United States v. Armando Villatoro-Reyes , 481 F. App'x 518 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 29, 2012
No. 11-14328
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:11-cr-20123-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO VILLATORO-REYES,
a.k.a. Jorge Moreno,
a.k.a. Teodoro Osorio-Martinez,
a.k.a. Carlos Reyes,
a.k.a. Hernanan Valdez,
a.k.a. Franklin Reyes,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 29, 2012)
Before EDMONDSON, CARNES and FAY, Circuit Judges.
PER CURIAM:
Armando Villatoro-Reyes, who was convicted after he pleaded guilty to
illegally reentering the United States after deportation for an aggravated felony,
appeals his 70-month prison sentence, contending that it is substantively
unreasonable.
I.
Villatoro-Reyes was deported from the United States in 1996 because he
had been convicted in California of possession for sale of cocaine base, an
aggravated felony. He reentered the United States in 1998 through Miami,
Florida. In 2011 he was arrested by deportation officers and indicted by a federal
grand jury for illegally reentering the United States after deportation for an
aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). He pleaded guilty to that
charge without a written plea agreement.
The presentence investigation report recommended a base offense level of 8
under United States Sentencing Guidelines § 2L1.2(a) (Nov. 2010). It added 16
levels under § 2L1.2(b)(1)(A) because Villatoro-Reyes was deported after being
convicted of a drug trafficking offense for which the sentence imposed exceeded
13 months, and it subtracted 3 levels for acceptance of responsibility under §
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3E1.1. The result was a recommended total offense level of 21.
The PSR reviewed Villatoro-Reyes’ extensive criminal history, which
included convictions for driving under the influence, battery, sale or transportation
of a controlled substance (twice), possession for sale of cocaine base (twice),
prison escape without force, driving without a valid driver’s license (three times),
and resisting an officer without violence. His criminal history also included
additional arrests for burglary of an occupied conveyance, driving without a valid
driver’s license, DUI, and possession of a controlled substance. The PSR
calculated a total of 11 criminal history points and recommended a criminal
history category of V.
With a total offense level of 21 and a criminal history category of V, the
applicable guidelines range was 70–87 months imprisonment. The statutory
maximum sentence for reentering the United States after deportation for an
aggravated felony is 20 years. See 8 U.S.C. § 1326(b)(2).
Villatoro-Reyes did not object to the calculation of the guidelines range, but
he asked for a below-the-guidelines sentence of 30 months. He argued that his
conviction of possession for sale of cocaine base was “getting double scored”
because it was used for the U.S.S.G. § 2L1.2(b)(1)(A) enhancement and also
counted toward his criminal history points. He argued that, based on the nature
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and circumstances of his offense, his history and characteristics, his lack of
“scorable” offenses since the mid-1990s, the “flawed nature” of § 2L1.2, and the
other 18 U.S.C. § 3553(a) factors, a sentence of 30 months was reasonable. The
government requested a sentence at the bottom of the guidelines range.
The district court pointed out that Villatoro-Reyes had recent arrests, one
for a controlled substance violation in 2001 and one for a burglary violation in
2007. It then said: “If he is committing crimes, some of them pretty serious, I
have a little difficulty with a variance.” The court also stated that “under the
circumstances, the provisions of 18 U.S.C. § 3553, in consideration of those
factors and the argument of counsel, the briefs and memorandum . . . that a
sentence within the guidelines is the appropriate sentence to effectuate a fair and
just sentence.” It sentenced Villatoro-Reyes to 70 months imprisonment and 3
years supervised release.
II.
Villatoro-Reyes contends that his sentence is substantively unreasonable
because the district court did not properly weigh the 18 U.S.C. § 3553(a) factors.
We apply an abuse of discretion standard in reviewing a sentence. United States
v. White, 663 F.3d 1207, 1215 (11th Cir. 2011). Our substantive reasonableness
review is guided by the factors in 18 U.S.C. § 3553(a). Id. at 1217. The district
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court is required to impose a sentence that is “sufficient, but not greater than
necessary, to comply with the purposes” listed in that statutory provision. 18
U.S.C. § 3553(a). Those purposes include the need to reflect the seriousness of
the offense, promote respect for the law, provide just punishment of the offense,
deter criminal conduct, protect the public from the defendant’s future criminal
conduct, and provide the defendant with needed educational or vocational training
or medical care. Id. § 3553(a)(2). Among other factors, the district court must
also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the applicable guidelines range, and the need to
avoid unwarranted sentencing disparities. See id. § 3553(a)(1), (4), (6).
The burden of establishing that a sentence is unreasonable lies with the
party challenging it. White, 663 F.3d at 1217. We will vacate a sentence for
substantive unreasonableness “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 marks omitted).
Villatoro-Reyes has not demonstrated that his sentence is substantively
unreasonable. His 70-month sentence is inside the guidelines range, and
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“although we do not automatically presume a sentence within the guidelines range
is reasonable, we ordinarily expect a sentence within the Guidelines range to be
reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (alteration
and quotation marks omitted). His sentence is also well below the statutory
maximum prison term of 20 years, see United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008) (holding that a defendant’s sentence was reasonable in part
because it was well below the statutory maximum), and the record shows that the
court considered the § 3553(a) factors and Villatoro-Reyes’ argument for a below-
the-guidelines sentence. See United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005) (holding that a district court is not required “to state on the record that
it has explicitly considered each of the § 3553(a) factors or to discuss each of the §
3553(a) factors”).1
AFFIRMED.
1
To the extent Villatoro-Reyes argues that the district court engaged in double counting
by using a prior conviction for both the U.S.S.G. § 2L1.2 enhancement and for calculating his
criminal history category, we reject that argument. Double counting is permitted if the
Sentencing Commission intended that result and the two guidelines sections serve different
purposes. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992). Criminal history
categories punish recidivists, and § 2L1.2(b)(1)(A) deters aliens from reentering the country after
committing felonies. Id.
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