USA v. Gabino Ortiz, Jr., No. 12-14318 (11th Cir. 2013)
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Case: 12-14318 Date Filed: 08/06/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________________ No. 12-14318 Non-Argument Calendar ___________________________ Docket No. 3:11-cr-00105-RV-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GABINO ORTIZ, JR., a.k.a. Gabino Ortiz-Valencia, Defendant-Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Florida _______________________________ (August 6, 2013) Before MARCUS, KRAVITCH, and EDMONDSON, Circuit Judges. Case: 12-14318 Date Filed: 08/06/2013 Page: 2 of 3 PER CURIAM: Gabino Ortiz, Jr. appeals his total 228-month sentence, imposed after he pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846 (Count 1), one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii), and 18 U.S.C. § 2 (count 2), one count of possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) (Count 3), and one count of possession or use of a counterfeit resident alien card, in violation of 18 U.S.C. § 1546(a) (Count 4). The appeal presents this issue: Whether the district court and the government violated U.S.S.G. § 1B1.8 by setting Ortiz s base offense level on the basis of a drug quantity that he and his codefendant father independently disclosed pursuant to their cooperation agreements with the government: an issue not raised in the district court by an objection. Because the evidence showed that the drug quantity attributed to Ortiz, Jr. was derived independently from a codefendant (Ortiz, Jr. s father) and not from statements Ortiz, Jr. gave as part of his plea and cooperation agreement, the district court -- to say the least -- did not plainly err in its attribution of drug quantity to Ortiz, Jr.; U.S.S.G. § 1B1.8 was not violated. For background, see United States 2 Case: 12-14318 Date Filed: 08/06/2013 Page: 3 of 3 v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006) (evidence of drug quantity obtained from independent source: codefendant). AFFIRMED. 3
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