United States v. Paulo Henrique Hilel ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16095 ELEVENTH CIRCUIT
NOVEMBER 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-80114-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAULO HENRIQUE HILEL,
a.k.a. Lilito,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 10, 2009)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
A Southern District of Florida jury convicted appellant, Paulo Henrique
Hilel, of conspiring between June 1 and 4, 2007, to smuggle aliens into the United
States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and the district court
sentenced him to prison for 60 months. He appeals his conviction and sentence.
After considering the arguments he has presented, we affirm.
I.
Appellant challenges his conviction on two grounds (1) the district court
erred in overruling his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986), objection to the prosecution’s motive for striking the only
Portuguese-speaking panel member from the venire; (2) the evidence was
insufficient to convict him of the charged conspiracy. We consider these points in
turn.
A.
Appellant contends that the district court erred in failing to conduct a Batson
inquiry in response to his objection to the Government’s use of a peremptory
challenge to remove a Portuguese-speaking individual from the venire panel. He
says that there was an independent and clear showing of prejudice in the
prosecution’s decision to strike the individual, who was the only venire member
representing the same “ethno-centric constituency” as his.
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We review the resolution of a Batson challenge, “giv[ing] great deference to
a district court’s finding as to the existence of a prima facie case. De novo review
is inappropriate.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1039 (11th Cir.
2005) (quotation omitted). As the district court’s determination of the reason for a
juror’s dismissal is a finding of fact, we will not overturn it “unless it is clearly
erroneous or appears to have been guided by improper principles of law.” Id.(quotation omitted).
“Purposeful racial discrimination in selection of the venire violates a
defendant’s right to equal protection.” Batson, 476 U.S. at 86, 106 S.Ct. at 1717.
Under Batson, “the district court must determine whether the party challenging the
peremptory strikes has established a prima facie case of discrimination by
establishing facts sufficient to support an inference of racial discrimination.”
Ochoa-Vasquez, 428 F.3d at 1038 (citations and quotation omitted). “Our
precedent makes clear that the establishment of a prima facie case is an absolute
precondition to further inquiry into the motivation behind the challenged strike.”
Id. (quotation omitted). “Batson . . . offere[s] two examples of circumstances that
may support a prima facie case of racial discrimination: (1) engaging in a pattern of
strikes against venire members of one race, or (2) questions or statements during
voir dire or in exercising challenges that suggest a discriminatory purpose.” Id.
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(quotations omitted). A moving party is required to present evidence other than
the bare fact of a juror’s removal “and the absence of an obvious valid reason for
the removal” to demonstrate a prima facie case of discrimination. United States v.
Allison, 908 F.2d 1531, 1538 (11 Cir. 1990) (quotation omitted).
We discern no error in the district court’s disposition of appellant’s Batson
objection without inquiring into the prosecutor’s motive for striking the
Portuguese-speaking panel member from the venire panel because appellant failed
to establish a prima facie case of discrimination. We therefore reject his Batson
argument, and proceed to his sufficiency-of-the-evidence challenge.
B.
Appellant contends that the evidence was insufficient to make out a violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I) because it consisted primarily of the
uncorroborated and incredible testimony of his co-conspirators, namely Christian
Bastos and Valdo Cesar Dos Santos, Jr. Section 1324 provides, in relevant part,
that it is a federal offense for “[a]ny person” to engage in a conspiracy to
“encourage[ ] or induce[ ] an alien to come to, enter, or reside in the United States,
knowing or in reckless disregard of the fact that such coming to, entry, or residence
is or will be in violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iv), (v)(I). To prove
such a conspiracy, the prosecution must show: “(1) that an agreement existed
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between two or more persons to commit a crime; (2) that the defendant knowingly
and voluntarily joined or participated in the conspiracy; and (3) a conspirator
performed an overt act in furtherance of the agreement.” United States v. Ndiaye,
434 F.3d 1270, 1294 (11th Cir. 2006). The existence of a conspiracy may be
proven by circumstantial evidence. Id. “[T]he defendant’s knowledge of and
membership in the conspiracy may be proven by acts on his part which furthered
the goal of the conspiracy.” United States v. Cross, 928 F.2d 1030, 1042 (11th Cir.
1991).
We are not persuaded by appellant’s argument that the testimony of Bastos
and Santos was uncorroborated and incredible. He ignores the fact that the
prosecution presented evidence that fully supported the testimony of these two co-
conspirators. Government databases recorded appellant’s frequent trips to the
Bahamas, the Dominican Republic, and Brazil. ICE databases showed that
appellant had flown out of the Bahamas to the Ft. Lauderdale, Florida, airport on
January 30, 2007, without any record that he had flown to the Bahamas. Bastos
testified that his first smuggling trip with appellant had occurred on January 30,
2007, during which they picked up Brazilian nationals in Freeport, Bahamas, and
that appellant returned to Florida by airplane. Both Bastos and Santos confirmed
that appellant never returned to Florida on a boat transporting the aliens. The
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Government also produced a receipt from Sea Tow, the company that assisted
Bastos when the “Kodi Bear” malfunctioned at sea, to support his testimony that a
smuggling trip took place on January 30, 2007. Santos testified that appellant
traveled frequently to the Bahamas, Brazil, and the Dominican Republic to plan the
trips and in preparation for the Brazilians to land in the Bahamas without
interference by Bahamian immigration authorities. Appellant’s flight records
confirmed that testimony. Governmental records also confirmed Santos’s
testimony that on June 5, 2007, the day after Bastos was interdicted by the Coast
Guard and the charged conspiracy was aborted, appellant flew from Bimini to Ft.
Lauderdale using a variation of his name and a false passport number. The records
also confirmed Bastos’ testimony that appellant had traveled with him, Santos, and
Marcos Ases to the Bahamas to pick up the aliens and returned to Florida by
airplane. In sum, the evidence of appellant’s involvement in the charged
conspiracy was overwhelming.
II.
Appellant contends that his sentence is substantively unreasonable, in that it
represents a significant upward variance from the presumptive Guidelines sentence
range, that it was supported by uncorroborated testimony, and that it resulted in an
unwarranted sentencing disparity.
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We review the sentence imposed by the district court for reasonableness.
United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005). Reasonableness
review requires the application of an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, __, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). We
must first ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an explanation for any
deviation from the Guidelines range.
Id. at __, 128 S.Ct. at 597. If the district court’s decision is procedurally
reasonable, our analysis then turns to the substantive reasonableness of the
sentence. Id.“In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the [18
U.S.C.] § 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th
Cir. 2006). “We may not apply a presumption of unreasonableness where a
sentence is outside of the Guidelines range, and we must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of
the variance.” United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008)
(quotations omitted). Comparing the sentence imposed against the statutory
maximum sentence is one indication of reasonableness. United States v. Valnor,
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451 F.3d 744, 751-52 (11th Cir. 2006). However, we are mindful of the fact that
“a sentence can be unreasonable . . . if the district court’s selection of the sentence
was substantially affected by its consideration of impermissible factors.” United
States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), abrogated on other
grounds by Kimbrough v. United States, 552 U.S. 85 (2007).
Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection,” namely to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from future crimes of the defendant, and provide the
defendant with needed educational or vocational training or medical care. See 18
U.S.C. § 3553(a)(2). The sentencing 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 kinds of sentences
available, the sentencing guidelines range, the pertinent policy statements of the
Sentencing Commission, the need to avoid unwanted sentencing disparities, and
the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
The sentence range prescribed by the Guidelines called for imprisonment
from 30 to 37 months. The court imposed a sentence of 60 months, an upward
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variance. We find that the court’s decision to impose the variance was supported
amply by its explicit consideration of many of the § 3553(a) factors, especially the
fact that appellant had been involved in alien smuggling for a long period of time.
For the foregoing reasons, appellant’s conviction and sentence are
AFFIRMED.
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