United States v. Roberto Hernandez ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 09, 2010
No. 09-16238 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-20160-TP-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 9, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Roberto Hernandez appeals his six-month sentence, imposed after he
violated the terms of his supervised release. This sentence reflected the district
court’s concerns regarding the circumstances of Hernandez’s arrest, was imposed
after consideration of the parties’ arguments, and was within the guidelines range.
Accordingly, the sentence was not outside the range of reasonable sentences
dictated by the facts by this case. Accordingly, we AFFIRM.
BACKGROUND
On 5 March 2008, Hernandez was sentenced to a term of imprisonment
followed by three years of supervised release for violating 18 U.S.C. § 371,
conspiracy to commit access device fraud, and 18 U.S.C. § 1029(a)(1), access
device fraud. R1-1 at 10-12. Hernandez’s term of supervision began on 10
December 2008. See R1-2 at 1. On 9 September 2009, a probation officer
requested a summons and a modification of the conditions or term of supervision,
alleging that Hernandez violated the terms of his supervised release, as follows: (1)
by failing to refrain from a violation of the law by committing the offense of
resisting arrest without violence (“Count 1”); (2) by failing to notify the probation
officer within 72 hours of being arrested (“Count 2”); and (3) by failing to work
regularly at a lawful occupation (“Count 3”). Id. at 1-2. The probation officer
recommended that Hernandez’s conditions of supervision be modified by requiring
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Hernandez to reside at and participate in a residential re-entry center for up to 180
days. Id. at 2. Hernandez admitted guilt as to Counts 2 and 3. R2 at 2-4.
As to Count 1, the district court heard testimony from Juan Amaro, a Florida
police detective. Id. at 11-12. On 21 August 2009, Amaro was off duty, but
working as a guard for SunTrust Bank in his full police uniform. Id. at 12-13. He
heard over the radio that someone snatched a purse from an elderly woman at the
mall across the street from the bank. Id. at 13. Amaro exited the bank in response
and saw a gentleman fitting the description of the subject who was running away
from another gentleman. Id. at 14. Amaro ran after the suspect, identified himself
as a police officer, and ordered the suspect to stop. Id. Amaro eventually caught
up to the suspect, who he identified as Hernandez, and arrested him. Id. at 14-15.
Amaro testified that Hernandez had approximately $1,300 in cash when he was
arrested. Id. at 15.
The district court initially found Hernandez not guilty of Count 1 because it
mistakenly believed that Count 1 alleged that he committed robbery. See id. at 22-
23. Even though it was troubled by the accusation that Hernandez stole a purse,
the district court acknowledged that it did not hear any evidence of that offense.
See id. at 10, 22-23. However, after realizing that Count 1 was for resisting arrest
without violence, the district court found Hernandez guilty based on Amaro’s
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testimony. Id. at 23. Hernandez objected to the district court’s finding regarding
Count 1. Id. at 23-24.
Hernandez’s guidelines range was between three and nine months’
imprisonment. Id. at 19. The government recommended a sentence within the
guidelines range. Id. at 4. The probation officer recommended 180 days in a
residential program. Id. at 5. Hernandez asked the court to consider the fact that
the probation officer’s position was originally a modification, but Hernandez, who
was uncounseled at the time, chose to appear before the district court rather than
take the probation officer’s recommendation. Id. at 17-18. Hernandez also
indicated that the state charge of resisting arrest was still pending. Id. at 18.
The court subsequently sentenced Hernandez to 6 months’ imprisonment
followed by 30 months on supervised release. Id. at 19; see also R1-12. The court
“carefully considered the statements of all the parties and the information
contained in the violation report and the testimony of Detective Amaro.” R2 at 19.
The court was troubled that, according to the violation report, Hernandez had
$1,361 on his person at the time of his arrest. Id. at 19-20. The court indicated that
this was a lot of money for someone who was not employed and who owed a
$7,500 fine from his prior convictions. See id. at 9, 21-22.
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II. DISCUSSION
On appeal, Hernandez argues that his sentence was unreasonable because (1)
the probation officer recommended a modification, and (2) the district court relied
on unproven charges that were still pending in state court. He argues that the
appropriate remedy in his case was a modification, so, because he chose to go
before the district court rather than take the probation officer’s recommendation, he
should not be jailed for this decision. He contends that the sentence imposed was
greater than necessary to comply with the statutory goals of sentencing.
“Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). We review a
sentence imposed upon the revocation of supervised release for reasonableness. Id.
at 1106-07. Although plain error applies where the defendant has failed to raise
issues below, see United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005), we have not applied this to an inquiry concerning the reasonableness of a
sentence. However, it is unnecessary to decide if plain error applies in this case
because Hernandez’s arguments fail under either standard.
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The party challenging the reasonableness of the sentence bears the burden
of establishing that the sentence is unreasonable in light of both the record and the
§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
The relevant § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed . . . treatment;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range . . . ; and
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.
18 U.S.C. § 3553(a). The sentence imposed must be “sufficient, but not greater
than necessary,” to comply with the purposes of sentencing as set forth in §
3553(a)(2). Id. We ordinarily expect a sentence within the advisory guidelines
range to be reasonable. Talley, 431 F.3d at 788.
The reasonableness inquiry is a two-step process. United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir. 2008). First, we look at whether the district court
committed any significant procedural errors and then at whether the sentence is
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substantively reasonable under the totality of the circumstances. Id. Procedural
errors include a district court failing to calculate, or improperly calculating, a
defendant’s guideline range; treating the guidelines as mandatory; failing to
consider the § 3553(a) factors; choosing a sentence based on clearly erroneous
facts; or failing to adequately explain its chosen sentence. Id. A sentence may be
substantively unreasonable if it does not achieve the purposes of sentencing as
stated in § 3553(a). Id. at 1191. We will reverse a sentence only when the district
court commits “a clear error of judgment . . . by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Id.
As an initial matter, even though Hernandez objected below, he does not
challenge on appeal the district court’s finding that he committed the alleged
violation in Count 1. Accordingly, he has abandoned this argument. See United
States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating that when a
defendant fails to offer argument on an issue, it is abandoned). In addition,
Hernandez has abandoned any argument pertaining to the procedural
reasonableness of his sentence because he did not offer any argument on that issue,
either. Id.
Hernandez failed to establish that his six-month sentence was substantively
unreasonable. The district court, taking into account the totality of the
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circumstances, has broad discretion to craft a sentence sufficient, but not greater
than necessary, to satisfy the purposes of criminal punishment as set forth in §
3553(a)(2). Here, the district court considered the parties’ arguments, the violation
report, the testimony of the arresting officer, and the circumstances of Hernandez’s
arrest before it ultimately imposed a within-guidelines sentence. Although
Hernandez argues that the district court relied on an unproven charge of resisting
arrest then-pending in state court, the district court did not rely on the unproven
charge – it relied on Amaro’s testimony regarding the circumstances of the arrest.
R2 at 19. Hernandez suggests that he is being punished for choosing to be appear
before a district court instead of taking the probation officer’s recommendation for
a modification. That Hernandez may have received the probation officer’s
recommendation through a different course of action does not change the
reasonableness of the sentence ultimately imposed by the district court. The fact
that it was unconvinced by the probation officer’s recommendation in favor of 180
days in a residual program does not mean that it abused that discretion. See Talley,
431 F.3d at 788. Rather, the district court had a range of sentences to choose from,
and the six-month sentence does not fall outside that range of reasonable sentences
dictated by the facts of this case. Pugh, 515 F.3d at 1191.
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III. CONCLUSION
Because the court properly considered all of the appropriate facts and
arguments and imposed a sentence within the guidelines range, we conclude that
the sentence imposed upon Hernandez was reasonable.
AFFIRMED.
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