USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10456
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO GARCIA-VELAZQUEZ,
a.k.a. Eduardo Garcia Jeronimo,
a.k.a. Eduardo Garcia-Velasquez,
Defendant-Appellant.
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 2 of 13
2 Opinion of the Court 22-10456
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:18-cr-00351-TFM-B-1
____________________
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit
Judges.
PER CURIAM:
Eduardo Garcia-Velazquez appeals his 12-month imprison-
ment sentence, an upward variance from the advisory guideline
range of 0-6 months, for illegal reentry to the United States after
previous removals. Garcia-Velazquez raises two arguments. First,
he asserts that the sentence is substantively unreasonable because,
in weighing the
18 U.S.C. § 3553(a) sentencing factors, the district
court allegedly placed too much weight on his pending driving-un-
der-the-influence (“DUI”) charge in state court. Second, he con-
tends that, after the district court imposed sentence, it committed
plain error in making comments to the arresting officer about Gar-
cia-Velazquez’s pending DUI charge. After careful review, we af-
firm.
I.
Garcia-Velazquez was arrested by the Fairhope Police De-
partment in Alabama on October 8, 2018, for DUI. A fingerprints
cross-check revealed that Garcia-Velazquez had been previously
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 3 of 13
22-10456 Opinion of the Court 3
deported in 2013 and 2016 and was not lawfully present in the
United States. A grand jury indicted him for being found unlaw-
fully in the United States after deportation, in violation of
8 U.S.C.
§ 1326(a).
Garcia-Velazquez pled guilty to the one count of illegal
reentry after deportation. Neither the government nor Garcia-Ve-
lazquez objected to the presentencing investigation report (“PSR”),
which recommended an offense level of 6 and a criminal-history
score of I, corresponding to a sentencing range of 0-6 months. The
court adopted the PSR’s factual findings as its own.
When Garcia-Velazquez first appeared for sentencing, the
district court continued the hearing because it wanted more infor-
mation about the DUI arrest. Sentencing resumed about a month
later, and the court heard testimony from the arresting officer
about the DUI arrest. The officer testified that he was responding
to a dispatch call about a car leaving the scene of an accident. He
located the vehicle and observed it swerving on the road. When
he pulled the car over, Garcia-Velazquez was driving, and the of-
ficer detected the smell of alcohol and saw opened containers of
alcohol. The officer then obtained breath samples from Garcia-Ve-
lazquez. They tested over the legal limit.
Garcia-Velazquez argued that the court’s consideration of
an unadjudicated DUI charge put him in a difficult position be-
cause, he argued, he was unable to testify without risking self-in-
crimination in the pending state proceeding. Defense counsel in-
formed the court that Garcia-Velazquez denied being in an
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 4 of 13
4 Opinion of the Court 22-10456
accident before encountering the officer. Counsel also argued that
the charge was already accounted for by his guideline range.
The district court ultimately sentenced Garcia-Velazquez to
12 months’ imprisonment. It arrived at this sentence after impos-
ing an upward variance because Garcia-Velazquez was twice de-
ported previously and, on this occasion, arrested for drunk driving
at the time he was found unlawfully in the country. Garcia-Ve-
lazquez objected to the sentence.
At the conclusion of the sentencing hearing, the court com-
mented to the present police officer,
In addition, I would say, Officer, I know that you do
have the pending DUI charge. Oftentimes I think lo-
cal prosecutors and judges decide for whatever rea-
son that the case has been dealt with by federal au-
thorities and maybe they dismiss it or they run it con-
currently. I hope that you don’t. And I would ask that
you ask the prosecutor not to dismiss it and to ask the
judge to punish it as he sees fit, if he is convicted, after
a trial or plea. I’m a taxpayer too and I don’t like to
have my tax dollars spent any more than anybody
else. But when people drive under the influence, they
can kill people. And I personally feel like we ought to
pay to keep people like that separated from the rest of
the law-abiding public. But that’s a decision for the
prosecutor and for the judge in that case and a jury, if
he decides to go to trial.
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 5 of 13
22-10456 Opinion of the Court 5
On appeal, Garcia-Velazquez argues that his sentence is sub-
stantively unreasonable for several reasons. He argues the court’s
comments at sentencing evince a bias against DUI offenders that
led it to improperly weigh the relevant
18 U.S.C. § 3553(a) sentenc-
ing factors. He also contends the sentence was greater than neces-
sary to account for the § 3553(a) factors and that the court’s unjus-
tified reliance on an unadjudicated DUI charge in state court led it
to ignore other relevant factors, including the benefits conferred by
the plea agreement.
II.
We address the substantive reasonableness of the sentence
first. In so doing, we review for abuse of discretion. United States
v. Trailer,
827 F.3d 933, 935 (11th Cir. 2016). When examining the
substantive reasonableness of a sentence, we consider the totality
of the circumstances and the § 3553(a) factors. Id. at 936. The party
challenging the sentence must show that it is unreasonable, consid-
ering the record and the § 3553(a) factors. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
The district court must impose a sentence that is sufficient,
but not greater than necessary, to comply with the purposes of sen-
tencing listed in § 3553(a)(2), including the need to reflect the seri-
ousness of the offense, provide just punishment, and afford ade-
quate deterrence to criminal conduct.
18 U.S.C. § 3553(a)(2). The
court must also consider factors such as the nature and circum-
stances of the offense, the history and characteristics of the defend-
ant, and the guideline range.
Id. § 3553(a)(1), (4). A district court
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 6 of 13
6 Opinion of the Court 22-10456
need not address every factor; rather, simply acknowledging that it
considered the § 3553(a) factors and the parties’ arguments is usu-
ally sufficient. United States v. Tinker,
14 F.4th 1234, 1241 (11th
Cir. 2021).
The district court abuses its discretion if, among other
things, it commits a clear error of judgment when considering the
proper factors. United States v. Irey,
612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). The court’s unjustified reliance on a single factor
may be a symptom of an unreasonable sentence. United States v.
Kuhlman,
711 F.3d 1321, 1327 (11th Cir. 2013); United States v.
McQueen,
727 F.3d 1144, 1161 (11th Cir. 2013) (holding that a sen-
tence was substantively unreasonable where the district court fo-
cused “virtually exclusively” on one factor and nearly abandoned
consideration of other relevant factors). Nonetheless, the district
court may attach great weight to a single factor. See Gall v. United
States,
552 U.S. 38, 57 (2007) (explaining that the district court
“quite reasonably attached great weight to the fact that Gall volun-
tarily withdrew from the conspiracy”). The weight given to any
§ 3553(a) factor is left to the sound discretion of the district court,
and we will not substitute our own judgment by reweighing these
factors. Kuhlman, 711 F.3d at 1327.
When the district court decides to vary from the guideline
range, the justification for a variance must be “sufficiently compel-
ling to support the degree of the variance.” Irey,
612 F.3d at 1187
(quoting Gall,
552 U.S. at 50). But there is no presumption that a
sentence outside the Guidelines is unreasonable.
Id. Instead, we
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 7 of 13
22-10456 Opinion of the Court 7
give “due deference” to the district court’s assessment that the §
3553(a) factors justify the variance. Id. A sentence imposed well
below the statutory maximum is an indicator of reasonableness.
United States v. Stanley,
739 F.3d 633, 656 (11th Cir. 2014). The
statutory maximum prison sentence for the unlawful reentry of a
previously removed alien is two years.
8 U.S.C. § 1326(a).
There are no limitations on the information a sentencing
court may receive and consider about the background, character,
and conduct of the person convicted of an offense,
18 U.S.C. § 3661,
provided it is reliable and, if in dispute, proved by a preponderance
of the evidence. See United States v. Washington,
714 F.3d 1358,
1362 (11th Cir. 2013). For instance, the sentencing court can con-
sider uncharged and acquitted conduct when determining the ap-
propriate sentence. United States v. Maitre,
898 F.3d 1151,
1160 n.6 (11th Cir. 2018). Even if a defendant’s conduct is “com-
pletely unrelated to his offense of conviction,” it may be considered
as part of his history and characteristics and other factors un-
der § 3553(a) and, therefore, it may be considered when imposing
a variance. United States v. Overstreet,
713 F.3d 627,
638 n.14 (11th Cir. 2013).
Here, the district court did not abuse its discretion varying
upward from an advisory guideline sentence of 0-6 months and in
imposing a 12-month sentence. Garcia-Velazquez’s contention
that the district court unjustifiedly focused solely on the DUI con-
duct and improperly weighed the § 3553(a) factors is unconvincing.
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 8 of 13
8 Opinion of the Court 22-10456
The district court adequately justified its upward variance
with reference to the § 3553(a) factors. The court is not required
to address every § 3553(a) factor but it did so satisfactorily here.
The court found that the advisory guideline range was not appro-
priate to the “facts and circumstances” of this case, and in view of
the particular danger of driving under the influence of alcohol, im-
posed a sentence that properly addressed the “[offense’s] serious-
ness[] and the sentencing objectives of punishment, deterrence,
and incapacitation.” The judge explained that driving under the
influence is an “incredibly dangerous thing” that “puts the public
[and] property at risk.” And he reasoned that Garcia-Velazquez’s
sentence does not treat similarly situated defendants differently be-
cause the DUI conduct is an aggravating factor that differentiates
Garcia-Velazquez from other illegal-reentry defendants. The court
thus expressed its justification for the upward variance in its weigh-
ing of the § 3553(a) factors.
As to Garcia-Velazquez’s argument that the district judge’s
consideration of pending charges violated his Fifth Amendment
right by forcing him to either testify or live with the district court’s
view of the charges, we disagree. First, the district court heard tes-
timony from the arresting officer, and defense counsel cross-exam-
ined him. At no point did defense counsel ask any questions of the
officer that called into question his testimony that Garcia-Ve-
lazquez’s breath tested above the legal limit for alcohol, even
though Garcia-Velazquz provided only a “partial sample [and] did
not blow to the full extent that he was supposed to.” And second,
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 9 of 13
22-10456 Opinion of the Court 9
defense counsel proffered Garcia-Velazquez’s position on the
pending charges, and she said that he “wholeheartedy denie[d] be-
ing in an accident prior to the officer’s encounter with him.” At no
point did she ever challenge the evidence that Garcia-Velazquez
was driving while under the influence.
On this record, the district court acted within its discretion
in taking into account the pending DUI charge. See
18 U.S.C. §
3661 (permitting district courts to consider, without limitation,
“the information concerning the background, character, and con-
duct of a person convicted of an offense . . . for the purpose of im-
posing an appropriate sentence.”).
The district court also did not unjustifiedly focus solely on
the DUI conduct. Rather, the court also accounted for Garcia-Ve-
lazquez’s previous deportations. Thus, while the district court
placed “great weight” on the Garcia-Velazquez’s DUI arrest, the
court did not unjustifiedly rely on a single factor.
Nor did the district court fail to consider other relevant fac-
tors. The court indicated it factored Garcia-Velazquez’s mitigating
circumstances into its consideration. For example, the court noted
that Garcia-Velazquez was in Alabama to earn money to send to
his ailing parents in Mexico and that he has family in the country.
The judge sympathized, expressing that he might have done the
same in those shoes. Still, though, the court weighed the factors
and decided that the aggravating circumstances outweighed the
mitigating ones. While a sentence must not be greater than neces-
sary to comply with the factors listed under § 3553(a)(2), the district
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 10 of 13
10 Opinion of the Court 22-10456
court is owed significant deference on this determination. See Irey,
612 F.3d at 1194–95. We also note that the sentence is half the stat-
utory maximum of two years, an indicator of reasonableness. Stan-
ley, 739 F.3d at 656.
III.
Next, we turn to Garcia-Velazquez’s claim that the district
court plainly erred in its comments to the arresting officer about
Garcia-Velazquez’s DUI arrest. We review for plain error when,
as here, a defendant fails to object to a judge’s comments at sen-
tencing. United States v. Rodriguez,
627 F.3d 1372, 1380 (11th Cir.
2010). To establish plain error, the defendant must show (1) an
error occurred; (2) the error was plain; and (3) the error affected his
substantial rights. United States v. Margarita Garcia,
906 F.3d 1255,
1266. If the defendant can make this showing, we may then exer-
cise our discretion “to notice a forfeited error, but only if (4) the
error seriously affect[ed] the fairness of the judicial proceedings.”
Id. at 1266–67. An error is plain “when it flies in the face of either
binding precedent or the explicit language of a statute or rule.”
United States v. Bankston,
945 F.3d 1316, 1318 (11th Cir. 2019) (ci-
tation and quotation marks omitted).
In the context of recusals under
28 U.S.C. § 455(a), the Su-
preme Court has held that judicial remarks during the course of a
trial that are critical, disapproving, or even hostile to a party do not
ordinarily support a challenge that the judge is biased. Liteky v.
United States,
510 U.S. 540, 541, 555 (1994). That said, though,
such remarks will support a challenge if “they reveal such a high
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 11 of 13
22-10456 Opinion of the Court 11
degree of favoritism or antagonism as to make fair judgment im-
possible.”
Id. at 555. For example, the Supreme Court noted a case
involving German-American defendants where the district court
was alleged to have said, “One must have a very judicial mind, in-
deed, not [to be] prejudiced against the German-Americans be-
cause their hearts are reeking with disloyalty.”
Id. (quotation
marks omitted).
Under the Code of Conduct for United States Judges, “[a]
judge should not make public comment on the merits of a matter
pending or impending in any court”; but this limitation “does not
extend to public statements made in the course of the judge’s offi-
cial duties.” Code of Conduct for United States Judges, Canon
3(A)(6) (2019).
Here, Garcia-Velazquez cannot show plain error. For start-
ers, “where the explicit language of a statute or rule does not spe-
cifically resolve an issue, there can be no plain error where there is
no precedent from the Supreme Court or this Court directly resolv-
ing it.” United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th
Cir. 2003). Garcia-Velazquez relies on Liteky, but the comments
in Liteky were nothing like the district judge’s remarks here. In
Liteky, the district judge stereotyped the defendant because of his
cultural heritage. Here, though, the district judge did no such
thing. He noted the damage and harm drunk drivers can inflict.
That is a statement of fact, not a stereotype. And significantly for
purposes of considering the Code of Conduct for United States
Judges, the judge did not comment on the merits of the charge
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 12 of 13
12 Opinion of the Court 22-10456
pending against Garcia-Velazquez. On the contrary, he expressly
qualified his comments, opining that Garcia-Velazquez should be
punished “if he is convicted.” In short, Garcia-Velazquez cannot
point to a rule or statute that specifically precludes the district
judge’s remarks, and no precedent of our Court or the Supreme
Court shows the district judge’s comments constitute plain error.
Garcia-Velazquez appears to have relatedly attempted to
raise a claim that the district court erred under United States v.
Jones,
899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other
grounds by United States v. Morrill,
984 F.2d 1136, 1137 (11th Cir.
1993) (en banc), by allegedly failing to “elicit fully articulated objec-
tions . . . to the court’s ultimate findings of fact and conclusions of
law” after it “states its factual findings, applies the guidelines, and
imposes sentence.”
But Garcia-Velazquez failed to present arguments in support
of this claim and referenced it only in the background of a different
argument. So Garcia-Velazquez abandoned the issue. As we have
explained, an abandoned issue can either be waived or forfeited.
United States v. Campbell,
26 F.4th 860, 872 (11th Cir. 2022) (en
banc) (noting that jurists interchangeably use the words “waived,”
“forfeited,” and “abandoned”). Forfeiture is the failure to make the
timely assertion of a right; waiver is the intentional relinquishment
or abandonment of a known right. See
id. (stating the practical ef-
fect is that forfeited issues can be raised sua sponte in extraordinary
circumstances, while waived issues cannot). To avoid forfeiting an
issue, an appellant’s initial brief must plainly and prominently raise
USCA11 Case: 22-10456 Date Filed: 07/15/2022 Page: 13 of 13
22-10456 Opinion of the Court 13
it by devoting a discrete section of his argument to the claim;
simply stating that an issue exists, without further argument or dis-
cussion, constitutes forfeiture. See United States v. Montenegro,
1
F.4th 940, 944 n.3 (11th Cir. 2021). A defendant also forfeits an ob-
jection to his sentence if he “makes only passing references to it
that are background to other arguments or [are] buried within
other arguments, or both.” United States v. Corbett,
921 F.3d 1032,
1043 (11th Cir. 2019) (quotation marks omitted). As we have ex-
plained, here, Garcia-Velazquez has abandoned any Jones claim.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.
