United States v. Fausto Leonardo Lopez , 336 F. App'x 852 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15959 MAY 22, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 07-00197-CR-T-23TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAUSTO LEONARDO LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 22, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Fausto Leonardo Lopez appeals his 157-month sentence following his
convictions for distributing and conspiring to distribute methamphetamine. On
appeal, he argues that his sentence, imposed in the middle of the applicable
guideline range, was substantively unreasonable. For the reasons set forth below,
we affirm.
I.
Lopez pled guilty to conspiracy to distribute 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(viii), and
distribution of 50 grams or more of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(viii), and 18 U.S.C. § 2. A probation officer prepared a
pre-sentencing investigation report (“PSI”) and determined that, based on an
offense level of 29 and a criminal history category of V, Lopez had an applicable
guideline range of 140-175 months’ imprisonment. The probation officer also
noted that the statutory maximum penalty was 40 years’ imprisonment.
The probation officer reviewed Lopez’s lengthy criminal history, which
revealed the following prior convictions. In 1996, Lopez was adjudicated guilty of
reckless driving and driving with a suspended license. With respect to that offense,
the probation officer explained that Lopez had fled the scene of an automobile
accident, but he was subsequently located and interviewed by law enforcement
2
officers, during which time Lopez admitted that he had been drinking. In May
1998, Lopez was adjudicated guilty of driving with a suspended license. In
October 1998, Lopez was adjudicated guilty of driving under the influence of
alcohol (“DUI”) and property damage. With respect to that offense, the probation
officer explained that Lopez was involved in an automobile accident and, when the
officer arrived at the scene, Lopez was attempting to flee on foot while the driver
of the other vehicle was attempting to restrain him. In December 1998, Lopez was
adjudicated guilty of driving with a suspended license. In 2000, Lopez was pulled
over for a traffic violation and was later adjudicated guilty of driving with a
suspended license. In 2001, Lopez was adjudicated guilty of battery/domestic
violence in connection with an altercation with his common law wife. In 2003,
Lopez was adjudicated guilty of driving with a suspended license. In 2006, Lopez
was adjudicated guilty of driving with a suspended license and giving a false name
to a law enforcement officer. In 2008, Lopez was adjudicated guilty of driving
with a suspended license and DUI. With respect to that offense, the probation
officer explained that Lopez was pulled over for speeding, and “[a] breath test
resulted in readings of .224 and .226.”
The probation officer also reported that Lopez explained that he first drank
alcohol at the age of 14 and drank “a lot of beer” throughout his adulthood. Lopez,
3
who was born in 1972, also informed the probation officer that, from the age of 25
until the time of his arrest, he used cocaine on a daily basis and smoked marijuana
occasionally.
At sentencing, defense counsel stated that there were no objections to the
PSI, and the district court adopted the PSI’s factual findings and guideline
calculations. Defense counsel then argued for a downward variance under the
§ 3553(a) factors based on the fact that Lopez’s criminal history category of V was
due to his alcohol problem. In this respect, counsel emphasized that all of Lopez’s
vehicular offenses were non-violent, misdemeanors. After Lopez personally
apologized to the court, the court made the following statement:
Mr. Lopez, your counsel makes an interesting point when he says that
you have a status as a Criminal History Category V offender in a
manner that is not typical. I think that’s right in the sense that seldom
do we see somebody who achieves Category V based primarily on a
remarkable refusal over a long period of time to comply with the
rudimentary laws relating to drunk and irresponsible driving and the
acquisition of a driver’s license. Of course, having a driver’s license
is an absolute minimum requirement. Perhaps as far as the other
members of the public who are on the highways asking that that driver
also be somewhere near sober and even perhaps more to the point
many times have insurance so that when he crashes, he doesn’t flee –
as I think you have at least once – and is able to be responsible for the
damage that is caused. I must admit that your persistence in
conducting yourself recklessly and irresponsibly on the highways is
among the worst I’ve seen. I think any disinterested person looking at
your record would agree with that.
Secondly, one can look at your personal history and see an
4
unmistakable escalation in your behaviors, no doubt in part as your
counsel says owing to this problem you have with [alcohol]. I expect
that [this] is why this domestic battery shows up and all that sort of
thing. I guess the bottom line is you can spend most of your life sober
and get a driver’s license and buy some insurance and live like the rest
of us, or you can go around from place to place recklessly driving
without a license, drunk, and expect to land up in jail, which is what’s
happened.
Of course, trafficking in methamphetamines is a different animal all
together. I must say it’s consistent with a pattern of your disregard for
the well-being of those who live around you, both in your house and
in your neighborhood. When you conduct yourself like that, you
cannot expect to retain your liberty or to retain your place in the
United States. So, yes, I expect you are going to go to prison, and,
yes, I expect you are going to get deported. On reflection it should be
clear to you that you almost insisted on both of those by your
behavior. You had every chance in the world to do something else
and failed to do it.
Citing Booker1 and 18 U.S.C. § 3553(a), the court then sentenced Lopez to 157
months’ imprisonment on both counts, to run concurrently. In imposing this
sentence, the court stated that it had considered the advisory Guidelines and the
§ 3553(a) factors. The court then made the following statement:
I incorporate my comments to the defendant a few minutes ago with
respect to his protracted disregard for the welfare of those around him,
both in his domestic battery and his public misbehavior on the
highways, and as well the escalation of his lawlessness into trafficking
into methamphetamines. He stands undeterred by that which has
happened to him previously. In general, he’s a pestiferous influence
in the community. He needs sobriety. I hope he finds that in prison.
He has available to him during his imprisonment some opportunities
1
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
5
for education and vocational training. He needs as many of those as
he can acquire during his confinement. His aggregate criminal history
is to say the least unappealing and presents him with a number of
realities that he has to confront and overcome or else he simply will
resume the predictable criminal path when he regains his liberty.
At any rate I am convinced that both with respect to similarly situated
offenders in other cases and with respect to his co-defendants, this
sentence creates no unwarranted disparity, if any disparity at all, net of
adjustments in the Sentencing Guidelines, and is in all respects
reasonable. Comfortably so, I think.
As part of the judgment of conviction, the court recommended that Lopez
participate in a 500-hour comprehensive drug control program offered by the
Bureau of Prisons (“BOP”).
II.
We review a defendant’s sentence for reasonableness under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. __, __, 128 S. Ct. 586, 591,
594, 597, 169 L. Ed. 2d 445 (2007); United States v. Pugh, 515 F.3d 1179, 1190-91
(11th Cir. 2008). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” United States v. McBride, 511 F.3d 1293, 1297
(11th Cir. 2007) (quotation marks omitted) (alternations in original).
A sentence may be procedurally or substantively unreasonable. United
6
States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006).2 “[W]e will only reverse
a procedurally proper sentence if we are left with the definite and firm 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.” McBride, 511 F.3d at 1297-98
(internal quotation marks omitted). The factors in § 3553(a) that the court must
consider are:
(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.
United Stats v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.
§ 3553(a)). It is sufficient for the district court to acknowledge that it has
considered the § 3553(a) factors, but it need not explicitly discuss each of them.
United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
III.
2
Lopez briefly asserts that the court committed procedural error by treating the Guidelines
as mandatory, but we reject this assertion because the district court explicitly recognized that the
Guidelines were advisory only.
7
In this case, the district court stated that it had considered both the advisory
Guidelines and the § 3553(a) factors in arriving at its sentence. Moreover, the
court’s sentence of 157 months’ imprisonment fell within the applicable guideline
range, a sentence that is ordinarily expected to be reasonable. Talley, 431 F.3d at
786-88. In addition, the court’s sentence was well below the statutory maximum
sentence of 40 years’ imprisonment, another factor indicating that the court’s
sentence was reasonable. See United States v. Winingear, 422 F.3d 1241, 1246
(11th Cir. 2005) (holding that the court’s sentence was not unreasonable where,
inter alia, it was one-tenth the length of the statutory maximum sentence).
Furthermore, the record reveals that the district court “ma[d]e an
individualized assessment based on the facts presented.” Gall, 552 U.S. __, 128
S.Ct. at 597. In other words, the court’s sentence was reasoned. The court
correctly emphasized Lopez’s remarkable criminal history dating back to 1996,
finding his reckless and irresponsible behavior on the highways to be among the
worst it had seen. The court also referenced the fact that Lopez was driving
without insurance and had attempted to flee from the scene of an accident on at
least one occasion; indeed, the PSI indicates that Lopez attempted to do so on two
separate occasions. The court further recognized that Lopez’s criminal behavior
had “escalated” over the years, resulting in his domestic battery offense. In this
8
respect, the court found Lopez’s instant conviction for trafficking in
methamphetamine to be consistent with this pattern of behavior and with Lopez’s
general disregard for the welfare of others around him. As a result of this criminal
history, the court understandably found that Lopez had been “undeterred by that
which has happened to him previously.”
On appeal, Lopez contends that the court did not adequately consider the
fact that his criminal history category of V was the result of his alcohol addiction.
However, the court explicitly recognized that Lopez had an alcohol problem,
expressing its hope that Lopez would find the sobriety he needed in prison. The
court also adopted the factual findings in the PSI, including Lopez’s admission that
he had drank heavily since the age of 14, used cocaine on a daily basis since the
age of 25, and used marijuana occasionally since the age of 25. The court also
recommended that Lopez be enrolled in a comprehensive drug program, thus
providing Lopez with “medical care” and “correctional treatment.” 18 U.S.C.
§ 3553(a)(2)(D). But more importantly, Lopez’s alcohol addiction did not cut in
his favor. He had been convicted of driving with a suspended license on seven
separate occasions. Significantly, he had admittedly been drinking during the 1996
offense and was subsequently convicted of DUI in 1998 and 2008. Thus, Lopez’s
criminal history demonstrated that his addictive behavior, coupled with his
9
propensity for getting behind the wheel – despite not having a license or insurance
– continued to pose a grave danger to other innocent drivers on the road.
Finally, Lopez asserts that the court failed to consider an alleged sentencing
disparity between deportable aliens, such as himself, and U.S. citizens convicted of
the same offense. However, as the government points out, there is nothing in the
record to support Lopez’s argument, as he did not raise it below and has not
requested to supplement the record on appeal. As a result, he has not shown that
court abused its discretion by failing to consider this alleged sentencing disparity.
Accordingly, we affirm.
AFFIRMED.
10