[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 18, 2010
Nos. 09-13380 and 09-13385 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 02-00593-CR-TWT-1
and 09-00212-CR-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CELSO HERNANDEZ-CASA,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(March 18, 2010)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
In this consolidated appeal, Celso Hernandez-Casa challenges the
consecutive sentences imposed upon his conviction for illegal re-entry into the
United States after previously having been deported as an aggravated felon, in
violation of
8 U.S.C. § 1326(a) and (b)(2), and the revocation of the supervised
release he was serving at the time, pursuant to
18 U.S.C. § 3583(e)(3). Upon
review, we conclude the sentences imposed were reasonable and therefore affirm.
In 1997, Hernandez-Casa pleaded guilty in federal court to three counts of
drug-trafficking, received a 31-month sentence, and was subsequently deported. In
2002, however, he was arrested in Georgia and pleaded guilty to illegally re-
entering the United States after previously having been deported. He was
sentenced to 46 months’ imprisonment and 36 months’ supervised release. In
2006, Hernandez-Casa was released from custody and again deported.
In November 2008, Hernandez-Casa was arrested in Tennessee for driver’s
license violations. As a result, the district court approved a petition for an arrest
warrant and an order to show cause why Hernandez-Casa’s supervised release
should not be revoked. While the revocation case was pending, the government
filed an information charging Hernandez-Casa with illegal re-entry. Hernandez-
Casa waived his right to an indictment and pleaded guilty.1
With regard to Hernandez-Casa’s substantive offense of illegal re-entry, the
1
In addition to the arrest in Tennessee, Hernandez-Casa was arrested in Georgia for
driver’s license violations and his supervised release violation warrant.
2
probation officer calculated the guidelines range as follows: Hernandez-Casa had a
base offense level of 8, with a 16-level enhancement for his previous aggravated
felony convictions, U.S.S.G. § 2L1.2(a) and (b)(1)(A)(i), and a 3-level reduction
for acceptance of responsibility, § 3E1.1, resulting in a total offense level of 21.
With a criminal history category of V, the advisory guidelines range was 70 to 87
months’ imprisonment. The statutory maximum term of imprisonment was 20
years. Hernandez-Casa made no objections to the calculations, but asserted that a
sentence below the guidelines range was appropriate under the
18 U.S.C. § 3553(a)
factors.
According to Hernandez-Casa, since his 2006 deportation, he had settled
himself in Mexico, had a job and family there, and was doing well. He had
returned to the United States only to take his mother back with him to Mexico so
that she could die in her home country, but he ended up staying in the United
States longer than planned because his mother became too ill to travel at that time.
At the sentencing and revocation hearing, the district court first addressed
Hernandez-Casa’s substantive offense, adopting the un-objected to guidelines
calculations. Hernandez-Casa asked the district court to sentence him to “time
served” so that he could be deported immediately to Mexico and be with his dying
mother. The government responded that Hernandez-Casa previously had been
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deported twice for felony offenses, and yet he always returned to the United States.
The government requested a sentence near the middle of the guidelines range, to
run consecutively to the sentence imposed for Hernandez-Casa’s violation of his
supervised release.
Expressing “grave doubts” about Hernandez-Casa’s story, the district court
denied the request for a sentence below the guidelines range. The court explained
that, even if it believed the story, Hernandez-Casa had been deported on two
previous occasions and already had been convicted once of illegally re-entering the
United States. In the district court’s view, these were “aggravating factors”
indicating that a sentence below the guidelines range was not appropriate.
Accordingly, the district court sentenced Hernandez-Casa to 70 months’
imprisonment. The district court explained that it imposed the low-end sentence
because “the aggravating factors that exist in the case, specifically the Defendant’s
prior criminal conduct, have already been taken into consideration in the
calculation of the guidelines range.” The court also stated that the sentence
appropriately took into consideration the
18 U.S.C. § 3553(a) sentencing factors,
“specifically the nature and circumstances of the offense, the history and
characteristics of the Defendant, the need for the sentence imposed to reflect the
seriousness of the offense and the need to avoid unwarranted sentencing
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disparities.” Hernandez-Casa objected to the district court’s denial of his motion
for a sentence below the guidelines range and to the district court’s sentence as
procedurally and substantively unreasonable.
The district court then addressed the revocation of Hernandez-Casa’s
supervised release. After Hernandez-Casa admitted the violation in the petition to
revoke his supervised release, the district court stated that it was a Grade B
violation and, with Hernandez-Casa’s original criminal history category of III, the
guidelines range was 8 to 14 months’ imprisonment. Hernandez-Casa did not
object to that guidelines calculation, but argued that his violation would have been
a Grade C violation but for the fact that he pleaded to the substantive offense
underlying it. He asked for a concurrent sentence because, even though the
Guidelines recommended a consecutive sentence, the Guidelines were not
mandatory and no additional conduct was alleged regarding his violation, other
than the substantive offense for which he had just been sentenced.
The district court sentenced Hernandez-Casa to 8 months’ imprisonment to
be served consecutively to the 70-month sentence already imposed. The district
court again explained that it sentenced Hernandez-Casa at the low-end of the
guidelines range because the guidelines range already reflected the aggravating
factors in the case. Hernandez-Casa raised the same objections he had raised
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earlier. This appeal followed.2
We review the reasonableness of a sentence, including one imposed upon
revocation of supervised release, under a deferential abuse-of-discretion standard.
United States v. Jordan,
582 F.3d 1239, 1249 (11th Cir. 2009); United States v.
Sweeting,
437 F.3d 1105, 1106-07 (11th Cir. 2006). Reasonableness review
involves a two-step process. United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir.
2008). We first look at whether the district court committed any significant
procedural error, and then at whether the sentence is substantively reasonable
under the totality of the circumstances.
Id.
A district court commits a significant procedural sentencing error if it, for
example, (1) improperly calculates the guidelines range; (2) treats the Guidelines
as mandatory; (3) fails to consider the
18 U.S.C. § 3553(a) sentencing factors;
(4) selects a sentence based on clearly erroneous facts; or (5) fails to explain the
chosen sentence adequately. Gall v. United States,
552 U.S. 38, 51 (2007).
If there is no procedural error, we then review the substantive
reasonableness of the sentence.
Id. at 51. “[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable.”
United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). A sentence is
2
After Hernandez-Casa filed a notice of appeal from both sentences, this court granted
his unopposed motion to consolidate the two cases on appeal.
6
substantively unreasonable if, under the totality of the circumstances, it fails to
achieve the purposes of sentencing listed in § 3553(a). Pugh,
515 F.3d at 1191.
“The weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo,
487 F.3d 823, 832 (11th
Cir. 2007) (quotations and alterations omitted). Moreover, we expect that a
sentence imposed within the advisory guidelines range is substantively reasonable.
Talley,
431 F.3d at 788.
With regard to revocation, after considering the relevant factors in § 3553(a),
the district court may revoke a term of supervised release and impose a sentence of
imprisonment if it “finds by a preponderance of the evidence that the defendant
violated a condition of supervised release.”
18 U.S.C. § 3583(e)(3). Upon
revocation, the district court may “require the defendant to serve in prison all or
part of the term of supervised release authorized by statute . . . without credit for
time previously served on postrelease supervision.”
18 U.S.C. § 3583(e)(3).
With regard to imposition of a consecutive sentence, “if a term of
imprisonment is imposed on a defendant who is already subject to an undischarged
term of imprisonment, the terms may run concurrently or consecutively.”
18
U.S.C. § 3584(a). “[I]n determining whether the terms imposed are to be ordered
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to run concurrently or consecutively, [the district court] shall consider . . . the
factors set forth in section 3553(a).”
18 U.S.C. § 3584(b). These provisions apply
to imprisonment terms following revocation of supervised release. United States v.
Quinones,
136 F.3d 1293, 1294-95 (11th Cir. 1998). Moreover, although U.S.S.G.
§ 7B1.3(f) is not binding, this guideline recommends that any term of
imprisonment imposed upon revocation of supervised release be made consecutive,
even if “the sentence of imprisonment being served resulted from the conduct that
is the basis of the revocation of . . . supervised release.” See United States v. Silva,
443 F.3d 795, 799 (11th Cir. 2006) (“While the district court is required to
consider the policy statements [of Chapter 7], it is not bound by them.”).
Based on a review of the record and the parties’ briefs, we conclude that
Hernandez-Casa’s sentences were procedurally and substantively reasonable.
First, the district court did not commit any procedural sentencing error. The court
correctly calculated the guideline ranges and treated the guidelines as advisory.
The court also consider the § 3553(a) factors and explained its reasoning in
imposing the specific sentences.
Second, both sentences were imposed at the low-end of the applicable
advisory guidelines ranges and were well below the statutory maximum terms of
imprisonment. Hernandez-Casa has not shown that the sentences were otherwise
8
substantively unreasonable. As a result, we
AFFIRM.
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