United States v. Marcel Charles , 439 F. App'x 812 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10954 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 30, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:10-cr-80132-JIC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MARCEL CHARLES,
a.k.a. Charles Marcel,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 30, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Marcel Charles appeals his sentence for attempting to reenter the United
States following deportation for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a)(2) and (b)(2). On appeal, Charles argues that his 41-month sentence is
unreasonable. For the reasons stated below, we affirm.
I.
On the night of August 26, 2010, a Customs and Border Protection Air Unit
spotted a suspicious vessel traveling towards Florida. A Coast Guard patrol boat
was dispatched to intercept the vessel, and Charles was one of four individuals
found on board. Charles admitted that he had been attempting to enter the United
States illegally and had paid $500 to be brought to the United States. A records
check revealed that Charles had been removed from the United States to Haiti on
December 11, 1992, and again on April 11, 2005. Charles had two prior drug
trafficking convictions, as well as a 2001 conviction for illegal reentry following
deportation. The presentence investigation report determined that Charles had a
guideline range of 41 to 51 months’ imprisonment.
At the sentencing hearing, Charles requested a downward variance from the
advisory guideline range. He explained that he admitted guilt immediately
following his arrest and was debriefed by the government. Although his
information had not been valuable enough to warrant a downward departure under
U.S.S.G. § 5K1.1, he argued that the district court could still consider his
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cooperation in determining whether to impose a variance. Charles also noted that
he had received a 16-level sentencing enhancement based on drug convictions that
were over 22 years old. He suggested that the court should vary downward to
account for the age of those prior convictions. Finally, Charles noted that he had
come to the United States to find work to support his family. He explained that he
was from Haiti, and that the conditions in that country were terrible due to the
recent earthquake. The government asked the district court to impose a sentence
within the guideline range.
The district court sentenced Charles to a term of 41 months’ imprisonment.
The court explained that it had considered the statements of the parties, the PSI,
and the 18 U.S.C. § 3553(a) factors in arriving at that sentence. Charles objected
to the district court’s denial of a variance.
II.
We review a sentence imposed by a district court for reasonableness, using
an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278
(11th Cir. 2009). We follow a two-step process in reviewing a sentence. First, we
must ensure that the district court did not commit a significant procedural error.
Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L.Ed.2d 445(2007). Among other things, we must consider whether the district court
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adequately explained the reasons for the defendant’s sentence. Id. The district
court’s explanation must “set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127
S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).
If the district court’s sentencing decision is procedurally sound, we must
then determine whether the sentence is substantively reasonable in light of the
§ 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The party challenging
the sentence has the burden of showing that it is unreasonable in light of the
record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005). We “recognize that there is a range of reasonable sentences from
which the district court may choose,” and ordinarily expects a sentence within the
defendant’s advisory guideline range to be reasonable. Id. The § 3553(a) factors
include, among other things: (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
public from further crimes of the defendant; and (5) the sentencing guideline
range. 18 U.S.C. § 3553(a).
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In this case, the district court explained that it had considered the statements
of the parties, the information in the PSI, and the § 3553(a) factors. Thus, the
record shows that the district court adequately considered all of Charles’s
arguments as to why he should receive a downward variance. In addition,
Charles’s 41-month sentence is substantively reasonable. Although Charles
identified three mitigating factors—his cooperation with the government, the age
of the prior convictions used to enhance his sentence, and the fact that he was
coming to the United States to support his family—other factors weighed in favor
of a sentence within the guideline range. First, the record reflects that Charles had
a previous conviction for illegally reentering the United States. Thus, a longer
sentence was justified based on Charles’s personal history and characteristics and
the need to promote respect for the law. See 18 U.S.C. § 3553(a)(1), (a)(2)(A). A
41-month sentence also has the effect of deterring others from attempting to
reenter the United States illegally. See 18 U.S.C. § 3553(a)(2)(B). Finally,
Charles’s sentence is at the low end of his advisory guideline range, which we
ordinarily expect to be reasonable. See Talley, 431 F.3d at 788. In light of all the
facts and circumstances of this case, the district court did not abuse its discretion
by sentencing Charles to 41 months’ imprisonment. Accordingly, we affirm
Charles’s sentence.
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AFFIRMED.
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