United States v. Natividad Ortega-Giles , 614 F. App'x 420 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15272
Non-Argument Calendar
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D.C. Docket No. 2:14-cr-14037-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATIVIDAD ORTEGA-GILES,
a.k.a. Natividad Giles Ortega,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 8, 2015)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
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After pleading guilty to reentry of a deported alien, in violation of 8 U.S.C.
§ 1326(a) and (b)(1), Natividad Ortega-Giles appeals his 57-month sentence,
imposed at the low end of the advisory guidelines range of 57 to 71 months. On
appeal, Ortega-Giles argues that his sentence is procedurally unreasonable because
the district court failed to consider and address his argument for a downward
variance based on his cultural assimilation or explain its rejection of his variance
request. After review, we affirm.
“We review the reasonableness of a sentence for abuse of discretion using a
two-step process.” United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010).
We look first at whether the district court committed any significant procedural
error, such as failing to explain adequately the chosen sentence, and then examine
whether the sentence is substantively unreasonable under the totality of the
circumstances and in light of the § 3553(a) factors. United States v. Pugh, 515
F.3d 1179, 1190 (11th Cir. 2008). 1 The party challenging the sentence bears the
burden to show it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010).
The district court must “adequately explain the chosen sentence to allow for
meaningful appellate review . . . .” United States v. Livesay, 525 F.3d 1081, 1090
1
Ortega-Giles does not contend his 57-month sentence is substantively unreasonable.
Further, the only challenge he makes with respect to procedural reasonableness is to the
sufficiency of the district court’s explanation of the sentence.
2
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(11th Cir. 2008) (quotation marks omitted); see also 18 U.S.C. § 3553(c) (requiring
the district court, at the time of sentencing, to state in open court the reasons for its
imposition of a particular sentence).2 “[T]he sentencing [court] should set forth
enough to satisfy the appellate court that [it] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal decisionmaking authority.”
United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (quotation marks
omitted).
Although the district court must consider the § 3553(a) factors, it need not
discuss each factor on the record and an acknowledgement that the court has
considered the factors generally will suffice. See United States v. Amedeo, 487
F.3d 823, 832 (11th Cir. 2007). Furthermore, “when a judge decides simply to
apply the Guidelines to a particular case, doing so will not necessarily require a
lengthy explanation. Circumstances may well make clear that the judge rests his
decision upon the [Sentencing] Commission’s own reasoning that the Guidelines
sentence is a proper sentence . . . .” Rita v. United States, 551 U.S. 338, 356, 127
S. Ct. 2456, 2468 (2007). “Where the defendant or prosecutor presents
nonfrivolous reasons for imposing a different sentence, however, the judge will
normally go further and explain why he has rejected those arguments.” Id. at 357,
127 S. Ct. at 2468. Nonetheless, how much explanation is needed depends on the
2
We review de novo whether the district court sufficiently explained its chosen sentence
under 18 U.S.C. § 3553(c). United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006).
3
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circumstances of the case and “[t]he law leaves much, in this respect, to the judge’s
own professional judgment.” Id. at 356, 127 S. Ct. at 2468 (accepting as “legally
sufficient” a district court’s explanation where the district court, after listening to
the defendant’s arguments for a downward variance, said merely that the original
guidelines range was not “inappropriate” and that the lowest sentence within the
guidelines range was “appropriate”).
Ortega-Giles has not shown that his sentence is procedurally unreasonable.
The district court listened to extensive argument from both parties as to whether
the § 3553(a) factors supported a downward variance based on Ortega-Giles’s
cultural assimilation in the United States. 3 Specifically, Defendant Ortega-Giles
argued that: (1) he had grown up in the United States from the age of three and was
fluent in English; (2) most of his family lived in the United States; (3) his criminal
history was less serious than it appeared, consisting mostly of minor traffic-related
offenses that were committed when he was “young and just being stupid”; and (4)
his offenses committed after illegally re-entering the United States also involved
misdemeanor traffic-related charges, including driving under the influence, racing
on highways, and driving without a valid license.
3
Although the parties, in making arguments for and against a below-guidelines sentence,
referred to the factors for imposing a downward departure under U.S.S.G. § 2L1.1, it is clear
from the record that what Ortega-Giles sought, and was denied, was a downward variance from
the correctly calculated guidelines range based on the § 3553(a) factors (in particular the history
and characteristics of the defendant), rather than a downward departure under § 2L1.1. See
United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009).
4
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The government, on the other hand, pointed out that: (1) Ortega-Giles’s
2007 felony cocaine trafficking offenses, which resulted in his 2011 deportation,
were very serious; (2) after returning to the United States, he resumed his criminal
activity, which, while not drug-related, was also serious; and (3) his other, less-
serious offenses showed a pattern of disregard for the system, all of which
indicated that a guidelines sentence was appropriate to deter Ortega-Giles from
returning to the United States and committing more crimes here.
After hearing the pros and cons and allowing Ortega-Giles to address the
court personally, the district court stated that it had considered the statements and
arguments of counsel, the defendant’s cultural assimilation argument, the
defendant’s statement to the court, the presentence investigation report, which
included the advisory guidelines, and the § 3553(a) factors and imposed a 57-
month guidelines sentence.
The district court’s explanation for the chosen sentence is legally sufficient
under Rita. Contrary to Ortega-Giles’s claims, Rita does not require a district court
in every instance to explain why it has denied a defendant’s request for a
downward variance. Ortega-Giles’s request for a variance was “conceptually
simple” and the record is sufficiently clear as to the reasoning that underpinned the
district court’s decision. See Rita, 551 U.S. at 358-59, 127 S. Ct. at 2469. The
district court’s acknowledgment of Ortega-Giles’s cultural assimilation argument
5
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indicates that the district court heard and rejected that argument and agreed with
the government’s position.
For these reasons, the district court adequately explained its reasons for
imposing a 57-month sentence, and Ortega-Giles has not shown his sentence is
procedurally unreasonable.
AFFIRMED.
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