UNITED STATES v. ORTIZ HERNANDEZ (2020)

ORDER AND JUDGMENT *

This appeal involves sentencing in two drug-trafficking cases. The defendant, Mr. Victor Ortiz-Hernandez, faced a guideline range of 168 to 210 months’ imprisonment and requested a downward variance to 120 months. The district court denied the request and sentenced Mr. Ortiz-Hernandez to the bottom of the guideline range (168 months) in both cases.

In this appeal, Mr. Ortiz-Hernandez challenges only the refusal to vary downward, arguing that the district court based this decision on a factual mistake. This argument relates to the district court's explanation that it had imposed 120-month sentences for less culpable defendants in a related drug trafficking case who had served only as couriers. Mr. Ortiz-Hernandez argues that this explanation was based on a factual mistake because the couriers had received sentences of less than 120 months.

But the record does not show a factual mistake. The government identifies the two couriers as Sonia Garibaldi-Bravo and Cesar Martin Hernandez. Both individuals received

• 120-month sentences,

• were identified in their presentence reports as couriers, and

• were defendants in United States v. Felix-Tavizon, No. CR-17-2943-WJ (D. N.M.), which the government had identified as related to the prosecution of Mr. Ortiz-Hernandez.

Mr. Ortiz-Hernandez points out that his presentence report did not list Felix-Tavizon as a related case. So what? The government identified Felix-Tavizon as a related case, and Mr. Ortiz-Hernandez gives no reason to question that characterization. The district court explained that it had sentenced two other less culpable defendants in a related case to 120-month sentences. This explanation was correct, so we affirm Mr. Ortiz-Hernandez's sentences.

Robert E. Bacharach, Circuit Judge