United States v. Fernando Medina Lopez ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15237 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 6, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:11-cr-00304-CAP-RGV-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
FERNANDO MEDINA LOPEZ,
a.k.a. Julio Cesar Perez De La Cruz,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 6, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Fernando Medina Lopez appeals his 44-month sentence, imposed within the
applicable guideline range of 41 to 51 months’ imprisonment, after pleading guilty
to illegally reentering the United States after having been previously deported, in
violation of 8 U.S.C. § 1326(a) and (b)(2). For the reasons set forth below, we
affirm.
I.
The record shows that Lopez, a citizen of Mexico, illegally entered the
United States in 2000 on three separate occasions, but each time he encountered
law enforcement agents and voluntarily returned to Mexico. Subsequently, Lopez
again entered the United States illegally and, in 2006, was convicted in state court
for marijuana trafficking after a police officer discovered 41 pounds of marijuana
in the trunk of his car. Lopez was sentenced to 85 months in prison for that
offense and was deported after being released on parole. In 2011, Immigration
and Customs Enforcement (“ICE”) officers discovered Lopez in a county jail,
following his arrest for possession of marijuana with intent to distribute, and
determined that he was in the country illegally, which led to the instant conviction.
In compiling the presentence investigation report, the probation officer
calculated Lopez’s guideline range and assigned him a base offense level of 8,
pursuant to U.S.S.G. § 2L1.2(a). The officer added 16 levels under
§ 2L1.2(b)(1)(A)(I) because Lopez was previously deported after being convicted
of a drug trafficking offense for which the sentence exceeded 13 months. Lopez
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qualified for a 3-level reduction under § 3E1.1 for acceptance of responsibility,
yielding an offense level of 21. Based on Lopez’s marijuana trafficking
conviction, the probation officer assigned him 3 criminal history points and placed
him into a criminal history category of II, which, combined with the offense level
of 21, resulted in a guideline range of 41 to 51 months in prison.
At the sentencing hearing, Lopez requested a sentence of 18 months,
emphasizing the fact that his guideline range was dramatically increased solely
because of his one prior conviction. However, the district court sentenced Lopez
to 44 months in prison, explaining that he was previously convicted of a serious
drug offense, that he had been deported multiple times, and that he lacked a
verifiable work history while in the United States. The court stated that it had
considered the § 3553(a) factors and was “particularly focused on deterrence,”
given that the previous 85-month sentence failed to deter him. On appeal, Lopez
argues that his sentence was substantively unreasonable.
II.
We review the reasonableness of a sentence under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). “The review for substantive unreasonableness involves
examining the totality of the circumstances, including an inquiry into whether the
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statutory factors in § 3553(a) support the sentence in question.” United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).1 We do not apply “a
presumption of reasonableness” to sentences within the guideline range. United
States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir.), cert. denied, 131 S.Ct. 643(2010). However, we will “ordinarily expect” a within-guideline sentence to be
reasonable, and will only remand for resentencing if the district court committed a
“clear error of judgment” in weighing the § 3553(a) factors. Gonzalez, 550 F.3d
at 1324 (quotation omitted).
In this case, the district court’s sentence of 44 months in prison fell near the
low end of the guideline range of 41 to 51 months, and we would ordinarily expect
such a sentence to be reasonable. See id. In addition, the sentence of 44 months
(or 3.67 years) was well below the 20-year statutory maximum for Lopez’s
offense. See 8 U.S.C. § 1326(b)(2); Gonzalez, 550 F.3d at 1324 (concluding that
the sentence was reasonable in part because it was well below the statutory
1
Under § 3553(a), a sentencing court must impose a sentence that is “sufficient, but not
greater than necessary” to comply with the purposes of sentencing set forth in § 3553(a)(2),
which include the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s further crimes. 18 U.S.C. § 3553(a)(2). Other factors to be considered in imposing a
sentence include the nature and circumstances of the offense, the history and characteristics of
the defendant, the available sentences, the applicable guideline range, the need to avoid
unwarranted sentence disparities, and the need to provide restitution to victims. Id. § 3553(a)(1),
(3)-(7).
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maximum).
Lopez argues that his sentence was unreasonable because it was greater than
necessary to achieve the sentencing goals of § 3553(a), thereby violating the
“parsimony principle.”2 We disagree. In light of Lopez’s prior conviction for
marijuana trafficking, for which he received a sentence of 85 months, and his prior
repeated illegal entries, the district court could reasonably determine that nothing
less than 44 months would suffice to deter him from committing future crimes and
that a within-guideline sentence was necessary to reflect the seriousness of the
offense, promote respect for the law, provide just punishment, and protect the
public. See 18 U.S.C. § 3553(a)(2)(A)-(C). Notably, the “weight to be accorded
any given § 3553(a) factor is a matter committed to the sound discretion of the
district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation omitted).
Lopez also argues that the court failed to consider the sentencing disparity
under § 3553(a)(6), given that his drug conviction was treated in the same way as
much more serious offenses, such as murder or rape. However, the Sentencing
2
We have previously disapproved of the term “parsimony principle,” because that term
does not accurately reflect the mandate of § 3553(a) that a proper sentence be both sufficient and
not greater than necessary to achieve the goals of sentencing. See United States v. Irey, 612 F.3d
1160, 1196-97 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011).
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Commission determined that a drug trafficking offense for which the sentence
exceeded 13 months was “serious enough” to warrant a 16-level enhancement for
illegal reentry. United States v. Ortega, 358 F.3d 1278, 1280 (11th Cir. 2003); see
U.S.S.G. § 2L1.2(b)(1)(A)(I). We see no reason for rejecting the Sentencing
Commission’s determination.
Finally, Lopez contends that this Court has affirmed downward variances in
other cases dealing with less compelling defendants charged with more serious
crimes. While that may be so, such cases do not imply that a downward variance
was warranted in this particular case, as the district court had broad discretion to
impose an individualized sentence that lay within “the range of reasonable
sentences dictated by the facts of the case.” Gonzalez, 550 F.3d at 1324; United
States v. Shaw, 560 F.3d 1230, 1241 (11th Cir. 2009) (stating that this Court’s
affirmance of lesser variances in other cases did not warrant a reversal of a greater
variance in the instant case).
In sum, the district court did not commit a clear error of judgment in
determining that the § 3553(a) factors warranted a within-guideline sentence of 44
months. See 18 U.S.C. § 3553(a)(1)-(2); Clay, 483 F.3d at 743. Because Lopez’s
sentence was substantively reasonable, we affirm.
AFFIRMED.
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