United States v. Perez Manuel Peguero , 669 F. App'x 552 ( 2016 )

Case: 15-15625 Date Filed: 10/13/2016 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15625
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60205-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEREZ MANUEL PEGUERO,
a.k.a. Alexander Marcelino Perez-Sanchez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 13, 2016)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Manuel Perez-Peguero appeals his 46-month sentence, imposed at the low
end of the advisory guideline range, after pleading guilty to one count of illegal
reentry after removal, in violation of 8 U.S.C. § 1326(a). On appeal, Perez-
Peguero argues that the District Court abused its discretion because his 46-month
sentence was substantively unreasonable. He argues that the PSI contained no
description of his role in a prior drug trafficking conviction that caused a 16-level
increase in his offense level, and that the Court “ignored, or failed to adequately
consider” his argument for a downward variance. After careful review, we affirm.
Perez-Peguero is a native and citizen of the Dominican Republic. He has
been removed from the United States on three occasions prior to arrest in the
present case. Previously, he had been removed following a felony drug trafficking
conviction. Perez-Peguero’s guideline range at sentencing was 46-57 months. He
moved the District Court for a downward variance, arguing that he should only be
sentenced to imprisonment for 30 months. The District Court heard argument on
the motion, and, after stating that it considered “statements by all the parties” and
undertook “a complete review of the entire presentence report which contains the
advisory guideline computation and range,” sentenced Perez-Peguero to 46 months
imprisonment. The District Court asked whether Perez-Peguero objected to the
sentence, and he did not.
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Ordinarily, we review the reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed.
2d 445 (2007). However, we review sentencing arguments raised for the first time
on appeal for plain error. United States v. Barrington, 648 F.3d 1178, 1195 (11th
Cir. 2011). Plain error occurs when the district court (1) made an error; (2) that
error is plain or obvious; (3) the error affects a substantial right of the defendant;
and (4) the error “seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.
2005).
Because Perez-Peguero failed to object to his sentence, we review it for
plain error. Perez-Peguero mainly challenges the sufficiency of the District
Court’s explanation regarding his sentence. The district court is required to
consider all the factors contained in 18 U.S.C. § 3553(a) and decide whether the
factors support the sentence. United States v. Pugh, 515 F.3d 1179, 1191 (11th
Cir. 2008). However, the district court sufficiently addresses the § 3553(a) factors
when it acknowledges that it has considered the factors and the defendant’s
arguments. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
When imposing a sentence, the court need not “articulate his findings and
reasoning with great detail.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir.
2010) (en banc).
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Here, the lack of explicit explanation was not an error, plain or otherwise,
because the Court heard and acknowledged Perez-Peguero’s argument and stated
that it had considered the statements of the parties and the § 3553(a) factors. See
Gonzalez, 550 F.3d at 1324. The Court was required to do no more. See Irey, 612
F.3d at 1195. Moreover, Perez-Peguero waived the right to object to the contents
of the PSI on appeal because he did not raise a clear and specific objection to it at
sentencing. United States v. Ramirez-Flores, 743 F.3d 816, 824 (11th Cir. 2014);
United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). Thus, Perez-Peguero
has not shown that his sentence was unreasonable on that basis.
Had Perez-Peguero attacked the substantive reasonableness on some other
basis, the argument likely would have failed. Two key elements of his sentence
indicate that it was reasonable. First, we ordinarily expect a sentence falling within
the guideline range to be reasonable. United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2008). Second, a sentence imposed well below the statutory maximum
penalty is another indicator of a reasonable sentence. See Gonzalez, 550 F.3d at
1324. Perez-Peguero’s 46-month sentence was less than half of the statutory
maximum of 120 months and was the lowest sentence recommended in his
guideline range. Therefore, the district court did not abuse its discretion in
imposing a 46-month sentence. Accordingly, Perez-Peguero’s sentence is
AFFIRMED.
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