviews the unpreserved claim only for plain error.5 See

Steiger, 99 F.4th at 1322.

Our decision in Steiger as to § 3553(c)(2) is instructive. In

Steiger, the district court imposed an upward-variance sentence

after stating the factors it had considered but without explicitly

explaining why it imposed the sentence it did. Steiger, 99 F4th at

1320-21. The district court also failed to file a written statement

of reasons. Id. at 1325. But the defendant did not object to his

sentence on this § 3553(c)(2) ground in the district court. See id. at

1319.

The en banc Court reviewed Steiger’s unobjected-to

§ 3553(c)(2) challenge for plain error and held that he failed to

establish the third element—that the district court’s error affected

his substantial rights. Id. at 1322, 1325-27. The Court explained

that “a Section 3553(c) error does not affect a defendant’s

substantial rights if the record is clear enough to allow meaningful

appellate review of the sentence.” Id. at 1325. Accordingly, “a

Section 3553(c) error warrants reversal under plain error review

5 The plain-error standard requires the defendant to show: (1) an error

occurred; (2) the error was plain; and (3) the error affected her substantial

rights. See Steiger, 99 F.4th at 1324. If the defendant makes this showing, we

have discretion to correct the error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id. This Court

does not reverse based on errors that are harmless or that do not affect the

outcome of the proceeding. See Fed. R. Crim. P. 52(a), (b); Steiger, 99 F.4th at

1322.

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only when the district court’s reasoning is unclear on the face of

the record.” Id. In Steiger’s case, because “[a] reasonable person

familiar with the sentencing record would understand” the

reasons for the above-guidelines sentence, the defendant could

not establish plain error. Id. at 1326-27.

Herrera argues that the district court procedurally erred

because it violated 18 U.S.C. § 3553(c)(2) by failing to provide in

open court, and in a separately filed statement of reasons, the

specific justifications for her above-advisory-guidelines sentence.

She raises no other procedural error as to her sentence.

Because Herrera made no specific objection to the district

court’s explanation of her sentence, her procedural

reasonableness challenge based on § 3553(c)(2) is not preserved.

Carpenter, 803 F.3d at 1238. Simply stating that she objected to

“procedural reasonableness” after the sentence was pronounced

was insufficient to preserve her current objection to the adequacy

of the court’s explanation for its chosen sentence. See id. Because

Herrera’s § 3553(c)(2) argument is unpreserved, we review it for

plain error. See Steiger, 99 F.4th at 1322-24.

As in Steiger, Herrera correctly identified that the district

court violated § 3553(c)(2). See id. at 1324-25. The stated

reasoning offered by the court—that it had “considered the

statements of all parties, the presentence report which contains

the advisory guidelines, and the statutory factors as set forth in 18

U.S.C. Section 3553(a)” and that the punishment was “necessary

to provide sufficient punishment and deterrence”—does not

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satisfy the requirement under § 3553(c)(2) that the district court

provide “the specific reason[s]” for imposing a sentence above the

guidelines range. 18 U.S.C. § 3553(c)(2) (emphasis added).

Even so, Herrera cannot show that the court’s error

affected her substantial rights because the court’s reasoning for its

above-advisory-guidelines sentence is clear on the face of the

record. See Steiger, 99 F.4th at 1325. The government provided

several reasons why an above-advisory-guidelines sentence was

appropriate under the § 3553(a) factors, 6 including that (1)

Herrera was a leader of a group of violent drug dealers, (2)

Herrera involved juveniles in her offense, (3) Herrera was

undeterred by her previous arrests, (4) she continued to arrange

drug deals from prison, (5) her guidelines range understated the

seriousness of her criminal history, (6) she was more culpable

than her codefendants, and (7) although she did show remorse

and cooperate somewhat, she also negatively interfered with the

investigation by omitting material information and warning

coconspirators.

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

and the history and characteristics of the defendant; (2) the need for the sentence

to reflect the seriousness of the offense, promote respect for the law, and

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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20 Opinion of the Court 23-11999

It is clear from the face of the record that the district court

varied upward from the advisory guidelines range for these

reasons, even though it did not explicitly say so at sentencing or in

a written statement of reasons. Herrera thus cannot establish

plain error, and “[a] remand in this circumstance would be a

wasteful formality for the district court to state on the record

what everyone already knows.” See id. at 1327.

B. Substantive Reasonableness

Herrera also challenges the substantive reasonableness of

her 180-month sentence. We review the substantive

reasonableness of a sentence for an abuse of discretion in light of

the § 3553(a) factors and the totality of the circumstances.

Oudomsine, 57 F.4th at 1266. The party challenging the sentence,

here Herrera, bears the burden of establishing that it is

unreasonable. United States v. Rosales-Bruno, 789 F.3d 1249, 1256

(11th Cir. 2015).

“A district court abuses its discretion” and imposes a

substantively unreasonable sentence “when it (1) fails to afford

consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or

(3) commits a clear error of judgment in considering the proper

factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)

(en banc) (citing United States v. Campa, 459 F.3d 1121, 1174 (11th

Cir. 2006) (en banc)).

“To arrive at an appropriate sentence, the district court

must consider all of the applicable § 3553(a) factors. Rosales-Bruno,

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23-11999 Opinion of the Court 21

789 F.3d at 1254 (citing United States v. Shaw, 560 F.3d 1230, 1237

(11th Cir. 2009)). “That does not mean, however, that it must

give all of the § 3553(a) factors equal weight.” Id. The district

court may attach great weight to one § 3553(a) factor over others,

and the weight it assigns to any particular factor is within its

sound discretion. Id.

The district court has wide discretion to impose an upward

variance based on the § 3553(a) factors. United States v. Butler, 39

F.4th 1349, 1355 (11th Cir. 2022). If the district court determines

that an upward variance is warranted, it “must consider the extent

of the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance.” Gall, 552 U.S.

at 50. While we may consider the extent of the variance, we do

not require extraordinary circumstances to justify a sentence

outside the advisory guidelines range or presume that such a

sentence is unreasonable. Id. at 47; Irey, 612 F.3d at 1186-87.

Ultimately, we will vacate a defendant’s sentence as

substantively unreasonable 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 (quotation

marks omitted).

Here, Herrera argues that her sentence was substantively

unreasonable because the district court failed to give adequate

weight to mitigating factors and created unwarranted sentencing

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22 Opinion of the Court 23-11999

disparities between her and her codefendants. Herrera

emphasizes that her codefendant Rivera was responsible for a

higher drug quantity and had a more violent criminal history but

received a lower sentence.

After thorough review, we concluded that Herrera has not

shown that the district court abused its discretion by sentencing

Herrera to 180 months of imprisonment. See id. at 1189.

Herrera’s offense conduct was very serious because she was a

leader of a group of violent drug dealers and involved juveniles in

her offense. The need to provide deterrence also weighed in

favor of a high sentence because Herrera was undeterred by her

previous arrests and even continued to arrange drug deals

from prison.

Herrera contends that the district court gave insufficient

weight to mitigating circumstances, namely her unstable

upbringing, and created unwarranted disparities between her and

her codefendants, who all received lower sentences despite some

of them having more violent offense conduct and criminal

histories.

While Herrera received a higher sentence than her

codefendants, that reflects that she was a leader or organizer and

therefore more culpable. The district court did not abuse its

discretion by deciding to give more weight to this factor than her

codefendants’ criminal histories. See Rosales-Bruno, 789 F.3d

at 1254.

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23-11999 Opinion of the Court 23

Additionally, Herrera’s 180-month sentence was well

below the 20-year statutory maximum for her offenses, which is

another indication that it is reasonable. 7 See United States v.

Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). Under the

circumstances, we cannot say the district court’s decision to

impose a 180-month sentence was an abuse of discretion. See Irey,

612 F.3d at 1190.

III. CONCLUSION

For the above reasons, we affirm Herrera’s 180-month

prison sentence.

AFFIRMED.

7 It is also worth noting that Herrera’s sentence was below the advisory

guidelines range that she would have received if she had not received the

large powder-cocaine variance that was agreed to by the government but not

provided for in the advisory guidelines. See supra note 2.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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