United States v. Rubin Casimir , 351 F. App'x 345 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12432 ELEVENTH CIRCUIT
OCTOBER 22, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-60275-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBIN CASIMIR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 22, 2009)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Rubin Casimir appeals his 41-month sentence imposed after he pled guilty to
illegally re-entering the United States after having been previously deported as an
aggravated felon, in violation of 8 U.S.C. § 1326(a) and (b)(2). After review, we
affirm.
I. BACKGROUND
In 2000, Casimir, a Haitian citizen, was deported from the United States
after being convicted in South Carolina of distribution of crack cocaine and
receiving a six-year sentence. In 2008, immigration officials detained Casimir
when he arrived at Fort Lauderdale International Airport on a flight from Haiti.
Casimir admitted that the lawful permanent resident card and Haitian passport he
presented to the officials actually belonged to his brother.
Casimir’s presentence investigation report (“PSI”) assigned a base offense
level of 8, pursuant to U.S.S.G. § 2L1.2(a), and a 16-level enhancement for
Casimir’s previous aggravated felony conviction, pursuant to § 2L1.2(b)(1)(A)(i).
After a 3-point reduction for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1, Casimir’s total offense level was 21. With a criminal history category of
II, Casimir’s resulting advisory guidelines range was 41 to 51 months’
imprisonment. Casimir did not object to the PSI’s factual statements or guidelines
calculations.
At sentencing, the district court confirmed the guidelines calculations and
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the resulting advisory guidelines range of 41 to 51 months with the parties.
Casimir explicitly admitted the South Carolina drug trafficking conviction.
Casimir asked the district court to impose a sentence below the advisory guidelines
range. In mitigation, Casimir stated that he borrowed money to pay a ransom after
his two-year-old son was kidnapped in Haiti. In support, Casimir submitted a
handwritten copy of a Haitian police report. Casimir claimed that he had remained
in Haiti after his 2000 deportation and attempted to enter the United States in 2008
only after his son was kidnapped and he needed to find employment to repay his
lenders. Casimir pointed out that he had seven children to support and that his
wife was pregnant and unable to work.
The government argued that Casimir’s kidnapping claim was a fabrication.
The government presented a copy of Casimir’s sworn statement to immigration
officials after his arrest at Ft. Lauderdale Airport . In his statement Casimir
averred, inter alia, that (1) he initially re-entered the United States in the summer of
2007 by a cargo ship and worked at a farm picking fruit and at a photography
studio, and (2) in 2008 he used his brother’s passport and permanent resident card
to return to the United States to see a doctor and find a job. Casimir’s statement
did not mention his son’s kidnapping.
The district court stated that it had considered the 18 U.S.C. § 3553(a)
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factors. Regarding the nature and circumstances of the offense, the district court
stated that it was difficult to determine whether the kidnapping Casimir described
actually occurred, but that even assuming it took place, it did not justify Casimir’s
offense. The district court concluded that, after being deported, Casimir returned
to the United States in 2007 and again in 2008 for economic reasons. The district
court explained that his sentence needed to reflect the seriousness of the offense,
promote respect for the law and deter others from trying to illegally reenter the
United States. The district court also emphasized Casimir’s previous drug
trafficking conviction. The district court concluded that a sentence within the
advisory guidelines range was appropriate and imposed a 41-month sentence, at the
low end of that range. Casimir filed this appeal.
II. DISCUSSION
A. Reasonableness of 41-month Sentence
Casimir argues that his 41-month sentence is unreasonable. We review the
reasonableness of a sentence for abuse of discretion using a two-step process.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We look first at
whether the district court committed any significant procedural error and then at
whether the sentence is substantively reasonable under the totality of the
circumstances. Id. The party challenging the sentence bears the burden to show it
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is unreasonable in light of the record and the § 3553(a) factors. United States v.
Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).1 We ordinarily expect that a
sentence within the advisory guidelines range will be reasonable. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Here, the district court did not commit a procedural sentencing error. The
court explicitly stated that it considered the § 3553(a) factors and discussed several
of those factors on the record. See United States v. Smith, 568 F.3d 923, 927 (11th
Cir. 2009) (“While the district court must consider the § 3553(a) factors, it
commits no reversible error by failing to articulate specifically the applicability – if
any – of each of the section 3553(a) factors, as long as the record demonstrates that
the pertinent factors were taken into account by the district court.” (quotation
marks omitted)). The district court also explicitly addressed Casimir’s mitigation
arguments based on his son’s kidnapping. Accordingly, the district court’s
sentence is procedurally reasonable.
Casimir has not shown that his 41-month sentence, at the low end of the
1
The § 3553(a) factors include: (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; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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advisory guidelines range and well below the statutory maximum of twenty years’
imprisonment, is substantively unreasonable. Contrary to Casimir’s assertions, the
district court did not rely solely on the advisory guidelines range in arriving at an
appropriate sentence. The district court explicitly stated that it considered all the
§ 3553(a) factors and discussed several of them, including the nature and
circumstances of the offense, Casimir’s history and the need to afford deterrence.
Additionally, we reject Casimir’s argument that the application of the 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) created an unwarranted
sentencing disparity. Section 2L1.2(b)(1)(A) takes into account differences
between prior convictions by placing them along “a graduated sentencing
enhancement scheme.” United States v. Ortega, 358 F.3d 1278, 1280 (11th Cir.
2003) (citing U.S.S.G. App. C amend. 632); see also U.S.S.G. § 2L1.2(b)(1)(A)-
(E) (providing for offense levels ranging from 4 levels to 16 levels depending upon
the type of prior conviction). Furthermore, the Sentencing Commission
“determined that a drug trafficking crime for which the sentence exceeded thirteen
months was serious enough to warrant a sixteen level enhancement.” Ortega, 358
F.3d at 1280; see also U.S.S.G. § 2L1.2(b)(1)(A)(i). Thus, we cannot say the 16-
level enhancement for Casimir’s drug trafficking conviction created an
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“unwarranted” sentencing disparity requiring a downward variance.2
Casimir contends that the use of his prior drug trafficking conviction to
determine both his offense level and his criminal history category, under U.S.S.G.
§§ 2L1.2(b)(1)(A) and 4A1.1, respectively, rendered his sentence unreasonable.
We disagree. The Sentencing Commission intended prior felony convictions to
count in determining both the criminal history category and the offense level under
§ 2L1.2. See U.S.S.G. § 2L1.2 cmt. n.6 (“A conviction taken into account under
subsection (b)(1) is not excluded from consideration of whether that conviction
receives criminal history points.”). Further, these two guidelines provisions serve
different purposes. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir.
1992) (explaining that the criminal history category serves “to punish likely
recidivists more severely,” and § 2L1.2(b)(1)(A) serves “to deter aliens who have
been convicted of a felony from re-entering the United States”). As a result, the
district court’s use of Casimir’s prior drug trafficking conviction to compute his
criminal history score and his offense level did not render Casimir’s sentence
unreasonable.
2
Casimir’s argument that his sentence is unreasonable because the district court failed to
take into account the availability of “fast track” early disposition programs in other districts is
foreclosed by our precedent. See United States v. Vega-Castillo, 540 F.3d 1235, 1238-39 (11th
Cir. 2008), cert. denied, 129 S. Ct. 2825 (2009) (concluding that district courts are prohibited
from considering the disparities created by “fast track” programs in deciding whether to impose
a downward variance).
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B. Fifth and Sixth Amendment
Casimir also argues that the district court violated his Fifth and Sixth
Amendment rights when it enhanced his sentence based on the prior drug
trafficking conviction, which was not charged in the indictment or proven to a
jury.3 As Casimir acknowledges, his argument is foreclosed by binding precedent.
See Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998);
United States v. Greer, 440 F.3d 1267, 1274-75 (11th Cir. 2006). We also note
that Casimir not only failed to object to the portion of the PSI setting forth his prior
drug trafficking conviction, but also expressly admitted the conviction at the
sentencing hearing. See Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct.
2531, 2537 (2004) (noting that sentencing courts may enhance a sentence based on
facts admitted by the defendant); United States v. Shelton, 400 F.3d 1325, 1330
(11th Cir. 2005) (stating that the failure to object to the PSI constitutes an
admission of the facts contained in the PSI). Consequently, the district court did
not err, much less plainly err, in enhancing Casimir’s sentence based on the prior
drug trafficking conviction.
AFFIRMED.
3
Because Casimir failed to raise this constitutional challenge to his sentence in the district
court, we review only for plain error. United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315
(11th Cir. 2005).
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