United States v. Gerson Paul Fernandez Merchan ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14035 OCTOBER 31, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cr-20910-MGC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GERSON PAUL FERNANDEZ MERCHAN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 31, 2011)
Before EDMONDSON, HULL and BLACK, Circuit Judges.
PER CURIAM:
Gerson Merchan appeals his 21-month sentence imposed for making a false
statement on a United States passport application, 28 U.S.C. § 1542. No
reversible error has been shown; we affirm.1
In 2002, Merchan, a native and citizen of Ecuador, used another person’s
identification to apply for and receive a United States passport. He then used this
false passport to obtain a Florida driver’s license in that other person’s name.
Merchan was arrested by Florida authorities in June 2008 and convicted on state
charges of unauthorized use or possession of a fictitious driver’s license. In June
2009, he was transferred into the custody of Immigration and Customs
Enforcement (“ICE”) for removal proceedings. A few months later, he was
transferred into federal custody pursuant to a warrant in this case; and his removal
proceedings were suspended.
On appeal, Merchan argues that the district court erred in calculating his
criminal history score. First, we reject his argument that the court erred by
including his false driver’s license conviction because the record demonstrates that
the court did not, in fact, include that conviction in computing his criminal history
score. We also reject -- as foreclosed by this Court’s precedent -- Merchan’s
argument that the court erred by scoring his 2005 and 2007 convictions, which
1
Although Merchan was released from federal custody in April 2011, his appeal is not
moot because he is still serving a term of five years’ supervised release. See Dawson v. Scott, 50
F.3d 884, 886 n.2 (11th Cir. 1995).
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occurred after he committed passport fraud in 2002.2 See United States v.
Laihben, 167 F.3d 1364, 1365-66 (11th Cir. 1999) (concluding that, in calculating
the defendant’s guidelines range, it was proper for the district court to include a
conviction that occurred after the commission of, but before sentencing on, his
current offense).
Merchan also argues that his sentence substantively is unreasonable because
the court failed to consider properly or give him sufficient credit for the time he
served in ICE custody.3 We evaluate the substantive reasonableness of a sentence
under a deferential abuse-of-discretion standard. Gall v. United States, 128 S.Ct.
586, 597 (2007). The party challenging the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both the record and
the section 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). We will not reverse unless we are “left with the definite and firm
2
Merchan concedes that this argument is contrary to this Court’s decision in Laihben but
preserves the argument because the circuit courts are split on this issue.
3
Merchan also argues that the court should have credited him for the time he served in
state custody, beginning in June 2008. An alleged error, however, cannot serve as grounds for
reversal if the appealing party “induces or invites the district court into making [the alleged]
error.” United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Because Merchan
expressly requested credit for time served beginning only in June 2009 -- when he was in ICE
custody -- he is precluded from challenging the court’s failure to credit him for time served
before that date. In any event, his argument fails because we conclude that his sentence is
substantively reasonable.
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conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008).
We conclude that Merchan failed to satisfy his burden of proof. His 21-
month sentence is within the court’s calculated advisory guideline sentence range
of 15 to 21 months’ imprisonment, and we ordinarily expect such a sentence to be
reasonable. See Talley, 431 F.3d at 787-88 (concluding that, although not per se
reasonable, “ordinarily we would expect a sentence within the Guidelines range to
be reasonable”). His sentence is also well below the ten-year statutory maximum
sentence for his offense. See United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008) (concluding that the reasonableness of a sentence may also be
indicated when the sentence imposed was well below the statutory maximum
sentence). In addition, the record demonstrates that the court considered
Merchan’s argument and concluded that giving him credit for time served in ICE
custody was inappropriate in the light of the 3553(a) factors. In doing so, the
court discussed the nature and circumstances of the offense, Merchan’s history and
characteristics, and the need to reflect the seriousness of the offense, promote
respect for the law, and deter similar conduct. See 18 U.S.C. § 3553(a)(1), (2)(A),
4
(B). Based on this record, we are not convinced that the district court committed a
clear error of judgment when it imposed Merchan’s sentence.
AFFIRMED.
5