United States v. Francisco Duarte-Cuautle , 415 F. App'x 127 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12316 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 16, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00558-WSD-RGV-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO DUARTE-CUAUTLE,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 16, 2011)
Before TJOFLAT, EDMONDSON and CARNES, Circuit Judges.
PER CURIAM:
Francisco Duarte-Cuautle appeals his 37-month sentence imposed for
illegally re-entering the United States after having been deported, 8 U.S.C. §
1326(a). No reversible error has been shown; we affirm.
On appeal, Duarte-Cuautle argues that his sentence substantively is
unreasonable based on a 16-level enhancement in his guidelines range for a 10-
year-old robbery conviction.* Because of the age and non-violent nature of the
offense, Duarte-Cuautle says that his case justified a sentence below the guidelines
range. We evaluate the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard. Gall v. United States, 128 S.Ct. 586, 597
(2007).
The party challenging the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both the record and the 18 U.S.C. §
3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Briefly stated, under section 3553(a), a district court should consider the nature
and circumstances of the offense, the history and characteristics of the defendant,
*
See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (providing for a 16-level enhancement for a defendant
previously deported after a conviction for a crime of violence).
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the need for the sentence to provide adequate deterrence, respect for the law, and
protection of the public, provision for the medical and educational needs of the
defendant, the guidelines range, policy statements of the Sentencing Commission,
and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(1)-(7).
We conclude that Duarte-Cuautle’s 37-month sentence -- at the bottom of
the applicable guidelines range -- substantively is reasonable. See Talley, 431
F.3d at 788 (noting that “ordinarily we would expect a sentence within the
Guidelines range to be reasonable”). The sentence is well below the 20-year
statutory maximum. See 8 U.S.C. § 1326(b)(2); United States v. Valnor, 451 F.3d
744, 751-52 (11th Cir. 2006) (concluding that a 28-month sentence was reasonable
because, among other things, the sentence was “appreciably below the length of
the [180-month] statutory maximum”).
In addition, the district court explained that a guidelines sentence was
warranted in Duarte-Cuautle’s case because he repeatedly had broken United
States immigration law and needed to be deterred from future violations. The
district court also noted that Duarte-Cuautle’s criminal and immigration histories
showed a lack of respect for the law. And the record reflects that Duarte-Cuautle
earlier had been deported after a 1999 robbery conviction and again deported in
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2007. Thus, the district court’s reasons for the sentence are supported by the
record and the section 3553(a) factors; and we see no abuse of discretion in
imposing a guidelines sentence.
Duarte-Cuautle argues that his 10-year-old robbery conviction unreasonably
lengthened his sentence. But the guidelines provide specifically for a 16-level
enhancement to the base offense level for a defendant who previously was
deported after a conviction for a “crime of violence,” which includes robbery.
U.S.S.G. § 2L1.2(b)(1)(A)(ii); section 2L1.2 comment. (n.1(B)(iii)). And this
enhancement applies no matter the age of the conviction. United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1314-15 (11th Cir. 2005).
Duarte-Cuautle contends that the robbery conviction formed the bases of the
court’s sentence; but the district court chiefly relied on his recidivist violation of
United States immigration law, and not the robbery conviction, in fashioning the
sentence. We cannot say then, as Duarte-Cuautle contends, that the court placed
too much weight on the guidelines range. United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008) (explaining that, unjustified reliance on any one section
3553(a) factor may indicate an unreasonable sentence, but that the decision on
how to weigh the factors is within the district court’s discretion).
The district court abused no discretion in imposing a guidelines sentence;
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and Duarte-Cuautle has not carried his burden of showing that his sentence is
unreasonable. See Talley, 431 F.3d at 788.
AFFIRMED.
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