United States v. Roberto Gonzalez ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 9, 2007
No. 06-14045 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00444-CR-T-26-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO GONZALEZ,
Defendant-Appellant.
________________________
No. 06-14046
Non-Argument Calendar
________________________
D.C. Docket No. 98-00144-CR-T-26-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO GONZALEZ,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(February 9, 2007)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
On December 2, 1997, the district court accepted Roberto Gonzalez’s plea of
guilty, made pursuant to a plea agreement, to a charge of conspiracy to distribute
cocaine, in violation of 21 U.S.C. § 846. Gonzalez failed to appear for sentencing,
and on April 8, 1998, a grand jury indicted him under 18 U.S.C. § 3146(a)(1).
Gonzalez was arrested on March 24, 2006. On April 19, 2006, he pled
guilty to the failure-to-appear charge. On July 7, 2006, the district court sentenced
him in both cases at the low end of the Guidelines range (of 63 to 78 months’
imprisonment) to a total of 63 months’ imprisonment – 62 months on the cocaine
charge and one month on the failure-to-appear charge. He now appeals his
sentences, contending that the district court erred in refusing to reduce his base
offense level for acceptance of responsibility under U.S.S.G. § 3E1.1 and in
imposing sentences that are unreasonable in light of the factors outlined in 18
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U.S.C. § 3553(a).
We review the district court’s determination as to acceptance of
responsibility for clear error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th
Cir. 2005). The sentencing judge is entitled to “great deference” on review, so “we
will not set aside a district court’s determination that a defendant is not entitled to a
§ 3E1.1 adjustment unless the facts in the record clearly establish that the
defendant has accepted responsibility.” Id. at 1022-23. The burden of
demonstrating acceptance of responsibility is on the defendant. Id. at 1023.
“Although a guilty plea can constitute significant evidence of acceptance of
responsibility, it may be outweighed by conduct of the defendant inconsistent with
an acceptance of responsibility.” Id.
The Guidelines state that “[c]onduct resulting in an enhancement under
§ 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily
indicates that the defendant has not accepted responsibility for his criminal
conduct.” U.S.S.G. § 3E1.1, comment (n.4). A defendant who receives an
enhancement for obstruction of justice is entitled to an adjustment for acceptance
of responsibility in only exceptional cases. Id.; United States v. Amedeo, 370 F.3d
1305, 1321 (11th Cir. 2004).
Although Gonzalez initially took responsibility for his role in the cocaine
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conspiracy by pleading guilty, he did not appear at his sentencing hearing for that
conviction and remained a fugitive for almost eight years. Moreover, the district
court explicitly found that Gonzalez’s case was not an exceptional one that
warranted both an enhancement for obstruction of justice and a reduction for
acceptance of responsibility. In light of these circumstances and the great
deference afforded the court on § 3E1.1 adjustments, the district court did not
clearly err by denying the acceptance of responsibility adjustment.
“In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
§ 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006).
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; (5) the need to provide the defendant with educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the advisory
guidelines range; (8) the need to avoid unwanted sentencing disparities; and (9) the
need to provide restitution to victims. 18 U.S.C. § 3553(a). The district court need
not discuss each factor or state on the record that it has explicitly considered each
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factor. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). An
acknowledgment by the district court that it has considered the defendant’s
arguments and the § 3553(a) factors will suffice. Id.
The reasonableness review is deferential, and the burden of proving that the
sentence is unreasonable in light of the record and the § 3553(a) factors rests on the
party challenging the sentence. United States v. Wilks, 464 F.3d 1240, 1245 (11th
Cir. 2006), cert. denied, (U.S. Nov. 27, 2006) (No. 06-7334). Although a sentence
within the Guidelines range will not be considered per se reasonable, “when the
district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Talley, 431 F.3d at 787-
88; United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006) (holding that,
while there is no “across-the-board prescription” for the appropriate deference to
give the Guidelines, a district court may have good reason to follow the Guidelines
in a particular case).
Here, in imposing Gonzalez’s sentences, the district court heard his
mitigating circumstances, such as his minimal role in the cocaine conspiracy, his
lack of a criminal record, and his health and family circumstances, all of which are
relevant to the nature and circumstances of his offenses and his history and
characteristics under § 3553(a)(1). The court reflected consideration of these
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arguments by acknowledging Gonzalez’s minimal culpability for the cocaine
conspiracy, expressing sympathy for Gonzalez in light of his age and hard work,
and choosing a total sentence at the lowest end of the Guidelines range. The
Guidelines calculations also took into account Gonzalez’s minimal role in the drug
conspiracy through a four-level downward adjustment to the base offense level.
The court considered the advisory Guidelines range, the parties’ arguments, the
available sentences, and the § 3553(a)(3) and (4) factors. The court also discussed
the need to deter others from failing to appear at their sentencing hearings, a
consideration under § 3553(a)(2)(B). Finally, the court’s recommendation that
Gonzalez receive treatment for alcohol abuse and training in English and with
computers reflects consideration of Gonzalez’s need for medical treatment and
educational and vocational training, a factor under § 3553(a)(2)(D).
In sum, the district court’s decision reflects consideration of many of the §
3553(a) factors. Although the court did not discuss each factor on the record, it is
not required to do so, and its acknowledgment that it considered all of the factors is
sufficient. Talley, 431 F.3d at 786. Given the record before us, Gonzalez has not
met his burden of showing that the court imposed unreasonable sentences.
AFFIRMED.
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