United States v. Alexis Leon Perez , 418 F. App'x 829 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________ COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
No. 09-13511 MARCH 18, 2011
JOHN LEY
_____________________________
CLERK
District Court Docket No. 09-10012-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS LEON PEREZ,
Defendant-Appellant.
_____________________________
No. 09-13559
_____________________________
District Court Docket No. 09-10012-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGUEY ORTIZ MEDINA,
Defendant-Appellant.
____________________________
Appeals from the United States District Court
for the Southern District of Florida
____________________________
(March 18, 2011)
Before EDMONDSON and PRYOR, Circuit Judges, and EVANS,* District Judge.
EVANS, District Judge:
Alexis Leon Perez (“Perez”) and Serguey Ortiz Medina (“Medina”) appeal
their sentences on one count of conspiracy to encourage and induce aliens to enter
and reside in the United States, knowing and in reckless disregard of the fact that
such coming to, entry, and residence is and will be in violation of Title 8 U.S.C.
§ 1324(a)(1)(A)(iv).1 Medina argues that the district court erred in enhancing his
guideline offense level by two points for intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person under U.S.S.G.
§ 2L1.1(b)(6). Perez argues that the district court erred in refusing to reduce his
*
The Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
1
Both Perez and Medina also were charged with 32 counts of alien smuggling, in
violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and 18 U.S.C. § 2. Pursuant to negotiated plea
agreements, both Perez and Medina entered pleas of guilty to the conspiracy charge and the
government agreed to dismiss the 32 counts of alien smuggling. On July 6, 2009 the district
court sentenced Perez and Medina to 60 month terms of imprisonment, followed by two years of
supervised release.
2
offense level by three points under U.S.S.G. § 2L1.1(b)(1) because he did not
commit the offense for profit. Both Perez and Medina argue that the district court
erred in imposing sentences which were substantially above their sentencing
guideline ranges.2 After careful consideration of Perez’s and Medina’s arguments,
we affirm.
BACKGROUND
At the plea hearing, the government proffered the following facts, which
both Perez and Medina agreed were correct: On January 4, 2009 the United States
Coast Guard (“USCG”) received information regarding a vessel in the area of
Anguilla Cay, in the Bahamas. Upon intercepting the vessel, the USCG boarding
team discovered a total of 34 persons on board, including the two suspected
smugglers, Alexis Leon Perez and Serguey Ortiz Medina, and 32 Cuban nationals
who did not have permission to enter the United States. Perez and Medina
conspired to bring the 32 Cuban nationals into the United States knowing it would
be in violation of U.S. law. The 32 Cuban nationals were repatriated to Cuba and
Cuba accepted their return.
2
We are addressing only those matters raised on appeal and will not discuss other aspects
of the sentencing hearing.
3
According to each defendant's Presentence Investigation Report (“PSI”),
Perez and Medina are Cuban citizens who had lived in the South Florida region of
the United States for several years before the instant offense occurred. Perez’s PSI
states that Immigration and Customs Enforcement records indicate that Perez
entered the country on January 11, 2003 and is “legally residing in the United
States as a legal permanent resident.” Medina’s PSI states that Medina entered the
United States in May 2007 and was issued an employment authorization document
in July 2007, which expired June 7, 2008. On January 20, 2009 the Executive
Office of Immigration Review had ordered Medina’s removal.
The offense conduct section of the PSI explains that on January 4, 2009 the
USCG interdicted a 32-foot recreation, go-fast vessel operated by two smugglers,
identified as Perez and Medina. The USCG found 32 Cuban nationals on board
who did not have permission to enter the United States. The Cuban nationals
suffered from seasickness; one adult male was unconscious, but breathing with a
steady pulse; and one adult female was five weeks pregnant. Perez and Medina
were issued violations for overload of the vessel and insufficient number of
personal flotation devices.
The PSI further explains that, after he was given Miranda warnings, Medina
identified the other person from the boat as Perez and reported that the boat
4
belonged to Israel Gato (“Gato”), a fisherman. Medina stated Perez asked for
permission to utilize the boat for a fishing trip, and Medina joined him to fish on
the morning of January 4, 2009. When asked what type of bait he used, Medina
stated that he did not know but described it as something very small and plastic.
Medina also said he used a fishing pole. However, when the vessel was
inventoried, there was no fishing equipment on board. Medina explained that he
and Perez had gotten lost, and as night approached, they heard noises and then
they saw a sinking boat. Medina stated that Perez rushed over to the vessel,
described by Medina as a wooden boat with an engine that was not working, and
rescued the “desperate and screaming” passengers who were sunburned and
dehydrated. However, medical reports from the USCG did not indicate that any of
the Cuban nationals were treated for sunburns or dehydration. Medina stated that
he and Perez were going to take the Cuban nationals to the USCG, but the USCG
located them first. Medina indicated that neither he, Perez, nor Gato had any
relatives or friends among the Cuban nationals on the boat.
The PSI further explains that during a post-arrest statement, Perez identified
the other person from the boat as Medina and reported that they had asked Gato to
borrow the boat to go fishing. Perez explained that he had purchased fuel for the
boat with cash before departure, and that he and Medina purchased food prior to
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leaving but brought no additional food on the vessel because they planned to
return Saturday night. Perez stated they used ballyhoo as bait and nylon thread,
since they did not have any poles, and fished for six hours. When asked how the
Cuban nationals came aboard the boat, Perez explained he and Medina came upon
a sinking raft possibly made of metal and rubber containing the Cuban nationals.
Perez stated that he planned to take the Cuban nationals to the police once they
reached shore. Perez also indicated that neither he, Medina, nor Gato had any
friends or relatives in the group of Cubans.
The PSI also states that in an interview, Gato explained that he had loaned
his vessel to Medina so he could perform a tune up on the vessel. Gato asserted
that he did not know where Medina was storing the vessel or when he had last
used the vessel. He stated that Medina was allowed to use the vessel as he liked.
Gato also stated that he did not keep any fishing gear on board because he spear-
fishes.
On July 6, 2009, Perez and Medina jointly appeared for sentencing. The
court first addressed Medina’s objection to the enhancement for engaging in
conduct creating the risk of serious bodily injury. The court recognized that some
of the more aggravating circumstances that have been found in other cases did not
occur here, but stated that smuggling 34 passengers in a 32 foot boat with only 15
6
life vests across open seas in the middle of the night with no lights and no
navigational equipment is an invitation for disaster. Medina’s counsel agreed that
it is a recipe for disaster when you put people on board a boat with not enough life
vests and with more people than the rating capacity of the boat. The court
overruled Medina's objection and confirmed the PSI's conclusion3 that Medina’s
total offense level was 17 and his criminal history category was I. This resulted in
a sentencing guideline range of 24 to 30 months’ imprisonment.
Counsel for Medina requested a sentence at the low end of the guideline
range, stating that he was a 28 year-old man with no criminal history, had no
history of being at sea or being stopped by the USCG, and had come to the United
States in order to better financially support his wife and child in Cuba. Counsel
also noted that there is nothing in the PSI to suggest that Medina arrived illegally
to the United States, to which the district judge countered that there is nothing in
the PSI to suggest he arrived legally either. The district court noted several factors
3
The PSI set the base offense level for both Perez and Medina at level 12. No role
adjustment was recommended for either defendant. Six levels were added under U.S.S.G.
§ 2L1.1(b)(2)(B) because the offense involved the transporting or harboring of between 25 to 99
unlawful aliens. Two levels were added under U.S.S.G. § 2L1.1(b)(6) because the offense
intentionally or recklessly created a substantial risk of death or serious bodily injury to another
person. Three levels were subtracted under U.S.S.G. §§ 3E1.1(a) and 3E1.1(b) for acceptance of
responsibility and timely notifying authorities of their intention to plea guilty. The adjusted total
offense level was therefore 17. With no criminal history points for either defendant and a
criminal history category of I, the advisory guideline for imprisonment for both Perez and
Medina was 24 to 30 months.
7
that it considered important for sentencing: the USCG interdicted the vessel, the
vessel was overcrowded and had insufficient life vests, all the Cuban nationals
suffered from seasickness, one adult male was unconscious, it was unclear whether
Medina himself had come to the United States legally, and Medina had left behind
his wife and child in Cuba. The district court also stated that 18 U.S.C. § 3553requires the court to “consider the nature and circumstances of the offense.”
Further, the district court stated the sentence should “reflect the seriousness of the
offense, to promote respect for the law and to provide just punishment for the
offense to afford adequate deterrence for criminal conduct.” The district court
concluded that it was not satisfied that the guideline sentence was adequate to
provide deterrence and to protect the public from further crimes of the appellant,
and sentenced Medina to a 60-month term of imprisonment and two years of
supervised release.
Next the court addressed Perez’s objection seeking a reduction in his
offense level based on his claim that the offense was committed not for profit.
Perez testified that he went out in the boat because he was concerned that his
brother’s boat might be in trouble. He stated that his brother’s name was Edelvis
Leon Perez, one of the Cuban nationals identified in the indictment. Perez further
testified that his sole purpose was to save his brother, but when he found his
8
brother and the other passengers sinking, he had to pick up all the Cuban nationals
because he could not allow any people to drown. He testified that no one paid him
anything to make the trip and that he had never done anything like this before.
On cross-examination and re-direct, Perez stated that he originally told law
enforcement that he did not have any relatives on the boat because he didn’t want
to get his brother into trouble. Before Perez stepped down from the witness stand,
the court asked Perez’s counsel whether Perez came to the United States legally,
and his counsel responded that “he came on a raft in 2003.”
The district court found that Perez’s testimony was not credible. Also,
Perez gave at least two directly contradictory statements about how he came upon
the vessel, which “cast[ed] doubt on the truthfulness of his testimony” at the
sentencing hearing. The court found that Perez bore the burden to establish by a
preponderance of the evidence that the offense was not committed for profit, and
Perez failed to meet that burden. This finding confirmed the PSI guideline
calculation of a total offense level of 17 and criminal history category of I,
resulting in a guideline range of 24 to 30 months’ imprisonment.
Perez addressed the court and stated that he was repentant. Perez’s attorney
stated that Perez had been in the United States for six years, maintained steady
employment throughout that time, had never been involved in this type of activity
9
before, and did not intend to lead a life of criminal activity. Perez’s attorney noted
that the government had agreed to recommend a sentence at the low end of the
guidelines in the plea agreement and requested that the court impose a sentence of
24 months. The district court stated that Perez was similarly situated to Medina.
The offense characteristics included a dangerous trip across the Florida Straits in a
high speed go-fast boat that had an excess number of people and an inadequate
number of life preservers on the boat. The court also noted that Perez himself
came to the United States on a raft. The district court sentenced Perez to a 60-
month term of imprisonment and two years of supervised release.
DISCUSSION
We review a district court’s application of the sentencing guidelines to the
facts de novo and the district court’s factual findings for clear error. United States
v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006); United States v. Jordi, 418
F.3d 1212, 1214 (11th Cir. 2005). While the district court is no longer required to
sentence within the guidelines, it is obligated to calculate the guidelines correctly.
United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006).
I. Enhancement of Medina’s offense level by two levels under U.S.S.G.
§ 2L1.1(b)(6)
Medina argues that the district court erred when it overruled his objection to
10
the two level enhancement of his offense level for recklessly creating a substantial
risk of death or serious bodily injury under U.S.S.G. § 2L1.1. Medina asserts that
the government bears the burden of proof by a preponderance of the evidence for
an enhancement to his offense level, and the government presented no evidence
here.
As an initial matter, the government’s assertion that Medina abandoned his
challenge to the application of the two-level enhancement is incorrect. While
Medina’s counsel agreed that the facts presented “a recipe for, or an invitation for
disaster,” Medina did not specifically withdraw his objection so as to warrant this
Court to declare it is precluded from reviewing Medina’s objection. Cf. United
States v. Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (holding that defendant
affirmatively withdrew his objections to the PSI when the district court asked
defendant’s counsel twice, and the defendant himself, whether he wanted to
withdraw his objections).
Turning to the merits of the objection, U.S.S.G. § 2L1.1(b)(6) provides: “If
the offense involved intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person, increase by 2 levels . . . .” U.S.S.G.
§ 2L1.1(b)(6). The commentary elaborates that reckless conduct includes a wide
variety of conduct including carrying substantially more passengers than the rated
11
capacity of a motor vehicle or vessel or harboring persons in a crowded,
dangerous, or inhumane condition. Id. at n.5.
The district court may rely on uncontested factual statements in the PSI for
purposes of sentencing. United States v. Polar, 369 F.3d 1248, 1255 (11th Cir.
2004). Medina’s PSI contained numerous facts relevant to the issue at hand which
were not contested. There were more passengers than the boat’s capacity, there
was an insufficient number of personal flotation devices on the boat, and the boat
was traveling in rough seas at night without using any type of lighting or
navigational device. These facts alone are sufficient to establish that Medina’s
conduct recklessly created a substantial risk of death or serious bodily injury. See
United States v. Rodriguez-Lopez, 363 F.3d 1134, 1138 (11th Cir. 2004) (“We
find no material distinction between smugglers who transport aliens in motor
vehicles without providing them with adequate safety measures, and the present
case where Rodriguez-Lopez and Garcia-Santos operated a boat in a hazardous
manner while transporting aliens who were not wearing life jackets.”).
We find that the government met its burden to establish by a preponderance
of the evidence that the offense involved intentionally or recklessly creating a
substantial risk of death or serious bodily injury to another person. The district
12
court did not err when it enhanced Medina’s offense level by two levels under
U.S.S.G. § 2L1.1(b)(6).
II. Denial of Perez’s request for a three-level downward adjustment of his
offense level under U.S.S.G. § 2L1.1(b)(1)
Perez argues that the district court clearly erred when it denied his request
for a three-point downward adjustment pursuant to U.S.S.G. § 2L1.1(b)(1) because
he did not commit the offense for profit but instead went to rescue his brother at
sea. Perez asserts that while generally the defendant has the burden of proving the
applicability of guideline sections which would reduce the offense level, the
government bears the burden of proof here because the three-point decrease is not
based on a mitigating factor, it is based on the lack of an aggravating factor. Perez
contends that since the government did not produce any evidence regarding any
type of payment for the transportation, the district court clearly erred in rejecting
Perez's request for a three-level downward adjustment for committing the offense
not for profit.
U.S.S.G. § 2L1.1(b)(1) provides, “If (A) the offense was committed other
than for profit, or the offense involved the smuggling, transporting, or harboring
only of the defendant’s spouse or child . . . decrease by 3 levels.” U.S.S.G.
§ 2L1.1(b)(1). The commentary for the section states, “other than for profit means
13
that there was no payment or expectation of payment for the smuggling,
transporting, or harboring of any of the unlawful aliens.” Id. at n.1. Perez, not the
government, bears the burden of proof to show that U.S.S.G. § 2L1.1(b)(1) is
applicable to him and that his offense level should therefore be reduced. United
States v. Zaldivar, 615 F.3d 1346, 1352 (11th Cir. 2010) (holding that it is the
defendant’s burden to prove that the guidelines section which would reduce his
sentence for committing the offense other than for profit is applicable).
Perez’s testimony at the sentencing hearing that he made the trip to rescue
his brother contradicts the statement he made to officers after his arrest that he and
Medina had gone fishing that day and that he did not have any relatives on the
boat. The court was entitled to discredit his testimony. Additionally, the facts
suggest that the venture was undertaken for financial gain. The voyage was
extremely dangerous and expensive and the risk incurred by Perez upon
apprehension was great.
We conclude that the record supports the finding that Perez failed to meet
his burden to establish by a preponderance of the evidence that the offense was
committed other than for profit. The district court did not err when it denied Perez
the three-point downward reduction of his offense level.
14
III. Upward departure from the advisory sentencing guideline range;
reasonableness of the sentences
The final sentence imposed by a district court is reviewed for
reasonableness. United States v. Booker, 543 U.S. 220, 264 (2005); United States
v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). The district court must
impose a sentence that is both procedurally and substantively reasonable, which
this Court analyzes under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). This Court must consider the final sentence, in its
entirety, in light of the statutory factors to be considered in imposing a sentence
pursuant to 18 U.S.C. § 3553(a). United States v. Martin, 455 F.3d 1227, 1237
(11th Cir. 2006). “The party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both the record and
the factors in [18 U.S.C. §] 3553(a).” United States v. Thomas, 446 F.3d 1348,
1351 (11th Cir. 2006) (internal quotation marks and citation omitted).
Both Perez and Medina challenge the district court’s upward departure to 60
months’ imprisonment, claiming that the sentences are unreasonable and greater
than necessary to comply with the statutory sentencing goals. Perez asserts that
none of the factors listed by the district court justified a sentence of 60 months’
imprisonment when the guideline range was 24 to 30 months’ imprisonment.
15
Medina argues that the doubling of his maximum guideline sentence was far from
reasonable because the record is devoid of anything atypical about him or the
circumstances surrounding the commission of the crime to warrant an upward
departure. Medina asserts that he had zero criminal history, not even an arrest or a
traffic violation; he was only a crew member on the boat, as opposed to Perez,
who was the operator of the boat; and there were no aggravating factors such as
fleeing from the USCG. Both Perez and Medina argue that the district court could
not use the conduct that recklessly created a substantial risk of death or serious
bodily injury, such as the passengers’ seasickness, as a reason for both a two-level
increase in the offense level and a reason to apply an upward departure from the
sentencing guidelines.
A sentence may be procedurally unreasonable if the district court
improperly calculates the guideline range, treats the guidelines as mandatory, fails
to consider the appropriate statutory factors, selects a sentence based on erroneous
facts, or fails to explain the chosen sentence adequately. Gall v. United States,
552 U.S. 38, 51 (2007). The district court need not discuss or state each § 3553(a)
factor explicitly, but need only acknowledge that it has considered the defendant’s
arguments and the § 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). If a sentence is outside the guidelines range, this Court “may
16
consider the extent of the deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall v. United States, 552 U.S. 38, 51 (2007).
18 U.S.C. § 3553(a) states that the district court should impose a sentence
that reflects the seriousness of the offense, promotes respect for the law, provides
just punishment for the offense, deters criminal conduct, and protects the public
from future crimes of the defendant. 18 U.S.C. § 3553(a). The court must also
consider the following factors in determining a particular sentence: the nature and
circumstances of the offense and the history and characteristics of the defendant;
the need to reflect the seriousness of the offense, to promote respect for the law
and to provide just punishment for the offense; the need for deterrence; the need to
protect the public; the kinds of sentences available; and the Sentencing
Guidelines’ range. Id. In addition, the premise guiding all these factors is that the
sentence should be “sufficient, but not greater than necessary” to comply with its
enumerated goals. Id.In sentencing Perez and Medina, the district court stated it had considered
the advisory guidelines, statutory factors, PSIs, sentencing objections, sentencing
presentations, and arguments of counsel. The court stated that a sentence within
the guideline range was not sufficient to reflect the seriousness of the offense, to
17
deter similar criminal conduct, to protect the public, to promote respect for the
law, or to provide just punishment. In support of this statement, the court noted
the dangerous circumstances surrounding the offense, referencing the over-
capacity go-fast vessel, the inadequate number of life vests, the seasickness, the
dangers of the voyage, and the history and characteristics of each appellant. The
district court noted that Perez and Medina showed disrespect to law enforcement
by lying about their involvement in the offense.
Perez and Medina’s contention that the court could not consider the
seriousness of the offense because that was already accounted for by the two-level
enhancement is incorrect. One of the § 3553(a) factors that a court must consider
in sentencing is the circumstances of the offense; this includes the dangerousness
of the offense. 18 U.S.C. § 3553(a). The district court reasonably concluded that
an above-guideline sentence was appropriate because the offense involved putting
32 people in serious danger.
Medina’s contention that the district court did not adequately explain
Medina’s above-guidelines sentence also fails. The court identified facts upon
which it based the sentences, noted that it was to impose the sentences only after
considering the § 3553(a) factors, listed various factors that applied in this case,
and then explicitly stated that it was not satisfied that the guideline sentences were
18
adequate to provide deterrence to criminal conduct and to protect the public from
further crimes of the appellants. The district court therefore provided sufficient
explanation of its above-guidelines sentence to allow meaningful appellate review.
Perez and Medina have not shown that their sentences were substantively
unreasonable. Their willingness to engage in a large-scale, dangerous operation
involving transporting many individuals from Cuba reasonably supports the
district court’s conclusion that an upward adjustment in the sentence was needed
to deter Perez and Medina and protect the public from future crimes. The
sentences imposed by the district court were supported by a “significant
justification” as required by Gall v. United States, 552 U.S. 38, 50 (2007). It is
also relevant that the district court only sentenced Perez and Medina to half the
120 month statutory maximum for the conspiracy offense. The sentences were
“sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).
We conclude that the district court’s articulation of the core sentencing
considerations and the facts that support them provide significant justification for
the sentences imposed. Perez and Medina’s sentences were reasonable. The
district court’s decision to impose an upward variance to 60 months’ imprisonment
was not an abuse of discretion.
19
CONCLUSION
Perez’s and Medina’s sentences are AFFIRMED.
20