United States v. Jorge Alberto Del Cid ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 8, 2007
No. 07-12594 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00064-CR-A-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ALBERTO DEL CID,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 8, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jorge Alberto Del Cid appeals his 24-month sentence imposed after he pled
guilty to reentering the United States after having been previously deported,
without obtaining the permission of the Secretary of Homeland Security or the
Attorney General, in violation of 8 U.S.C. § 1326(a). Del Cid contends his
sentence is both procedurally and substantively unreasonable. He contends the
sentence is procedurally unreasonable because the district court single-mindedly
focused on the goal of deterrence to the detriment of all of the other 18 U.S.C.
§ 3553(a) factors. Del Cid asserts the sentence is substantively unreasonable
because it is four times the high end of his Guidelines range of zero to six months,
at the statutory maximum, and far greater than necessary to accomplish the goals of
sentencing.
After the district court has correctly calculated the Guidelines range, we
review the final sentence for reasonableness. United States v. Williams, 435 F.3d
1350, 1353 (11th Cir. 2006). “After [United States v. Booker, 125 S. Ct. 738(2005)], a sentence may be reviewed for procedural or substantive
unreasonableness. A sentence may be unreasonable if it is the product of a
procedure that does not follow Booker’s requirements, regardless of the actual
sentence. Additionally, a sentence may be substantively unreasonable, regardless
of the procedure used.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
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2006). A defendant challenging his sentence bears the burden of establishing that
it is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“When reviewing a sentence for reasonableness, we must evaluate whether
the sentence achieves the purposes of sentencing as stated in 18 U.S.C. § 3553(a).”
United States v. Williams, 456 F.3d 1353, 1360 (11th Cir. 2006), cert. dismissed,
127 S. Ct. 3040 (2007). The factors presented in § 3553(a) 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.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). The weight to be accorded
any given statutory factor is a matter committed to the sound discretion of the
district court. United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006) .
In United States v. Crisp, 454 F.3d 1285, 1290-92 (11th Cir. 2006), we
found a five-hour term of imprisonment was unreasonable. Although the district
court stated “the sentence reflects the seriousness of the offense, provides just
punishment, affords adequate deterrence and adequately protects the public,” we
noted the district court’s primary concern at sentencing was restitution, and the
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brief sentence was imposed so the defendant could earn money to make restitution
payments. Id. at 1290. We noted “a district court’s ‘unjustified reliance upon any
one [§ 3553(a)] factor is a symptom of an unreasonable sentence,’” and concluded
that “[t]he district court focused single-mindedly on the goal of restitution to the
detriment of all of the other sentencing factors. An unreasonable approach
produced an unreasonable sentence.” Id. at 1292.
Del Cid’s sentence was not procedurally unreasonable because the district
court did not focus single-mindedly on one of the sentencing factors to the
detriment of all of the others. The district court not only mentioned, but discussed,
the Guidelines range, the nature and circumstances of the offense, the history and
characteristics of the defendant, the seriousness of the offense, the need to promote
respect for the law, specific and general deterrence, and the need to protect the
public. See 18 U.S.C. § 3553(a). Additionally, the district court’s sentence did not
operate to the detriment of the sentencing factors. The sentence in Crisp did not
serve the non-restitution sentencing factors because, by eliminating any real
incarceration in favor of maximizing the defendant’s ability to pay restitution, it
did “not reflect the seriousness of the crime, promote respect for the law, and
provide just punishment for the offense, as § 3553(a)(2)(A) requires, nor [did] it
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afford adequate deterrence to criminal conduct, as § 3553(a)(2)(B) requires.” Id.
By contrast, Del Cid’s sentence actually promoted these sentencing factors.
Further, Del Cid’s sentence was not substantively unreasonable. The district
court considered the § 3553(a) factors, and found the Guidelines range did not
produce a sentence sufficient to achieve the statutory purposes of sentencing.
While Del Cid’s sentence was four times the high end of the Guidelines range, any
upward variance from an extremely short Guidelines range will necessarily be a
proportionally large increase. In light of these considerations, the district court’s
determination that a two-year sentence was required was not unreasonable.
AFFIRMED.
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