Case: 12-15358   Date Filed: 08/02/2013    Page: 1 of 4


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15358
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cr-00221-SCB-TGW-2



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                  versus

JUAN SAMORA GARCES,

                                                     Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 2, 2013)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Juan Samora Garces appeals his 135-month sentences after pleading guilty

to the following offenses that took place while he was aboard a vessel that was

subject to the jurisdiction of the United States: (1) conspiracy to possess with intent

to distribute five kilograms or more of cocaine, in violation of

46 U.S.C. §§ 70503(a), 70506(a) and (b), and 21 U.S.C. § 960(b)(1)(B)(ii); and

(2) possession with intent to distribute five kilograms or more of cocaine, in

violation of 46 U.S.C. §§ 70503(a) and 70506(a), 18 U.S.C. § 2, and 21 U.S.C.

§ 960(b)(1)(B)(ii).

      On appeal, Garces argues that his sentences are unreasonable in light of 18

U.S.C. § 3553(a)(6), which requires a district court to avoid unwarranted sentence

disparities between similarly situated codefendants. Garces contends that his

codefendant, Elpidio Fernandez Blanco, received a below-guidelines sentence of

120 months and the only factor distinguishing himself from Blanco is that Blanco

entered into an agreement with the government and waived his right to appeal,

whereas Garces rejected the government’s offer and entered an open plea of guilty

to the court. Garces claims that the district court punished him for rejecting the

government’s offer, thus creating the appearance of judicial vindictiveness.

      We review a final sentence imposed by the district court for an abuse of

discretion. United States v. Irey, 

, 1188-89 (11th Cir. 2010) (en

banc). Evaluating substantive reasonableness requires this Court to weigh the


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totality of the circumstances to determine whether the sentence lies outside the

range of reasonable sentences dictated by the facts of the case. 

to § 3553(a)(6), the district court is required to avoid unwarranted

sentence disparities between codefendants with similar records who have been

found guilty of similar conduct. United States v. Docampo, 

, 1101

(11th Cir. 2009). “A well-founded claim of disparity, however, assumes that

apples are being compared to apples.” 

v. Mateo-Espejo,

, 514 (1st Cir. 2005)). A defendant who cooperates with the

government and enters a written plea agreement is not similarly situated to a

defendant who provides no assistance to the government and proceeds to trial.

. “[I]t would seem patently unreasonable to endorse a

regime in which a defendant could steadfastly withhold cooperation from the

authorities and then cry foul when a coconspirator benefits from rendering

substantial assistance to the government.” 

F.3d at

514).

        We find that Garces’s 135-month sentences are substantively reasonable.

Garces does not demonstrate that he is similarly situated to Blanco, who

cooperated with the government, and had personal characteristics and economic

circumstances that warranted the unopposed variance. Garces has not

demonstrated the district court abused its discretion.


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AFFIRMED.




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