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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14079
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
J. SANTOS MORENO-SALAZAR,
a.k.a. Oscar Gutierrez,
a.k.a. Santos Moreno,
a.k.a. Eduardo Moreno-Salazar,
Defendant-Appellant.
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____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00087-TFM-N-1
____________________
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, J. Santos Moreno-Salazar appeals his
36-month sentence for illegal reentry. Moreno1 argues that his
sentence is substantively unreasonable. After careful review, we
affirm.
I. FACTUAL BACKGROUND
A. Offense Conduct 2
On April 17, 2021, Moreno was arrested by the Foley,
Alabama, Police Department and booked for driving under the
influence of alcohol (“DUI”). Moreno told the police his name
was Oscar Gutierrez, and he was booked under this alias. While
he was in custody, Immigration and Customs Enforcement
(“ICE”) ran Moreno’s fingerprints in criminal and immigration
1 In his brief on appeal, the appellant shortens his full name to “Moreno.”
Accordingly, we do the same.
2 The description of Moreno’s offense conduct is drawn from the factual
proffer contained in Moreno’s plea agreement.
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21-14079 Opinion of the Court 3
databases, which revealed his true identity and returned a
“removed alien” alert along with his criminal history.
The records showed that Moreno was removed to Mexico
on October 9, 2008, and on April 16, 2013. Prior to the 2013
removal, Moreno was arrested in Florida for the crime of “hit and
run” and later convicted of leaving the scene of a crash involving
personal injury.
As of April 2021, Moreno had not filed a claim or petition
that would have allowed him to enter or remain in the United
States legally. In April 2021, Moreno did not have permission
from the U.S. Attorney General or the Secretary of the
Department of Homeland Security to be found voluntarily in the
United States.
As to Moreno’s April 2021 DUI charge, an individual called
the police after observing Moreno’s car swerving into oncoming
traffic. The responding officer observed that Moreno was
unsteady on his feet and slurred his speech. Moreno denied he
had been drinking and refused to take a breathalyzer test or to
perform field sobriety tests. The charges were later nolle prossed.
B. Indictment and Guilty Plea
In May 2021, an indictment charged Moreno with one
count of illegal reentry, in violation of
8 U.S.C. § 1326(a), (b)(1).
Pursuant to a plea agreement, Moreno pled guilty. The
district court accepted his plea and adjudicated him guilty of
illegal reentry.
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C. Presentence Investigation Report (“PSI”)
Moreno’s PSI assigned him a base offense level of 8. His
base offense level of 8 was: (1) increased by eight levels because
Moreno committed a felony before the first time he was ordered
removed; and (2) decreased by three levels for acceptance of
responsibility, resulting in a total offense level of 13.
The PSI assigned three criminal history points to Moreno’s
2011 Florida conviction for leaving the scene of a crash involving
personal injury. It listed seven other adult convictions but did not
assign criminal history points to those convictions because they
were more than 15 years old. See U.S.S.G. § 4A1.2(e)(3). Those
seven convictions were: (1) four DUI convictions, (2) disorderly
intoxication, (3) using a firearm while under the influence of
alcohol, and (4) battery–touch or strike. Moreno’s three criminal
history points resulted in a criminal history category of II.
Moreno’s total offense level of 13 and criminal history
category of II yielded an advisory guidelines range of 15 to 21
months. The statutory maximum sentence was ten years.
The PSI stated that Moreno reported abusing alcohol in the
past and stated that he had not consumed alcohol in ten years.
He denied that he was intoxicated at the time of his arrest on
April 17, 2021. He stated that his stomach was hurting him,
which caused him to swerve while driving.
The PSI highlighted Moreno’s criminal history category as
a factor that might warrant departure under U.S.S.G.
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§ 4A1.3(a)(1), noting that the court could consider “whether or
not the defendant’s criminal history category adequately reflects
the defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes.”
Moreno did not object to the PSI.
D. Sentencing Hearing
At sentencing, the district court adopted the PSI’s
calculation of Moreno’s 15-to-21–month advisory guidelines
range. The district court stated that it planned to impose an
upward departure because of Moreno’s repeated criminal history
of driving under the influence, including the driving under the
influence charge that brought him into custody this time.3 It
stated that those convictions, as well as the other convictions that
did not incur criminal history points, were “indicative that
[Moreno’s] overall conduct and demeanor while in this country
unlawfully is beyond just a person who is here merely trying to
make a living.”
Moreno argued that, aside from the most recent charge,
those convictions occurred “quite a while back,” which was why
the guidelines range came out where it did.
3 Although the district court stated that it was imposing an upward
departure, its other comments at sentencing and the parties’ substantive
reasonableness arguments on appeal efffectively treat the 36-month sentence
as an upward variance, and we will refer to it as such.
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Next, the district court gave Moreno the chance to
allocute. Moreno apologized to the court and to the government
for being in the country illegally. Moreno stated that he was
ashamed for having lied, and he did so because it was difficult in
Mexico and because his father lives in the United States. Moreno
stated that he made mistakes when he was younger. He
endangered his life and the lives of others, and he was remorseful
for that.
Moreno stated that he had not been drinking when he was
arrested on April 17, 2021. That day, he had eaten spicy food and
was driving home with terrible heartburn and was not paying
attention or holding the steering wheel with both hands as he
should have been. After his arrest, the police tested his alcohol
level at the jail and the result was zero. Moreno stated that it had
been more than eleven years since he last took a sip of alcohol.
The district court stated that, even if Moreno was not
under the influence at the time of his most recent arrest, the
circumstances still indicated that he voluntarily chose to drive
even though he could not do so safely. It stated that it had no
problem with the application of the guidelines in a typical case.
But Moreno’s case was unique because he had a number of
convictions for driving under the influence, which was also the
reason he was stopped on this occasion. Driving under the
influence presented a serious danger to the public. And on this
latest occasion Moreno again had driven “in such a way on a rainy
night where somebody could have been hurt.” The district court
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determined that a within-guidelines sentence would not be
appropriate because Moreno had posed a danger to the
community many times, including in the most recent incident.
The district court sentenced Moreno to a term of 36
months’ imprisonment. It found that the guidelines range was
not appropriate to the facts and circumstances of this case and
would not provide a reasonable sentence. It further found that
the 36-month sentence addressed the seriousness of the offense
and the sentencing objectives of punishment, deterrence, and
incapacitation.
Moreno objected that 36 months was more than twice the
low end of the guidelines and stated his belief that it was an abuse
of discretion to impose a sentence so far above the guidelines
range, especially after the court had heard his version of what
happened regarding his most recent arrest.
The district court stated that Moreno had a lengthy history
of driving under the influence and that, at a minimum, he was
driving recklessly on the 2021 occasion. It determined that the
sentence was appropriate.
This is Moreno’s appeal.
II. DISCUSSION
Moreno argues that his 36-month sentence is substantively
unreasonable. We review the reasonableness of a sentence under
a deferential abuse-of-discretion standard employing a two-step
process. United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir.
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2008). First, we examine whether the district court committed
any significant procedural error.
Id. Because Moreno claims no
procedural error, we move to the second step of determining
whether his sentence is substantively reasonable in light of the
18 U.S.C. § 3553(a) factors and the totality of the circumstances. 4
Id. The party challenging the sentence—here, Moreno—carries
the burden of showing that the sentence is substantively
unreasonable.
Id. at 1189.
This Court will vacate a sentence on substantive
reasonableness grounds 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) (quotation marks omitted).
A district court may attach great weight to one § 3553(a) factor
over others, and the weight it attaches to any specific factor is
committed to its sound discretion. United States v. Rosales-
Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015).
4 The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (3) the need for deterrence; (4) the
need to protect the public from the defendant’s future crimes; (5) the
advisory guidelines range; and (6) the need to avoid unwarranted sentence
disparities.
18 U.S.C. § 3553(a).
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A major upward variance from the advisory guideline
range requires a justification that is “sufficiently compelling to
support the degree of the variance.” Irey,
612 F.3d at 1196
(quotation marks omitted). This Court has upheld large upward
variances based solely on the defendant’s extensive criminal
history. See United States v. Osorio-Moreno,
814 F.3d 1282, 1288
(11th Cir. 2016) (holding that a 120-month sentence was
reasonable because the defendant had 20 prior convictions and
the guidelines range of 51-63 months understated his criminal
history). Further, an upward variance well below the statutory
maximum sentence indicates that a sentence is reasonable.
United States v. Riley,
995 F.3d 1272, 1278 (11th Cir. 2021).
After careful review, we cannot say that Moreno’s
36-month sentence is substantively unreasonable. Although the
district court emphasized Moreno-Salazar’s criminal history, it
was entitled to place more weight on this factor than the
Guidelines did. See Osorio-Moreno, 814 F.3d at 1287. Moreno
had seven convictions, including four DUI convictions, that were
not factored into his criminal history category, and his present
offense arose after he was charged with another DUI. Although
Moreno denied drinking on that occasion, he did not object to the
PSI’s description of his April 2021 arrest, including that he was
seen swerving into oncoming traffic. The district court
considered Moreno’s version of events surrounding his April 2021
arrest and found that, even if Moreno was not drunk, his reckless
driving once again supported the sentence.
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The district court also acknowledged Moreno’s objection
that most of his convictions occurred more than 15 years ago, but
it found the convictions still indicated a pattern of dangerous
behavior. The court acted within its wide discretion in finding
that the guidelines range understated Moreno’s criminal history
and his danger to the public. Finally, the district court’s upward
variance was well below the ten-year statutory maximum, which
further indicates reasonableness. See Riley, 995 F.3d at 1278.
Moreno has not shown that the district court’s sentence
was “outside the range of reasonable sentences dictated by the
facts of the case” or that its upward variance lacked a “sufficiently
compelling” justification. See Irey,
612 F.3d at 1190, 1196.
Accordingly, we affirm.
AFFIRMED.
