United States v. Jorge Lira-Xochicale ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10926
Non-Argument Calendar
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D.C. Docket No. 4:13-cr-00168-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LIRA-XOCHICALE,
a.k.a. Roger,
a.k.a. Juan De Dios,
a.k.a. Juan Diablo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 18, 2014)
Before HULL, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Jorge Lira-Xochicale appeals his sentence of 66 months of imprisonment
imposed for conspiring to transport a person in interstate commerce for purposes of
prostitution, 18 U.S.C. § 371, and conspiring to harbor illegal aliens for purposes
of financial gain, 8 U.S.C. § 1324(a)(1)(A)(v)(I). Lira-Xochicale argues that his
sentence is unreasonable. We affirm.
The district court did not abuse its discretion by varying upward 15 months
from the high end of Lira-Xochicale’s advisory guideline range of 41 to 51 months
of imprisonment. Lira-Xochicale and his coconspirators smuggled women into the
United States and used violence, intimidation, and threats of deportation to force
them to engage in prostitution. Lira-Xochicale transported at least six prostitutes
for the conspiracy, one of whom he called his “wife,” and he converted his
apartment into a makeshift brothel by hanging a sheet from the ceiling, placing a
mattress on the floor, and providing condoms and containers of personal lubricant.
The district court reasonably determined that a sentence of 66 months of
imprisonment was required to address the “nature and circumstances of [Lira-
Xochicale’s] offense” and his “history and characteristics,” and “to reflect the
seriousness of [his] offense,” “to promote respect for the law[,] . . . to afford some
deterrence to criminal conduct[,] and to protect . . . further victims [against similar
future] crimes [by Lira-Xochicale] and the members of the conspiracy.” See 18
U.S.C. § 3553(a). And Lira-Xochicale’s 66-month term is substantially less than
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his statutory maximum sentence of 15 years of imprisonment. See United States v.
Dougherty, 754 F.3d 1353, 1362 (11th Cir. 2014).
The reasons provided by the district court were sufficiently compelling to
justify the extent of its upward variance. See United States v. Irey, 612 F.3d 1160,
1186–87 (11th Cir. 2010) (en banc). The district court explained that the
recommended sentencing range failed to account for Lira-Xochicale’s “integral
part [in] the conspiracy”; his involvement with “more than eight victims”; his
“coordinat[ion] [of] the transportation and delivery of prostitutes with both of the
main or lead defendants”; his “transport[ion] [of] many of the prostitutes between
various locations throughout Georgia and other states”; and his actions “as a pimp
for prostitutes in the . . . Atlanta, Georgia area.” Lira-Xochicale’s sentence is
within the range of reasonable sentences for his role in the conspiracy. See id. at
1190. Lira-Xochicale argues that his “role in the offense . . . is not a basis for
departing from th[e] [recommended sentencing] range,” United States Sentencing
Guidelines Manual § 5H1.7 (Nov. 2013), but his sentence was the result of a
variance, not a departure.
Lira-Xochicale argues that his conduct “falls squarely within the typical sex
trafficking involving undocumented immigrants” and he received an unwarranted
variance that deserves the “closer review” called for in United States v.
Kimbrough, 552 U.S. 85, 109, 128 S. Ct. 558, 575 (2007), but we disagree. Lira-
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Xochicale’s offense differs from a “mine-run case,” id. at 109, 128 S. Ct. at 575,
where a conspirator smuggles illegal aliens into the United States and transports
them for a prostitution ring. Although it might be commonplace for the conspirator
to select a location for the prostitutes and to transport them, it is uncharacteristic
for him to act as their pimp.
We AFFIRM Lira-Xochicale’s sentence.
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