UNITED STATES OF AMERICA v. ERIC BRENES-COLON
No. 24-10355
United States Court of Appeals for the Eleventh Circuit
May 19, 2025
[PUBLISH] Non-Argument Calendar
D.C. Docket No. 8:23-cr-00068-TPB-AAS-1
Before LAGOA, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
Eric Brenes-Colon appeals his total sentence of 108 months’ imprisonment for conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, possession with intent to distribute 500 grams or more of cocaine, and possession with intent to distribute MDMA. Brenes-Colon argues that the District Court plainly procеdurally erred by relying on a clearly erroneous fact—its
I. Background
Brenes-Colon was arrested pursuant to an investigation into his co-conspirator for trafficking firearms and large quantities of powder cocaine, marijuana, and MDMA tablets. Brenes-Colon obtained kilogram quantities of cocaine from a source in Puerto Rico and provided it to his co-conspirator fоr further distribution. He also paid the co-conspirator to receive shipments of cocaine from Puerto Rico. Following controlled purchases of MDMA, marijuana, firearms, and cocaine, agents arrested the co-conspirator.
Brenes-Colon was living at the co-conspirator‘s apartment, and agents encountered him hurriedly walking away while they executed a search warrant. On his person, agents located 95 grams of cocaine and keys to the apartment. And in the apartment, agents discovered 753.4 grams of marijuana, 580 grams of cocаine, 72.75 grams of MDMA, drug paraphernalia, a firearm, a large quantity of cash, and evidence that Brenes-Colon inhabited the dwelling.
Brenes-Colon was charged with conspiracy to distribute and pоssess with intent to distribute 500 grams or more of cocaine, possession with intent to distribute 500 grams or more of cocaine, and possession with intent to distribute MDMA. He pleaded guilty to all three counts. At sentencing, the District Court commented multiple times on the seriousness of Brenes-Colon‘s criminal activities due to the volume of illegal drugs which he trafficked. This was problematic, according to the Distriсt Court, because “[t]he number one killer of Americans between 18 and 35 is not COVID or car crashes or suicide or heart attacks. It‘s illegal drugs.” Accordingly, the Court sentenced Brenes-Colon to a sеntence of 108 months’ imprisonment, which was within the Guidelines range.
Brenes-Colon appeals that sentence, arguing the Court plainly procedurally erred by relying on this clearly erroneous statеment while sentencing him.
II. Standard of Review
Ordinarily, we review “the reasonableness of a sentence under an abuse-of-discretion standard.” United States v. Rodriguez, 75 F.4th 1231, 1241 (11th Cir. 2023) (internal quotation marks omitted). “But if a defendant fails to object at sentеncing to the procedural reasonableness of the sentence imposed by the district court, [we] review[] for plain error.” United States v. Steiger, 107 F.4th 1315, 1320 (11th Cir. 2024). Because Brenes-Colon did not object to his sentencе below, we review the District Court‘s sentence for plain error. See id.
III. Discussion
Brenes-Colon has not met his burden of showing the District Court committed error, much less plain error, in his sentencing. To establish plain error, Brenes-Colon must demonstrate that: “(1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial proceedings.” United States v. Ramirez-Flores, 743 F.3d 816, 822 (11th Cir. 2014).
First, we are not pеrsuaded that the District Court committed any error. The District Court illustrated, in the course of announcing its sentence of Brenes-Colon, the gravity of engaging in the illegal drug trade by observing that
We understand the District Court‘s observations as to the tragic effects of the illegal drug trade to be a result of its еxperience, common sense, and good judgment. This conclusion is supported by the Court‘s immediately preceding statement that large amounts of trafficked illegal drugs are “a problem, because drugs kill people.” Moreover, the District Court‘s experience with drug trafficking is indicated by its comments during sentencing comparing the sentencing of “low-level guy[s]” engaged in drug trafficking to that оf Brenes-Colon, who trafficked “a lot of cocaine.” The absence of precise statistical evidence in the record supporting the District Court‘s statement does not overcome judicial common sense arising from the Court‘s experience and observations in criminal cases. See Gall v. United States, 552 U.S. 38, 53, 128 S. Ct. 586, 598 n.7 (2007) (noting that district courts have an institutional advantage in marshalling facts and judging their import at sentencing because of the number of sentences they impose annually). The data Brenes-Colon points to as controverting the Court‘s statement do not vitiate the Court‘s observations аnd transform them into reversible error.1
And even if the District Court‘s statement constituted error, Brenes-Colon has not established that it was plain error. “An error is plain if the explicit language of a statutе or rule or precedent from the Supreme Court or this Court directly resolves the issue and establishes that an error has occurred.” United States v. Boone, 97 F.4th 1331, 1339 (11th Cir. 2024) (internal quotation marks omitted). No statute or rule directly establishes that the District Court‘s statement constituted error. Nor can we locate any controlling precedent to that effect. Rather, a court may rely on its own experience tо note at sentencing the deadly effects of drugs on American adults. See Shaw, 560 F.3d at 1238; United States v. Philidor, 717 F.3d 883, 885-86 (11th Cir. 2013) (stating a district court may make inferences “based on common sense and ordinary human experience” at sentenсing); accord United States v. Cotchery, 834 F. App‘x 555, 558–59 (11th Cir. 2020) (affirming a sentence where the sentencing court commented on the dangerousness of the drugs at issue to the community without relying on evidence in the record).
Finally, Brenes-Colon cannot meet his burden of showing that any plain error affected his substantial rights. See Boone, 97 F.4th at 1339. For an error to affect substantial rights, it must have been prejudicial, meaning that it affected the outcome of the District Court proceedings. United States v. Olano, 507 U.S. 725, 734 (1993). A plain sentencing error affects the dеfendant‘s substantial rights when there is a reasonable probability that, but for the error, he would have received a lesser sentence. United States v. Arias-Izquierdo, 449 F.3d 1168, 1190 (11th Cir. 2006).
Here, the District Court‘s comment about the deadliness of illegal drugs was only tangential to its overarching sentencing rationale. The District Court repeatedly pointed to the volume of Brenes-Colon‘s drug trade as the basis for his sentence, not the deadliness of the trafficked drugs. Thus, the Court began its list of negative factors affecting Brenes-Colon‘s sentence by pointing out that “there was a lot of drugs here.” The Court‘s comment about the grave effects of Brenes-Colon‘s drugs turned on the risks of having a “large amount” or “large dollar value[] of drugs” in the community. This volume separated Brenes-Colon from “a street-level dealer” because “he was operating at a higher level.” A smaller volume would have resulted in a five-year sentence rather than 108-months’ imprisonment. Indeed, the Court openly stated that it must give Brenes-Colon a more severe sentеnce “due to this volume” of drugs. Accordingly, even absent the statement at issue we do not believe there is a reasonable probability that Brenes-Colon would have received a lesser sentence. See id. at 1190.
IV. Conclusion
Because Brenes-Colon has not shown the District Court committed plain error in his sentencing, we affirm the District Court‘s sentence.
AFFIRMED.