United States v. Sandra Suarez ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10426
Non-Argument Calendar
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D.C. Docket No. 4:10-cr-10003-JEM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SANDRA SUAREZ,
a.k.a. CHULI,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 25, 2013)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
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Sandra Suarez appeals her sentence, imposed upon revocation of probation,
of 10 months’ imprisonment and 2 years’ supervised release, arguing that (1) the
district court should have reduced her guideline level to account for acceptance of
responsibility, (2) her sentence was procedurally unreasonable, and (3) her 10-
month sentence is unreasonably long. We find no merit to these arguments and
affirm.
We begin with Suarez’s claim that the district court erred in not affording
her a guideline reduction for acceptance of responsibility. We review the district
court’s decision whether to adjust for acceptance of responsibility for clear error,
and “[a] district court’s determination that a defendant is not entitled to acceptance
of responsibility will not be set aside unless the facts in the record clearly establish
that a defendant has accepted personal responsibility.” United States v. Amedeo,
370 F.3d 1305, 1320–21 (11th Cir. 2004) (internal quotation marks omitted).
We discern no error, clear or otherwise, in the district court’s refusal to grant
Suarez a guideline reduction for acceptance of responsibility. Chapter 7 of the
United States Sentencing Guidelines governs sentences imposed upon revocation
of probation or supervised release. The guidelines clearly provide that the only
factors to be considered in determining the applicable guideline range in a
revocation case are the grade of violation and the criminal history category of the
offender, as calculated at the time of sentencing. U.S.S.G. § 7B1.4(a). Because
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the offender’s potential acceptance of responsibility is not a valid consideration in
determining the guideline range upon revocation of probation, the district court did
not err in refusing to grant Suarez a guideline reduction for her purported
acceptance of responsibility.
We next consider Suarez’s argument that her sentence is unreasonable. Our
reasonableness inquiry includes two distinct elements: we first determine whether
a sentence is procedurally reasonable, and then turn our attention to whether the
sentence is, on the whole, substantively reasonable. See United States v. Gonzalez,
550 F.3d 1319, 1323 (11th Cir. 2008) (per curiam). We review the reasonableness
of the sentence imposed by the district court “under [the] deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007); see United States v. Mitsven, 452 F.3d 1264, 1266 n.1 (11th Cir. 2006)
(noting that the analysis for revocation of probation is “essentially the same” as
that for supervised release); United States v. Sweeting, 437 F.3d 1105, 1106–07
(11th Cir. 2006) (per curiam) (explaining that sentences upon revocation of
supervised release are reviewed for abuse of discretion).
In reviewing the reasonableness of a sentence, we consider the factors
enumerated in 18 U.S.C. § 3553(a). United States v. Pugh, 515 F.3d 1179, 1188–
89 (11th Cir. 2008); see 18 U.S.C. § 3565(a) (providing that district court must
consider the § 3553(a) sentencing factors when sentencing a defendant upon
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revocation of probation). These factors include: (1) the nature and circumstances
of the offense; (2) the history and characteristics of the defendant; (3) the need for
the sentence to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (4) the need to deter criminal
conduct; (5) the need to protect the public from further crimes of the defendant; (6)
the need to provide the defendant with educational or vocational training or
medical care; (7) the kinds of sentences available; (8) the guideline range; (9)
policy statements of the United States Sentencing Commission; (10) the need to
avoid unintended sentencing disparities; and (11) the need to provide restitution to
victims. See 18 U.S.C. § 3553(a). The party challenging a sentence “bears the
burden of establishing that the sentence is unreasonable in the light of both th[e]
record and the factors in [§] 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005) (per curiam).
To be procedurally reasonable, the district court must properly calculate the
guideline range, treat the guidelines as advisory rather than mandatory, consider all
of the § 3553(a) factors, and adequately explain the sentence imposed. See United
States v. Chavez, 584 F.3d 1354, 1364 n.13 (11th Cir. 2009). In explaining the
sentence, the district court should set forth enough information to satisfy the
reviewing court of the fact that it has considered the parties’ arguments and has a
reasoned basis for making its decision, Rita v. United States, 551 U.S. 338, 356,
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127 S. Ct. 2456, 2468 (2007), but “nothing . . . requires the district court 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.” United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). Instead, the district court’s explanation suffices if it is clear from
the explanation that the court considered a number of the relevant sentencing
factors. See United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).
We find no procedural infirmity in Suarez’s sentencing. Although the
district court never explicitly stated that it was applying the § 3553(a) factors in
sentencing Suarez, it did state that it was imposing a sentence pursuant to the
Sentencing Reform Act of 1984, of which § 3553(a) is a part. See Act of Oct. 12,
1984, Pub. L. No. 98-473, § 212, 98 Stat. 1837. More importantly, the record
reveals that the district court did in fact weigh several of the § 3553(a) factors in
sentencing Suarez, including: (1) her personal characteristics and history, including
her repeated failures to take advantage of favorable sentences; (2) the guideline
range; (3) the nature of her probation violation, which included an arrest for grand
larceny, credit card fraud, forgery, and passing of counterfeit checks; and (4) the
fact that Suarez had tested positive for cocaine while on probation and had been
arrested on multiple occasions during the pendency of her probationary term. This
explanation satisfies us that the district court considered the parties’ arguments and
exercised its reasoned judgment in imposing Suarez’s ten-month sentence. See
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Rita, 551 U.S. at 356, 127 S. Ct. at 2468. The sentence was therefore procedurally
reasonable.
Once we determine that a sentence is procedurally sound, we then examine
whether the sentence is substantively reasonable in light of the totality of the
circumstances, including the degree of any variance from the guideline range.
Gall, 552 U.S. at 51, 128 S. Ct. at 597. In determining whether a sentence is
substantively reasonable, we engage in a “deferential” assessment of whether the
sentence imposed is sufficient, but not greater than necessary, to comply with the
purposes of sentencing set forth in § 3553(a)(2). Talley, 431 F.3d at 788. “In our
evaluation of a sentence for reasonableness, we recognize that there is a range of
reasonable sentences from which the district court may choose, and when the
district court imposes a sentence within the advisory [g]uidelines range, we
ordinarily will expect that choice to be a reasonable one.” Id. Thus, we will vacate
and remand for a new sentencing “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) (internal quotation marks omitted).
Turning to the facts at hand, Suarez’s ten-month sentence was within her
unchallenged guideline range, so we expect it to be substantively reasonable.
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United States v. Joseph, 709 F.3d 1082, 1105 (11th Cir. 2013) (“Although we have
not adopted a presumption that a sentence within the guideline range is reasonable,
we have stated that ordinarily we would expect a sentence within the [g]uidelines
range to be reasonable.” (internal quotation marks omitted)). Suarez argues that
the district court imposed a substantively unreasonable sentence because it did not
give her proper credit for accepting responsibility for her probation violations. We
disagree. In sentencing Suarez, the district court confronted an offender who had
repeatedly violated her probation by committing theft, failing to abstain from the
use of illegal drugs, and failing to abide by the terms of the restitution payment
schedule from her original offense. In light of these facts, we think the district
court’s decision to impose a ten-month custodial sentence was not only reasonable,
but eminently so. Because the district court’s original non-custodial sentence
apparently failed to achieve the purposes of sentencing (Suarez did, after all,
continue to violate the law), it stands to reason that a term of incarceration might
better achieve the desired effect. Needless to say, we are not left with “the definite
and firm conviction” that the district court committed a clear error in judgment and
arrived at a sentence lying outside the range of reasonable sentences dictated by the
facts of this case. Irey, 612 F.3d at 1190.
AFFIRMED.
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