United States v. Wanda Tirado , 270 F. App'x 919 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12268 March 25, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 99-08125-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WANDA TIRADO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2008)
Before ANDERSON, CARNES and HULL, Circuit Judges.
PER CURIAM:
Wanda Tirado appeals her 262-month sentence, following resentencing, for
one count of conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h), and four counts of money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B). Tirado contends that the district court erred by: (1) failing to
consider post-sentence rehabilitative evidence during her resentencing; and (2)
imposing a sentence much harsher than many other defendants convicted of fraud-
related crimes.
Tirado first contends that the district court erred by failing to consider
evidence of her rehabilitative efforts after her initial sentence hearing. Tirado
admits that this argument is inconsistent with our holding in United States v.
Lorenzo, 471 F.3d 1219 (11th Cir. 2006), but argues that Lorenzo was incorrectly
decided and should be overruled.
We review de novo whether a district court may consider a certain
sentencing factor. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
Under our prior panel precedent rule, this panel cannot overrule another panel’s
prior holding. United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998)
(en banc).
In Lorenzo, the defendant’s original sentence had been vacated, and by the
time of his resentence hearing, he had been released from prison. Lorenzo, 471
F.3d at 1220. At his resentence hearing, the district court sentenced him to a more
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lenient sentence because his behavior following his release from prison showed
that he responded positively to supervision and was maintaining a job. Id. We
held that evidence of a defendant’s post-sentencing rehabilitative conduct did not
fall within any of the 18 U.S.C. § 3553(a) factors. Id. at 1221. Moreover, this
Court stated that consideration of such evidence would contravene two of the
factors by: (1) creating sentencing disparities with defendants who do not get the
opportunity to be resentenced; and (2) violating the Sentencing Commission’s
policy statement that post-sentence rehabilitative conduct is not an appropriate
basis for a downward departure at a resentence hearing. Id. Because the district
court “did not rely on a § 3553 factor and instead directly contravened two factors
under § 3553,” we concluded that the sentence was unreasonable and remanded the
case for resentencing. Id.
Under the prior panel precedent rule, we cannot overturn Lorenzo’s holding
that evidence of post-sentence rehabilitative conduct is an impermissible factor for
consideration during resentencing, and that consideration of such evidence results
in an unreasonable sentence. Steele, 147 F.3d at 1317–18. Therefore, under the
law of this circuit, the district court did not err by refusing to consider Tirado’s
post-sentence rehabilitative evidence.
Alternatively, at her resentence hearing, the district court stated that even if
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it had considered Tirado’s post-sentence rehabilitative evidence, it still would have
imposed the same sentence. In United States v. Keene, 470 F.3d 1347 (11th Cir.
2006), we stated that “‘[t]he Supreme Court and this Court have long recognized
that it is not necessary to decide guidelines issues or remand cases for new
sentence proceedings where the guidelines error, if any, did not affect the
sentence.’” Id. at 1349 (citation omitted). Because the district court explicitly
stated that it would have imposed the same sentence even if it had considered
Tirado’s post-sentence rehabilitative evidence, any error that it committed by
failing to consider that evidence is harmless. See id.
Tirado next contends that her 262-month sentence is unreasonable because
the district court failed to consider that it was it was significantly longer than the
sentences received by one of her co-defendants and many other individuals
convicted of fraud in this circuit. We review the sentence imposed by the district
court for reasonableness. Clay, 483 F.3d at 743. “Our review for reasonableness is
deferential, and the party challenging the sentence has the burden of establishing
unreasonableness.” Id.
“[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir.
2006). When reviewing a sentence for procedural reasonableness, we must
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“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 [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S. ___, 128 S. Ct. 586,
597 (2007). “Additionally, a sentence may be substantively unreasonable,
regardless of the procedure used.” Hunt, 459 F.3d at 1182 n.3.
“The sentencing judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S.___, 127 S. Ct. 2456, 2468 (2007). Generally, when sentencing inside the
advisory guideline range, the district court is required neither to state explicitly that
it has considered each of the § 3553(a) factors in open court, nor to give a lengthy
explanation for its sentence. See United States v. Agbai, 497 F.3d 1226, 1230
(11th Cir. 2007) (citing Rita, 551 U.S. at___, 127 S. Ct. at 2468–69). It is
sufficient for the court to acknowledge that it has considered the defendant’s
arguments and § 3553(a) factors, Talley, 431 F.3d at 786, and it is within the
district court’s discretion how much weight an individual § 3553(a) factor should
receive, Clay, 483 F.3d at 743. One of the § 3553(a) factors is “the need to avoid
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unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
Tirado has not shown that her sentence is unreasonable. The court, after
correctly calculating the guidelines range, stated that it had considered all of the §
3553(a) factors and went on to discuss several of them, including the seriousness
of Tirado’s offense, the need to protect the public, and the need to deter Tirado and
others from committing similar crimes. Tirado did not present any evidence of
similarly situated defendants receiving shorter sentences. The one co-defendant
she points to pleaded guilty to a single count of conspiracy to defraud the United
States, in violation of 18 U.S.C. § 371, which carried a statutory maximum of 60
months imprisonment. In addition, although she cites several other fraud cases
from this circuit, she fails to present any evidence that those defendants had similar
records and were convicted of similar conduct. Accordingly, Tirado has not shown
that her 262-month sentence, which is at the bottom of the guidelines range and is
significantly lower than the 90-year statutory maximum sentence she faced, is
either procedurally or substantively unreasonable. See Clay, 483 F.3d at 743.
AFFIRMED.
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