United States v. Felipe Rascon Delacruz , 199 F. App'x 879 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 10, 2006
No. 05-16271 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00031-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE RASCON DELACRUZ,
a.k.a. Marcos Felipe Rodrigue Delacruz,
a.k.a. Marcos Rodriguez,
a.k.a. Michael Smith Sambrano,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 10, 2006)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Felipe Rascon Delacruz appeals his 96-month sentence for illegal reentry
into the United States following deportation subsequent to a conviction for
commission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2). We AFFIRM.
I. BACKGROUND
Delacruz originally entered the United States without inspection in 1981 but
encountered Border Patrol agents and was deported to Mexico. He subsequently
reentered the United States and was convicted of two counts of burglary of a
dwelling in 1986. He received a sentence of one to fifteen years of imprisonment,
served one year, and then was deported to Mexico. Four months later, Delacruz
again was located in the United States. On July 31, 1987, he was convicted of two
counts each of burglary of a dwelling and theft of a firearm. In August 1987,
Delacruz was convicted of attempted burglary of a dwelling. He received a
sentenced of one to fifteen years of imprisonment for the burglary and theft
convictions to run concurrently with a five-year sentence for the attempted
burglary conviction. He served for approximately four years and was deported to
Mexico in October 1991. In 1997, he again was deported to Mexico following
conviction for petit larceny.
In February 2005, Delacruz was arrested for driving without a license.
2
While being interviewed by the Bureau of Immigration and Customs Enforcement,
Delacruz admitted that he was a citizen of Mexico and that he previously had been
deported and had not received permission to reenter the United States. In
accordance with U.S.S.G. § 2L1.2, the probation officer determined Delacruz’s
adjusted offense level to be 24, which increased the base offense level of 8 by
sixteen levels because of Delacruz’s previous deportations for crimes of violence.
Delacruz received a three-level reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1(a) and (b), which resulted in a total offense level of 21. The
probation officer calculated 13 criminal history points, which included three points
for each of the three felony convictions in 1987. Delacruz also received one point
for each of six convictions of retail, petit, and grand theft, which were counted as
only four points under U.S.S.G. § 4A1.1(c). Additionally, the probation officer
noted in the Presentence Investigation Report (“PSI”) nine other convictions,
including a felony burglary conviction in 1986, for which no points were assigned
pursuant to U.S.S.G. § 4A1.2(e)(3), requiring a sentence to be within a certain time
period to count, and U.S.S.G. § 4A1.2(c)(1), excluding sentences for certain
misdemeanor and petty offenses. The 13 criminal history points placed Delacruz
in a criminal history category of VI. With this criminal history category and an
offense level of 21, the recommended range was 77-96 months of imprisonment.
3
This range is within the statutory maximum sentence of 20 years. 8 U.S.C. §
1326(b)(2). Delacruz's counsel argued that a criminal history category of VI
overstated his criminal history and that a criminal history category of IV or V
would be more appropriate.
At the sentencing hearing, Delacruz's counsel explained his request for a
downward departure on Delacruz's criminal history category. He argued that the
burglary convictions, which were the most serious offenses listed in the PSI, had
occurred over fifteen years before and were counted only because Delacruz's
incarceration period for those offenses was within fifteen years. Defense counsel
contended that his more recent offenses were minor, such as petty theft.
The district judge noted his authority to depart downward under U.S.S.G. §
4A1.3(b) and concluded that downward departure was not warranted. R3 at 6-7.
The judge found that the assigned category of VI was appropriate, given
Delacruz’s history of committing crimes while in the United States unlawfully at
various times over a twenty-year period. Id. The judge then adopted the factual
statements and application of the Sentencing Guidelines set forth in the PSI.
Delacruz's counsel also argued that the district judge should impose a
sentence below the Sentencing Guidelines range and requested a 60-month
sentence. The government asked the judge to impose a sentence within the
4
Sentencing Guidelines range and noted Delacruz’s prior deportations and criminal
history. After hearing these arguments, the judge noted that Delacruz had been
deported four times and stated: “In looking at your criminal history, it certainly
does not justify a sentence of below the guidelines. If anything, it would justify a
sentence toward the high end.” Id. at 11. The judge then sentenced Delacruz to 96
months of imprisonment and explained that he had considered the Sentencing
Guidelines range and the 18 U.S.C. § 3553(a) factors. Id.Following the pronouncement of the sentence, the judge repeated that he
“imposed a sentence at the high end of the guidelines based upon the Court’s
consideration of the factors set forth in Title 18, United States Code, Section
3553(a)(1) through (7).” Id. at 13. The judge then advised Delacruz of his right to
appeal, asked if there was “anything else,” and received negative responses from
counsel. Id. at 14-15.
II. DISCUSSION
On appeal, Delacruz's counsel argues that the 96-month sentence imposed by
the district court was unreasonable and greater than necessary to comport with the
purpose of § 3553. Defense counsel relies on the arguments he raised at the
sentencing hearing as factors indicating the unreasonableness of Delacruz's
sentence, particularly focusing on the length of time since the felony convictions
5
and the minor nature of the subsequent convictions. Delacruz's counsel also states
that Delacruz provides financial support for his four children and is willing to
undergo treatment for a prior substance abuse problem.
We have held that “'[i]n reviewing the ultimate sentence imposed by the
district court for reasonableness, we consider the final sentence, in its entirety, in
light of the § 3553(a) factors.'” United States v. Martin, 455 F.3d 1227, 1237 (11th
Cir. 2006) (citation omitted). Some of the § 3553(a) factors include the nature and
circumstances of the offense, the history and characteristics of the defendant, the
need to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense, the Sentencing Guidelines range, and the
need to avoid unwarranted sentence disparities. 18 U.S.C. § 3553(a). The
sentencing judge need not state on the record that he or she has explicitly
considered each factor and need not discuss each factor. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005) (per curiam). An acknowledgment by the
district judge that he or she has considered the § 3553(a) factors will suffice. Id.
The reasonableness review is “'deferential,'” and the burden of proving that
the sentence is unreasonable in view of the § 3553(a) factors rests on the party
challenging the sentence. United States v. Valnor, 451 F.3d 744, 750 (11th Cir.
2006) (citation omitted). We further have held that, although a sentence within the
6
Sentencing Guidelines range will not be considered per se reasonable, “when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 788.
At the sentencing hearing, the district judge considered Delacruz’s
arguments regarding his criminal history by his counsel. Nonetheless, the judge
imposed a sentence at the high end of the Sentencing Guidelines range because of
Delacruz’s repeated reentries into the United States following deportation and his
twenty-year pattern of criminal activity. The district judge also recognized
Delacruz’s request to enter a substance-abuse program by ordering him to
participate in a treatment program. Thus, the judge’s ruling reflects consideration
of the § 3553(a) factors, including the nature and circumstances of the offense, the
history and characteristics of Delacruz, the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, provide just punishment,
and the advisory Sentencing Guidelines range.
Furthermore, the district judge twice explicitly stated that he had considered
the Sentencing Guidelines range and the § 3553(a) factors. See United States v.
Scott, 426 F.3d 1324, 1330 (11th Cir. 2005) (affirming the defendant’s sentence
7
where the judge clearly considered the § 3553(a) factors).1 Additionally, the
sentence imposed is well below the statutory maximum sentence of twenty years of
imprisonment, and the district judge was bound only by this ceiling. 8 U.S.C. §
1326(b)(2); see, e.g., United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005) (per curiam) (affirming the defendant’s sentence as reasonable where,
among other considerations, it was one-tenth of the statutory maximum sentence).
Therefore, Delacruz has not met his burden of showing that the district court
imposed an unreasonable sentence.
III. CONCLUSION
Delacruz has challenged his 96-month sentence after pleading guilty to
unlawful reentry into the United States following deportation after conviction for
commission of an aggravated felony in violation of §§ 1326(a) and (b)(2).
Because Delacruz did not meet his burden of showing that the district court
imposed an unreasonable sentence, his sentence is AFFIRMED.
1
Although the district judge failed to elicit fully articulated objections following
imposition of the sentence in accordance with United States v. Jones, 899 F.2d 1097, 1102 (11th
Cir. 1990), overruled in part on other grounds by United States v. Morrill, 984 F.2d 1136, 1137
(11th Cir. 1993) (en banc) (per curiam), he did ask if either party had anything further to add,
and they responded negatively. Delacruz’s arguments on appeal were articulated fully to the
district judge, and the record before us is sufficient for meaningful appellate review. United
States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir. 1991).
8