United States v. Jose Ivan Carbajal

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13735

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE IVAN CARBAJAL,

a.k.a. Primo,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 5:23-cr-00056-JA-PRL-4

____________________

Before ROSENBAUM, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:

Jose Carbajal pleaded guilty without a plea agreement to

conspiracy to traffic drugs and conspiracy to launder money. He

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2 Opinion of the Court 24-13735

was sentenced to 480 months’ imprisonment. He appeals his sen-

tence, arguing that the Court erred by considering testimony and

exhibits from his coconspirators’ trial and sentences of unrelated

defendants at his sentencing. We affirm.

I.

From January 2017 to July 2023, Carbajal was part of a drug-

trafficking organization (DTO) that trafficked thousands of kilo-

grams of methamphetamine and fentanyl and laundered millions

of dollars in drug proceeds. The DTO operated out of Florida, with

drug suppliers and distributors located across the United States.

Dudzinski Poole led the DTO, Carbajal was a supplier in Califor-

nia, and Diego Navarro-Martinez was one of Carbajal’s associates.

As a supplier, Carbajal organized meetings with couriers,

who would fly to California from Florida with thousands of dollars

in cash 1 to buy drugs and fly them back. He and his associates also

mailed at least 393 packages of drugs—multiple pounds each—to

addresses that Poole provided, often vacant lots or residences of

other coconspirators. 2 Once the drugs reached Florida, they were

distributed to lower-level coconspirators or buyers throughout

Florida and other states.

1 Poole would also pay Carbajal via electronic methods, usually in small

amounts through coconspirators to conceal the nature of the transactions.

2 The Government also argued at sentencing that testimony established Car-

bajal was responsible for the DTO’s “ghost bags” practice: bags of drugs would

be checked onto a flight from California to Florida unaccompanied by a pas-

senger and would be picked up when the flight landed.

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Drug Enforcement Agents eventually executed a search

warrant at one of the DTO’s stash houses. Inside, officers found a

vacuum-sealer, digital scales, a hydraulic drug press, baggies, ap-

proximately 833 grams of fentanyl, and approximately 183 grams

of methamphetamine. They also found a loaded Taurus handgun,

a WASR-10 rifle with a 30-round capacity magazine, a Glock .45

caliber magazine, and multiple rounds of ammunition.

The DTO laundered its money using several methods: trans-

ferring its proceeds between the bank accounts of various cocon-

spirators in small amounts and in rapid succession; using the pro-

ceeds to buy various assets, such as vehicles and jewelry; and fun-

neling the proceeds through Poole’s event promotion company.

Seventeen defendants were indicted on various crimes re-

lated to the DTO. Carbajal was indicted on Count 5 for conspiracy

to traffic drugs, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and

846, and on Count 6 for conspiracy to launder money, in violation

of 18 U.S.C. § 1956(h). On the eve of trial, he pleaded guilty to both

counts without a plea agreement. Two coconspirators were con-

victed at trial on their counts, one died, and the rest pleaded guilty.

After Carbajal was convicted, the probation office filed a

presentence investigation report (PSR). It stated that the converted

drug weight that Carbajal was responsible for was 164,183,177 kil-

ograms, that multiple firearms were possessed in furtherance of the

conspiracy, that Carbajal’s involvement in the DTO was “crucial”

and “extensive,” and that Navarro-Martinez was Carbajal’s “en-

forcer and right hand man.”

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4 Opinion of the Court 24-13735

The PSR calculated Carbajal’s base offense level at 38, and it

added a two-level enhancement for money laundering, a two-level

enhancement for possessing a firearm, 3 and a four-level enhance-

ment for being an organizer or leader of an extensive criminal ac-

tivity. 4 It also provided a two-level deduction for acceptance of re-

sponsibility. While those figures add up to 44, Carbajal’s total of-

fense level was 43, the maximum offense level contemplated by the

Guidelines. See U.S.S.G. Ch. 5, Pt. A, Comment. 2. Carbajal’s crim-

inal history category was IV, and his Guidelines’ imprisonment

range was life.

Carbajal objected to the PSR’s statement characterizing Na-

varro-Martinez as his enforcer and to its addition of the firearm and

leadership enhancements. The probation office responded that the

statement about Navarro-Martinez was correct and that the en-

hancements were warranted.

Carbajal filed a sentencing memorandum discussing the sen-

tencing factors, arguing for a downward variance, and expanding

on his objection to the leadership enhancement. The Government

3 “If a dangerous weapon (including a firearm) was possessed, increase [the

defendant’s offense level] by 2 levels.” U.S.S.G. § 2D1.1(b)(1).

4 “If the defendant was an organizer or leader of a criminal activity that in-

volved five or more participants or was otherwise extensive, increase [his of-

fense level] by 4 levels.” U.S.S.G. § 3B1.1. “To qualify for an adjustment under

this section, the defendant must have been the organizer [or] leader . . . of one

or more participants.” U.S.S.G. § 3B1.1 Comment. 2.

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24-13735 Opinion of the Court 5

filed a sentencing memorandum that referenced testimony and ex-

hibits from the coconspirators’ trial when describing Carbajal’s role

in the DTO. 5

At his sentencing, Carbajal repeated the three objections he

made to the PSR. He began with his objection to the characteriza-

tion of Navarro-Martinez as his enforcer, maintaining that Na-

varro-Martinez was just a good friend. The Court responded that

there was testimony from the coconspirators’ trial that Navarro-

Martinez was called “Shooter” or “Killer.” And the Government

added that Poole had testified at the trial that Navarro-Martinez

was Carbajal’s “muscle” and that Carbajal planned to use Navarro-

Martinez to help murder another coconspirator. 6 In response, Car-

bajal stated he did not have the opportunity to cross-examine Poole

at the trial. The Court agreed Carbajal did not have a chance to

cross-examine but determined there was enough evidence in the

record to overrule the objection and, thus, overruled it.

Carbajal repeated his objection to the firearm enhancement.

He stated that “[i]t was not reasonably foreseeable” to him that oth-

ers in the DTO possessed firearms, but he acknowledged that the

5 The Government filed one sentencing memorandum for all sixteen defend-

ants, with specific sections dedicated to each individual.

6 The Government also stated that another person’s testimony implied that

Navarro-Martinez answered to Carbajal and helped Carbajal maintain the

drugs and the DTO.

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6 Opinion of the Court 24-13735

caselaw was not on his side. 7 The Court overruled the objection,

citing the facts of the case as presented at trial and our Court’s prec-

edent on the issue.

Finally, Carbajal repeated his objection to the leadership en-

hancement, stating that there was no evidence that he “was in-

volved in directing or coordinating anything other than . . . ship-

ments of narcotics”; that he did not exercise significant control or

decision-making authority over the DTO’s activities; and that, de-

spite the Court’s ruling on his previous objection, he did not exer-

cise control over Navarro-Martinez. He also noted that it was

Poole’s DTO and that he was only one of “several sources” in Cal-

ifornia.

In response, the Government stated that the DTO’s practice

of shipping drugs in the mail “was not at Mr. Poole’s direction,”

but was instead “developed” by Carbajal. It acknowledged that

Poole was the “top level” leader of the DTO but maintained that

7 Our Circuit has held that a firearm enhancement based on a coconspirator’s

gun possession applies if “the [G]overnment . . . show[s] by a preponderance

of the evidence that (1) the possessor of the firearm was a co-conspirator, (2)

the possession was in furtherance of the conspiracy, (3) the defendant was a

member of the conspiracy at the time of the possession, and (4) the co-con-

spirator possession was reasonably foreseeable by the defendant.” United States

v. Westry, 524 F.3d 1198, 1221 (11th Cir. 2008) (internal quotation marks omit-

ted). We have also held that “guns are a tool of the drug trade,” so it is “rea-

sonably foreseeable that a co-conspirator would possess a firearm where the

conspiracy involved trafficking in lucrative and illegal drugs.” United States v.

Pham, 463 F.3d 1239, 1246 (11th Cir. 2006).

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24-13735 Opinion of the Court 7

“without Jose Carbajal, there is no Dudzinski Poole. There is no

Poole organization.”

After an extended conversation with the parties, the Court,

stating that it had reviewed the different leadership factors, over-

ruled the objection to the leadership enhancement. It stated that

“the two primary people in this operation were Mr. Poole and Mr.

Carbajal” and that they were the ones who “put all this in motion.”

Though Carbajal’s decision-making authority may not have been

“quite as great as Mr. Poole’s,” it was “significant. He was the sup-

plier. It was basically a two-person operation.” 8

The Court adopted the Guidelines calculations in the PSR,

which provided a total offense level of 43, a criminal history cate-

gory of IV, and a Guidelines sentence of life imprisonment. The

Court also stated that it had read the many letters filed with the

Court on Carbajal’s behalf and turned to the parties for their sen-

tence requests.

Carbajal’s attorney explained that much of Carbajal’s crimi-

nal history “has to do with” his addictions to drugs and alcohol. He

mentioned that Carbajal “grew up on the streets” with a single

mother after his father passed away, that he witnessed a murder

8 Additionally, the Government objected to the two-point reduction in the

Guidelines calculation for acceptance of responsibility as Carbajal did not

plead guilty until after the Government turned over its list of cooperators, but

it stated that “it’s a technical objection that doesn’t substantively make a dif-

ference” as it doesn’t change the Guidelines calculation. The Court overruled

the objection.

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8 Opinion of the Court 24-13735

and violence when he was young, and that he fell in with a bad

crowd that ultimately led him down this path. He also stated that

Carbajal was using alcohol and drugs throughout most of his par-

ticipation in the DTO, that he had untreated mental health issues,

that he showed remorse and accepted responsibility, and that he

was a good father and wanted to give his family a better life. He

stated that a life sentence was not necessary and asked for a sen-

tence “somewhere in the mid-teens.”

In response, the Government argued that Carbajal’s sen-

tence “should be very, very significant.” It stated that he accepted

responsibility at “basically, the last second” and noted that his

crime involved “thousands of pounds of probably the two most sig-

nificant drugs in our world.” It maintained that the DTO would

not have existed without Carbajal, and it explained that, for Carba-

jal to transport the amount of drugs that he did, he must have been

“somebody extremely close to the very top-of-the-line drug distrib-

utors coming from Mexico.” Ultimately, “there was very, very little

mitigation at all in terms of the significance of who [Carbajal] was

as a drug dealer,” and no mitigation was warranted for accepting

responsibility because he did it “on the eve of trial.”

The Government then told the Court that two unrelated de-

fendants convicted for a different drug trafficking conspiracy were

sentenced to 38 and 35 years’ imprisonment and that “neither one

. . . compare[d]” to Carbajal. It acknowledged that Carbajal had a

hard life growing up, but stated that while those circumstances

may be mitigating in some cases, they were not mitigating here as

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24-13735 Opinion of the Court 9

Carbajal was a grown man, made millions of dollars off the con-

spiracy, held a significant position in the DTO, had years to stop

his conduct, and did not plead guilty until the last minute. The

Government also characterized the “hit” that Carbajal put out on

his coconspirator as an aggravating factor. It ultimately asked the

Court for a “significant, significant sentence”—“life or . . . some-

thing akin to it.” The Court asked for the criminal history catego-

ries of the unrelated defendants, and the Government stated that

the one who received the 38-year sentence had a category of VI.

The Court sentenced Carbajal to concurrent terms of 480

months’ imprisonment for Count 5 and 240 months for Count 6,

followed by concurrent terms of five years’ supervised release for

Count 5 and three years for Count 6. The Court then explained its

ruling, stating that Carbajal had a history of drug offenses, with at

least one involving a firearm, and that the substances in the instant

offense “were deadly” and in “amounts . . . greater than [the Judge

had] ever seen.” It added that “[t]here’s no way that this offense

could be described as anything but vast and extraordinary.” The

Court stated that it considered all the evidence presented at sen-

tencing and the facts in the PSR, the nature and quantity of the sub-

stances involved, the presence of firearms, Carbajal’s historic sub-

stance abuse, his family situation, and his family support. It also

noted that it “had some experience in the case, having dealt with

other defendants and having sat through a lengthy trial involving

two other defendants,” and it explained that it would have imposed

the same sentence regardless of its ruling on the leadership en-

hancement The Court then asked if there were any objections to

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10 Opinion of the Court 24-13735

the sentence or the manner in which it was pronounced. Carbajal

made no objections.

Carbajal timely appeals, arguing that the Court erred in con-

sidering the testimony and exhibits from his coconspirators’ trial

and the sentences of unrelated defendants as it did not provide

prior notice that it would engage in such consideration.

II.

We review de novo constitutional challenges to a defend-

ant’s sentence. United States v. Bowers, 811 F.3d 412, 430 (11th Cir.

2016). However, when a defendant fails to object before the district

court to an alleged constitutional error, we review for plain error.

See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005).

“To establish plain error, a defendant must show: (1) an er-

ror; (2) that was obvious; (3) that affected the defendant’s substan-

tial rights; and (4) that seriously affected the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Dudley, 5

F.4th 1249, 1255 (11th Cir. 2021). An error is obvious if “the explicit

language of a statute[,] rule,” or binding court precedent directly

resolves it. United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir.

2019).

On appeal, Carbajal argues that the Court improperly con-

sidered testimony and exhibits from his coconspirators’ trial at his

sentencing both because the Court did not provide notice that it

would consider the evidence and because he did not have the abil-

ity to cross-examine at the trial. He also argues that the Court erred

by considering the sentences of unrelated defendants because he

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did not have notice that the information would be used and did not

have the opportunity to rebut it. While Carbajal did clearly object

to the use of the testimony, he did not object to the use of the ex-

hibits or the use of the sentences.9 He also did not object to notice.

We therefore review de novo the Court’s use of the trial testimony,

and we review all other issues for plain error. We begin by discuss-

ing the issues stemming from the trial evidence; we then discuss

the issues with the unrelated defendants’ sentences.

A.

We begin with Carbajal’s argument that the Court erred by

not providing notice that it would consider the testimony and ex-

hibits from the coconspirators’ trial, making the subsequent oppor-

tunity to respond meaningless.

“[S]entencing procedures are not required to be as exacting

as those at trial,” but “due process requires that a criminal defend-

ant have adequate notice of, and an opportunity to contest, the

facts used to support his criminal penalty.” United States v. Plasencia,

886 F.3d 1336, 1343 (11th Cir. 2018).

Though the Court did not explicitly inform Carbajal that it

would consider testimony and exhibits from the coconspirators’

9 Though the exhibits, of course, were part of the same trial that the testimony

came from, we cannot read his specific objection to the testimony to also be

an objection to the exhibits. See United States v. Brown, 934 F.3d 1278, 1306

(11th Cir. 2019) (“[T]o preserve an objection . . . , a party must raise th[e] point

in such clear and simple language that the trial court may not misunderstand

it.” (internal quotation marks omitted)).

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12 Opinion of the Court 24-13735

trial at his sentencing, the Government filed a sentencing memo-

randum that referenced the testimony and exhibits. This alerted

Carbajal that the evidence would come up at sentencing and, as

such, that the Court might consider it. Indeed, we have held that a

defendant received adequate notice that the Court would rely on

trial testimony at his sentencing where the Government’s opening

statement referenced the testimony and the defendant was present

during the testimony. Plasencia, 886 F.3d at 1343–45. The fact that

the evidence at issue here was not from the defendant’s own trial

is of no consequence. The Government mentioned the trial evi-

dence in its sentencing memorandum, and Carbajal was familiar

with the evidence referenced.10 He therefore received adequate no-

tice that the Court would rely on that evidence. There was no er-

ror. Carbajal’s argument fails under the first prong of plain error

review. We need not consider the other prongs.

B.

We now turn to Carbajal’s argument that, regardless of no-

tice, the Court erred by considering the testimony and trial exhibits

from his coconspirators’ trial. He maintains that he did not have

10 Carbajal confirmed familiarity with the record multiple times during the

sentencing hearing and, regardless, makes no argument that he did not have

access to the referenced evidence. He therefore waives any argument on that

front. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A]

party seeking to raise a claim or issue on appeal must plainly so indicate . . . .

At the very least, he must devote a discrete, substantial portion of his argu-

mentation to that issue. Otherwise, the issue . . . will be considered aban-

doned.”).

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24-13735 Opinion of the Court 13

the chance to cross-examine at trial, so consideration of the evi-

dence violated his due process rights.

As stated above, “due process requires that a criminal de-

fendant have adequate notice of, and an opportunity to contest, the

facts used to support his criminal penalty.” Plasencia, 886 F.3d at

1343. However, “sentencing procedures are not required to be as

exacting as those at trial,” and the “degree of due process protec-

tion required at sentencing is only that which is necessary to ensure

that the district court is sufficiently informed to enable it to exercise

its sentencing discretion in an enlightened manner.” Id. Ultimately,

the defendant’s “primary due process interest at sentencing is the

right not to be sentenced on the basis of invalid premises or inac-

curate information.” Id. As such, while “evidence presented at the

trial of another may not—without more—be used to fashion a de-

fendant’s sentence if the defendant objects,” it is permissible if the

defendant “had the opportunity to rebut the evidence or generally

to cast doubt upon its reliability.” United States v. Castellanos, 904

F.2d 1490, 1496 (11th Cir. 1990). In other words, the sentencing

court can consider evidence from another’s trial so long as it fol-

lows “the procedural safeguards incorporated in section 6A1.3 of

the guidelines,” id., which requires that the parties be given an ad-

equate opportunity to present information to the court regarding

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14 Opinion of the Court 24-13735

factors important to the sentencing determination that are reason-

ably in dispute, U.S.S.G. § 6A1.3(a). 11

1.

Carbajal objected at sentencing to the Court’s consideration

of the trial testimony in fashioning his sentence, so we review de

novo.

It is undisputed that Carbajal did not have the opportunity

to cross-examine at the coconspirators’ trial. However, he had the

opportunity at sentencing to rebut the testimony from it and to

cast doubt on its reliability. For example, when discussing Carbajal

and Navarro-Martinez’s relationship, Carbajal confirmed he had re-

viewed the relevant trial testimony; stated that he did not have the

opportunity to cross-examine on it; and argued that the two were

just friends, that they were both just participants in the DTO, and

that the DTO had multiple California sources. And, when asked

about Poole’s testimony regarding Carbajal’s plan to murder a co-

conspirator, Carbajal stated that he did not have the chance to

cross-examine Poole and that there was no evidence about the plan

other than Poole’s testimony on it. The Court followed the proce-

dural safeguards of Section 6A1.3 of the Guidelines, so its consid-

eration of testimony from the coconspirators’ trial was permissi-

ble. Carbajal’s due process rights were not violated.

11 Though hearsay is ordinarily not admissible, Fed. R. Evid. 801, “the law of

this Circuit clearly provides that reliable hearsay can be considered during sen-

tencing.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001).

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2.

Carbajal did not object at sentencing to the Court’s use of

the trial exhibits in fashioning his sentence, so we review for plain

error. However, we note at the outset that the analysis looks very

similar to the analysis of the trial testimony’s use as we do not find

error in either situation.

Like the testimony, Carbajal had the opportunity at sentenc-

ing to rebut the exhibits and cast doubt on their reliability. For ex-

ample, when discussing the flight records, he stated that Poole was

the one directing people to fly to California and that Carbajal was

one of many California sources. And, when discussing the financial

transactions connected to bank accounts in Carbajal’s name, Car-

bajal opined that Poole may have been the one who actually cre-

ated those accounts. The Court, again, followed the procedural

safeguards of Section 6A1.3, so its consideration of the exhibits

from the coconspirators’ trial was permissible. There was no error.

Carbajal fails under the first prong of plain error review. We need

not address the other prongs.

C.

Finally, Carbajal states, in the “lack of notice” section in his

brief, that the Court erred in not providing notice that it would

consider the sentences of unrelated defendants at his sentencing,

making the opportunity to respond to the sentences an “empty ges-

ture.” He then states in his “violation of due process” section that

the Court’s consideration of the unrelated defendants’ sentences

violated his due process rights because he had no notice it would

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16 Opinion of the Court 24-13735

consider the evidence and no opportunity to rebut it. While Car-

bajal presents these as two separate arguments, they are one and

the same: the Court erred by considering the sentences of unre-

lated defendants where Carbajal did not have notice that those sen-

tences would be considered. The Government responds that the

Sentencing Guidelines provided Carbajal the necessary notice.

A sentencing court must consider “the need to avoid unwar-

ranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). However, as stated above, “due process requires that

a criminal defendant have adequate notice of, and an opportunity

to contest, the facts used to support his criminal penalty.” Plasencia,

886 F.3d at 1343.

Though the Sentencing Guidelines provide a defendant no-

tice that the Court is to consider sentences of similarly situated de-

fendants, they do not provide notice of the specific defendants in-

volved. For notice that a general type of information may come up

is different from notice that specific facts will be considered. See

Plasencia, 886 F.3d at 1344 n.8 (collecting cases that state that the

Sentencing Guidelines provide advance notice to the defendant

that certain facts will be considered where the defendant is already

on notice of the existence of those facts); United States v. Canada,

960 F.2d 263, 266 (1st Cir. 1992) (explaining that advance notice of

an upward adjustment to the Guidelines range is not required

where that adjustment “is warranted based on offense or offender

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24-13735 Opinion of the Court 17

characteristics delineated within the Sentencing Guidelines them-

selves, at least where the facts relevant to the adjustment are already

known to [the] defendant” (emphasis added)). As such, Carbajal had

no notice that the sentences of these specific unrelated defendants

would be considered at his sentencing. The Court therefore erred

in considering the sentences.

It is arguable, though, whether this error was obvious.

While we have expressly stated that a defendant is owed “adequate

notice of . . . the facts used to support his criminal penalty,” Plas-

encia, 886 F.3d at 1343, Carbajal does not provide us a case where

we expressly state that the specific comparator defendant consti-

tutes one of those facts. However, it could be said that, because the

identity of the defendant is a fact in and of itself, the error was ob-

vious under our precedent. It’s unnecessary, though, for us to make

that determination here, because, regardless of prong two, Carba-

jal would lose under prong three of plain error review as the

Court’s error did not affect his substantial rights.

Any consideration the Court gave to the sentences of the

unrelated defendants was fleeting and tangential. After the Govern-

ment mentioned the unrelated defendants, the Court simply asked

what their criminal histories were and then moved on. Further, the

Court later stated that its sentencing decision was based on Carba-

jal’s criminal history, his personal history and characteristics, and

the nature and circumstances of the instant offense. Consideration

of the unrelated defendants’ sentences made up, at most, only a

minor fragment of the Court’s sentencing decision. And where the

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18 Opinion of the Court 24-13735

district court’s consideration of an impermissible factor at sentenc-

ing reflects “only a minor fragment of the court’s reasoning,” the

defendant’s substantial rights are unaffected. United States v. Vander-

grift, 754 F.3d 1303, 1312 (11th Cir. 2014).

The Court did not plainly err in considering the sentences

of unrelated defendants where Carbajal did not have prior notice

of that consideration.

III.

For the foregoing reasons, we affirm the sentence imposed

by the District Court.

AFFIRMED.