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NOT FOR PUBLICATION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
USCA11 Case: 23-11999 Document: 46-1 Date Filed: 12/17/2025 Page: 2 of 23
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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23-11999 Opinion of the Court 3
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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23-11999 Opinion of the Court 5
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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23-11999 Opinion of the Court 7
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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8 Opinion of the Court 23-11999
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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23-11999 Opinion of the Court 9
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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23-11999 Opinion of the Court 11
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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23-11999 Opinion of the Court 13
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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23-11999 Opinion of the Court 15
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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23-11999 Opinion of the Court 17
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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18 Opinion of the Court 23-11999
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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23-11999 Opinion of the Court 19
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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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.