United States v. Emilio Vazquez ( 2019 )


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  •                Case: 18-13411    Date Filed: 07/02/2019   Page: 1 of 7
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-13411
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:18-cr-20076-RNS-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    EMILIO VAZQUEZ,
    a.k.a. Emilio Serralles,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (July 2, 2019)
    Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Emilio Vazquez appeals the procedural and substantive reasonableness of his
    120-month sentence—33 months above the top end of his guideline range—
    Case: 18-13411      Date Filed: 07/02/2019    Page: 2 of 7
    imposed after pleading guilty to 1 count of wire fraud, in violation of 18 U.S.C.
    § 1343. On appeal, he argues that his sentence is procedurally unreasonable
    because the district court erred by using the statutory maximum sentence of 20
    years’ imprisonment as the “starting point” for fashioning his sentence. He also
    argues that the sentence is substantively unreasonable.
    We review the reasonableness of a sentence under a deferential
    abuse-of-discretion standard. Gall v. United States, 
    552 U.S. 38
    , 41 (2007). We
    review for plain error a procedural challenge raised for the first time on appeal.
    United States v. Vandergrift, 
    754 F.3d 1303
    , 1307 (11th Cir. 2014). When
    analyzing a claim under the plain error standard, we will look to see (1) whether
    the district court committed an error, (2) that is plain, and (3) that affects
    substantial rights, and if so, will reverse only if (4) the error seriously affects the
    fairness, integrity, or public reputation of judicial proceedings. United States v.
    Lejarde-Rada, 
    319 F.3d 1288
    , 1290 (11th Cir. 2003). Plain error cannot be
    established where the explicit language of a statute or rule does not resolve an
    issue and there is no precedent from the Supreme Court or our Court directly
    resolving it. 
    Id. at 1291.
    The third prong is satisfied when the defendant establishes “a reasonable
    probability that, but for the error, the outcome of the proceedings would have been
    different.” United States v. Henderson, 
    409 F.3d 1293
    , 1308 (11th Cir. 2005)
    2
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    (quotation marks omitted). The Supreme Court has held that, “[i]n most cases, a
    defendant who has shown that the district court mistakenly deemed applicable an
    incorrect, higher Guidelines range has demonstrated a reasonable probability of a
    different outcome.” Molina-Martinez v. United States, 
    136 S. Ct. 1338
    , 1346
    (2016). The Court cautioned that there could be some instances when, despite the
    application of an erroneous Guidelines range, a reasonable probability did not exist
    because the sentencing court’s explanation made it clear that the court based its
    sentence on factors independent of the Guidelines. 
    Id. at 1346-47.
    However,
    where the record is silent as to what the district court might have done had it
    considered the correct Guidelines range, the court’s reliance on an incorrect range
    in most instances will suffice to show an effect on the defendant’s substantial
    rights. 
    Id. at 1347.
    The Supreme Court has held that, in the ordinary case, the
    failure to correct a plain guidelines error that affects a defendant’s substantial
    rights will seriously affect the fairness, integrity, and public reputation of judicial
    proceedings. Rosales-Mireles v. United States, 
    138 S. Ct. 1897
    , 1908 (2018).
    To preserve an objection for appeal, the defendant “must raise that point in
    such clear and simple language” that it “inform[s] the district court of the legal
    basis for the objection.” United States v. Massey, 
    443 F.3d 814
    , 819 (11th Cir.
    2006) (quotation marks omitted). In United States v. Carpenter, we held that the
    defense counsel’s statement that it objected “to the substantive and procedural
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    reasonableness of the sentence” preserved the defendant’s objections that the
    district court procedurally erred by failing to consider a number of § 3553(a)
    factors, treated the Guidelines as presumptively reasonable, and failed to provide a
    sufficient explanation for rejecting his argument for downward variance. 
    803 F.3d 1224
    , 1232-34. Nevertheless, we found that the defendant’s objection was
    insufficient to preserve his challenge to the special conditions of his supervised
    release. 
    Id. at 1237-38.
    In United States v. Maurice, we held that the defendant’s
    objection at sentencing “as to the departure” was insufficient to preserve his three
    specific objections to the departure. 
    69 F.3d 1553
    , 1556-57 (11th Cir. 1999)
    (quotation marks omitted); see also United States v. Cosgrove, 
    73 F.3d 297
    , 303
    (11th Cir. 1996) (holding that the defendant’s objection at sentencing that it was
    “unfair” to inform him at sentencing about the sentencing policy rather than at the
    plea stage did not amount to an objection that the sentencing policy violated the
    defendant’s due process rights) (quotation marks omitted).
    We use a two-step process to review a sentence’s reasonableness. 
    Gall, 552 U.S. at 51
    . First, we must confirm “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.” 
    Id. The district
    court “must treat the
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    Guidelines as the starting point and the initial benchmark” in selecting a sentence.
    Kimbrough v. United States, 
    552 U.S. 85
    , 108 (2007) (quotation marks omitted);
    see also 
    Molina-Martinez, 136 S. Ct. at 1346
    (providing that “the Guidelines are
    not only the starting point for most federal sentencing proceedings but also the
    lodestar”). “[D]istrict courts must begin their analysis with the Guidelines and
    remain cognizant of them throughout the sentencing process.” Peugh v. United
    States, 
    569 U.S. 530
    , 541 (2013) (quotation marks omitted). “Even if the
    sentencing judge sees a reason to vary from the Guidelines, if the judge uses the
    sentencing range as the beginning point to explain the decision to deviate from it,
    then the Guidelines are in a real sense the basis for the sentence.” 
    Id. at 542
    (quotation marks omitted). The district court is not required to state on the record
    that it has explicitly considered each of the § 3553(a) factors or discuss each of
    them. United States v. Sarras, 
    575 F.3d 1191
    , 1219 (11th Cir. 2009). After we
    determines that no procedural error occurred, we then examine the substantive
    reasonableness of the sentence. 
    Gall, 552 U.S. at 51
    .
    As an initial matter, Vazquez’s objection to the way in which the sentence
    was pronounced and the court’s sentencing rulings was insufficient to preserve his
    objection that the district court erred by using the statutory maximum sentence as
    the “starting point” for its sentencing determination. See 
    Maurice, 69 F.3d at 5
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    1556-57; 
    Cosgrove, 73 F.3d at 303
    . Accordingly, we review for plain error. See
    
    Vandergrift, 754 F.3d at 1307
    .
    The government concedes the district court committed an error and that the
    error was obvious. See 
    Lejarde-Rada, 319 F.3d at 1290
    . However, the
    government argues that Vazquez has not satisfied the third prong of the plain error
    standard. We disagree. Vazquez has established a reasonable probability that, but
    for the error, the outcome of the proceedings would have been different. See
    
    Henderson, 409 F.3d at 1308
    . Because the record is silent as to what the district
    court would have done had it considered both the aggravating and mitigating
    factors in reference to the advisory guideline range, Vazquez has shown that the
    error affects his substantial rights. See 
    Molina-Martinez, 136 S. Ct. at 1347
    ;
    
    Lejarde-Rada, 319 F.3d at 1290
    . Finally, the error satisfies the fourth plain-error
    prong because failure to correct a plain guidelines error that affects a defendant’s
    substantial rights will ordinarily seriously affect the fairness, integrity, and public
    reputation of judicial proceeding. See 
    Rosales-Mireles, 138 S. Ct. at 1908
    . And
    because there is nothing in the instant record to distinguish this case from the
    ordinary case in this regard, we conclude that Vazquez has satisfied this fourth
    prong of the plain error standard. 
    Id. at 1909
    & n.4. Because the district court
    plainly procedurally erred in sentencing Vazquez, we do not reach the substantive
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    reasonableness of his sentence. Accordingly, we vacate and remand for
    resentencing.
    VACATED AND REMANDED FOR RESENTENCING.
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