USA v. Alberto Torres Garrastequi

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 26, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13369
Non-Argument Calendar
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D. C. Docket No. 08-00228-CR-ORL-28KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO TORRES GARRASTEQUI,
a.k.a. Tito Pasture,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 26, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:

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Alberto Torres Garrastequi appeals the district court’s imposition of 21
U.S.C. § 841(a)(1)’s 120-month mandatory minimum sentence. He argues that
§ 841(a)(1)’s mandatory minimum sentencing provisions violate the separation of
powers doctrine, his due process rights, and 18 U.S.C. § 3553(a), which prohibits
courts from imposing a sentence that is “greater than necessary” to achieve the
goals of sentencing. For the reasons set forth below, we affirm.
I.
Garrastequi pled guilty to conspiracy to possess with intent to distribute five
or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
According to the presentence investigation report (“PSI”), law enforcement
officials determined that, from 2006 through June 2007, a specific drug trafficking
organization mailed up to 40 to 50 kilograms of cocaine almost every week from
Puerto Rico to Orlando. During the course of the conspiracy, Garrastequi worked
directly with Miguel Antonio Montes, who was a leader and organizer of the
cocaine smuggling operation in Orlando, Florida. Authorities intercepted at least
35 telephone calls between Garrastequi and Montes in which Garrastequi and
Montes discussed distribution of the cocaine. Garrastequi also delivered cocaine to
a co-conspirator on one occasion.
The PSI set Garrastequi’s total offense level at 29. His total offense level of
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29 combined with criminal history category I to yield a guideline imprisonment
range of 87 to 108 months. The PSI noted that, pursuant to 21 U.S.C.
§ 841(b)(1)(A), Garrastequi was subject to a mandatory minimum term of ten
years’ imprisonment.
At sentencing, Garrastequi objected to the imposition of the statutory
minimum sentence, arguing that the statutory minimum violated the separation of
powers doctrine. The court adopted the factual statements and guideline
calculations set forth in the PSI, determining that Garrastequi’s applicable
guideline imprisonment range was 120 months.
The government recommended imposition of the statutory minimum
sentence. Garrastequi again noted his objection that the statutory minimum was
unconstitutional because it violated the separation of powers doctrine. The court
sentenced Garrastequi to 120 months’ imprisonment, to be followed by a 5-year
term of supervised release. The court noted that, if Garrastequi had not been
subject to the statutory minimum, it would have imposed a lesser sentence. At the
close of the sentencing proceeding, the court asked if either party had objections to
the sentence or the manner in which the sentence was imposed. Both parties
indicated that they had no objections.
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II.
Separation of Powers
We have rejected claims that mandatory minimum sentences violate the
separation of powers doctrine. United States v. Holmes, 838 F.2d 1175, 1178 (11th
Cir. 1988) (dealing specifically with the statutory penalties set forth in 21 U.S.C.
§ 841(b)(1)). We noted that “[i]t is for Congress to say what shall be a crime and
how that crime shall be punished.” Id. The Supreme Court has held that the
Sentencing Guidelines are to be applied in an advisory fashion. United States v.
Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005).
However, we have determined that “[e]ven after Booker, the district court is bound
by the statutory mandatory minimums.” United States v. Ciszkowski, 492 F.3d
1264, 1270 (11th Cir. 2007); Kimbrough v. United States, 552 U.S. 85, 108, 128
S.Ct. 558, 574, 169 L.Ed.2d 481 (2007) (holding that while district courts may
grant variances based on the crack-to-powder cocaine disparity, they are still
constrained by statutory mandatory minimums).
As explained above, Garrastequi’s argument that § 841's mandatory
minimum penalties violate the separation of powers doctrine is foreclosed by
Holmes and Ciszkowski, which are binding precedent. See United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008) (recognizing that “a prior panel’s holding is
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binding on all subsequent panels”). Accordingly, the district court did not violate
the separation of powers doctrine by sentencing Garrastequi to the statutory
minimum term of imprisonment.
Due Process
Constitutional challenges raised for the first time on appeal are reviewed for
plain error. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.
2005). Under the plain error standard, a defendant must show (1) error, (2) that is
plain, and (3) that affects substantial rights. Id. We may exercise our discretion to
correct a plain error if the error “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Garrastequi’s due process argument is foreclosed by precedent. We have
held that § 841's mandatory minimum sentences do not deprive a defendant of an
individualized sentencing proceeding or due process. See Holmes, 838 F.2d at
1177 (noting that § 841(b)(1) only establishes a minimum and maximum penalty
and does not prevent a defendant from presenting “information concerning his
background, character and conduct to aid the sentencer in determining an
appropriate sentence”). Accordingly, Garrastequi has failed to show that the
district court plainly erred by violating his due process rights when it sentenced
him to the ten-year statutory minimum.
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18 U.S.C. § 3553(a)
We review sentencing arguments raised for the first time on appeal for plain
error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009). Under the
plain error standard, a defendant must show (1) error, (2) that is plain, and (3) that
affects substantial rights. Camacho-Ibarquen, 410 F.3d at 1315. We may exercise
our discretion to correct a plain error if the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id.
Garrastequi has failed to show that the district court erred, let alone
committed plain error, by failing to sentence him below the statutory minimum
based on a consideration of the 18 U.S.C. § 3553(a) sentencing factors. We have
held that Ҥ 3553(a) merely lists the factors the district court must consider in
determining an appropriate sentence” and “plainly does not confer upon the district
court the authority to sentence a defendant below the statutory mandatory
minimum based on its consideration of the § 3553(a) factors.” United States v.
Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008). Accordingly, because all of
Garrastequi’s arguments are foreclosed by binding precedent, we affirm
Garrastequi’s 120-month sentence.
AFFIRMED.
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