United States v. Roberto Fraire-Rodriguez ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13836 JULY 9, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:11-cr-00072-WSD-AJB-1
UNITED STATES OF AMERICA,
l Plaintiff-Appellee,
versus
ROBERTO FRAIRE-RODRIGUEZ,
a.k.a. Roberto Rodriguez-Fraire,
a.ka. Francisco Garcia,
a.k.a. Robert Fraire,
a.k.a. Roberto Rodriguez,
a.k.a. Roberto Fraire Rodriguez,
a.k.a. Roberto Rodriguez Fraire,
lllllllllllllllllllllllllllllllllllllll l Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 9, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Roberto Fraire-Rodriguez appeals his fifty-seven-month sentence imposed
after he pleaded guilty to one count of reentry of a deported alien, in violation of
8 U.S.C. § 1326(a), (b)(2). On appeal, Fraire-Rodriguez argues that his sentence
was unreasonable in light of the factors in 18 U.S.C. § 3553(a). Fraire-Rodriguez
contends that a downward variance was justified by the specific nature of his
criminal history. He asserts that the sixteen-level enhancement for a previous
crime of violence over-punishes him given the circumstances surrounding his
prior conviction. He further argues a shorter sentence would be better to treat his
alcohol abuse and would sufficiently deter him from committing crimes in the
future.
This Court reviews the substantive reasonableness of a sentence under a
deferential abuse of discretion standard of review. Gall v. United States, 552 U.S.
38, 41, 128 S. Ct. 586, 591 (2007). We can “vacate the sentence if, but only 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.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotation omitted). In this case, Fraire-Rodriguez challenges only the substantive
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reasonableness of the sentence. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.
The district court is required to impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, deter criminal
conduct, protect the public from the defendant’s future criminal conduct, and
provide the defendant with needed vocational training, medical care, or treatment.
See 18 U.S.C. § 3553(a), (a)(2). In imposing a particular sentence, the court must
also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7).
“The party challenging the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors.” United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A sentence imposed within the
guideline range is not presumed to be reasonable, but this Court may ordinarily
expect a sentence imposed within the guideline range to be a reasonable one.
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Further, the length of
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the actual sentence imposed as compared with the guidelines range and statutory
maximum may be considered when reviewing reasonableness. See United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Fraire-Rodriguez’s fifty-seven-month sentence is reasonable. The sentence
was imposed at the low-end of the applicable guideline range. We ordinarily
expect such a sentence to be reasonable. Hunt, 526 F.3d at 746. Fraire-Rodriguez
argues that the district court failed to properly apply the 18 U.S.C. § 3553(a)(2)
factors in imposing its sentence. However, the weight to be given any particular
mitigating factor is left to the sound discretion of the district court. United States
v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). The district court explained that
it imposed the fifty-seven-month sentence in order to deter others from committing
the same offense, and, considering Fraire-Rodriguez’s demonstrated propensity to
commit crimes while under the influence of alcohol, to protect the public from
future crimes. The court also felt that being in prison would help Fraire-
Rodriguez participate in an alcohol recovery program. We discern no abuse of
discretion, and, accordingly, we affirm the sentence as reasonable.
AFFIRMED.
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