USA v. Carlos Lozano-Cordova

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13300
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00521-MSS-AAS-3

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

CARLOS LOZANO-CORDOVA,

Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 30, 2020)
Before WILSON, LAGOA and HULL, Circuit Judges.

PER CURIAM:
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Carlos Lozano-Cordova was sentenced to 120 months’ imprisonment—the
statutory mandatory minimum—for his conviction for conspiracy to possess five or
more kilograms of cocaine with intent to distribute while aboard a vessel, in
violation of 46 U.S.C. §§ 70503(a), 70506(a)–(b), and 21 U.S.C.
§ 960(b)(1)(B)(ii). On appeal, Lozano-Cordova first asserts that his sentence is
substantively unreasonable. The government asserts that this claim is barred by
Lozano-Cordova’s appeal waiver and, regardless, is meritless. Lozano-Cordova
then argues that his sentence is grossly disproportionate in violation of the Eighth
Amendment.
I.
“We review the validity of a sentence appeal waiver de novo.” United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). For an appeal waiver to
be effective, it must be made knowingly and voluntarily. United States v.
Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was
made knowingly and voluntarily, the government must show either (1) “the district
court specifically questioned the defendant” about the waiver during the plea
colloquy, or (2) the record makes clear “that the defendant otherwise understood
the full significance of the waiver.” Id. at 1351.
Here, the appeal waiver precludes Lozano-Cordova’s claim that his sentence
is substantively unreasonable. During the plea colloquy, the district court
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specifically questioned Lozano-Cordova about the appeal waiver, stating that “the
only ways that [he could] appeal [the] sentence” were if his sentence exceeded the
applicable guideline range, exceeded the maximum statutory penalty, violated the
Eighth Amendment, or was appealed by the government. Lozano-Cordova
affirmed that he understood. Accordingly, the waiver was made knowingly and
voluntarily. See Bushert, 997 F.2d at 1351. Even if the appeal waiver were
invalid, the sentence is not substantively unreasonable because the district court
properly imposed the statutory minimum sentence of 120 months. See United
States v. Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008) (concluding that the
district court lacked authority to sentence the defendant below the statutory
minimum based on its consideration of the 18 U.S.C. § 3553(a) factors).
II.
We review an Eighth Amendment claim of cruel and unusual punishment
not raised before the district court for plain error. United States v. Suarez, 893
F.3d 1330, 1335 (11th Cir. 2018). “Plain error review requires that there is an
error, it is plain, and it affects substantial rights.” Id.
“[T]he Eighth Amendment contains a narrow proportionality principle that
applies to noncapital sentences.” United States v. Bowers, 811 F.3d 412, 431 (11th
Cir. 2016) (alteration in original) (internal quotation marks omitted). “Generally,
sentences within the statutory limits are neither excessive, nor cruel and unusual
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under the Eighth Amendment,” as we afford “substantial deference” to Congress’s
“broad authority to determine the types and limits of punishments for crimes.” Id.
at 432 (internal quotation mark omitted). The mandatory nature of a non-capital
penalty is irrelevant for proportionality purposes. United States v. Farley, 607
F.3d 1294, 1343 (11th Cir. 2010). We have acknowledged that “successful Eighth
Amendment challenges in non-capital cases are exceedingly rare.” Suarez, 893
F.3d at 1336 (internal quotation mark omitted).
In examining an Eighth Amendment claim in a non-capital case, we follow a
two-part test. “First, we determine whether the sentence is grossly
disproportionate to the offense committed.” Id. (internal quotation mark omitted).
If it is, “we then consider sentences imposed on others convicted of the same
crime.” Id. When determining the seriousness of an offense, we consider the harm
caused by the type of crime in that case. Farley, 607 F.3d at 1344.
Lozano-Cordova’s Eighth Amendment claim is expressly exempted from his
appeal waiver. We review this claim for plain error because Lozano-Cordova did
not raise an Eighth Amendment objection to his sentence in district court. See
Suarez, 893 F.3d at 1335. Lozano-Cordova’s sentence does not violate the Eighth
Amendment because it is within the statutory limits, which suggests that it was not
excessive, see Bowers, 893 F.3d at 432, and because 120 months is not grossly
disproportionate for an offense involving 715 kilograms of cocaine. S ee Harmelin
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v. Michigan, 501 U.S. 957, 1002–04 (1991) (determining that a life sentence
without parole was not grossly disproportionate for a defendant convicted of
possessing 672 grams of cocaine). Accordingly, we affirm the district court.
AFFIRMED.
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