United States v. Saul Lopez-Parada ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 26, 2007
No. 06-15913 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-14039-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL LOPEZ-PARADA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 26, 2007)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Saul Lopez-Parada appeals his 24-month sentence imposed after he pled
guilty to illegally reentering the United States after having been deported. On
appeal, he argues that his sentence was unreasonable and that the district court
abused its discretion by sentencing him to the statutory maximum sentence, when
his advisory guideline range was two to eight months’ imprisonment. He further
contends that the court improperly relied on criminal conduct, for which he had not
been convicted, in imposing his sentence.
We review final sentences for reasonableness, and the defendant has the
burden of establishing that the sentence is unreasonable. United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). “Review for reasonableness is deferential.”
Id. Following United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005), we held that, in imposing a sentence, the district court first must
accurately calculate the defendant’s guideline range and, second, must consider the
18 U.S.C. § 3553(a) factors to determine a reasonable sentence. Talley, 431 F.3d
at 786. The sentencing court’s factual findings may be based upon facts admitted
in the guilty plea, undisputed statements in the presentence investigation report
(“PSI”), or evidence presented at the sentencing hearing. United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989). Failure to object to the PSI’s factual
allegations admits those facts for sentencing purposes. United States v. Wade, 458
F.3d 1273, 1277 (11th Cir. 2006), cert. denied, __ S. Ct. __ (U.S. Apr. 23, 2007).
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In determining whether a sentence is reasonable, the district court should be
guided by the factors set forth in § 3553(a). Talley, 431 F.3d at 786. The relevant
factors include:
(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 . . . ;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a); Booker, 543 U.S. at 259-61, 125 S.Ct. at 764-66. However,
“nothing in Booker or elsewhere requires the district court to state on the record
that it has explicitly considered each of the 3553(a) factors or to discuss each of the
3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
Rather it is sufficient, under Booker, for the district court to acknowledge that “it
has considered the defendant’s arguments and the factors in section 3553(a).”
Talley, 431 F.3d at 786. We have upheld, as reasonable, sentences above the high
end of a defendant’s advisory guideline range. See United States v. Eldick, 443
F.3d 783 (11th Cir.), cert. denied, 127 S. Ct. 251 (2006); United States v. Valnor,
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451 F.3d 744 (11th Cir. 2006).
The district court correctly calculated the guideline range, and proceeded to
explicitly address several of the § 3553(a) factors. See Talley, 431 F.3d at 786.
The court emphasized the rapidity of Lopez-Parada’s return after deportation, his
immediate arrests for violent and non-violent crimes, and his former membership
in one of the most dangerous gangs in the United States. Reasoning that Lopez-
Parada’s quick return to the United States and crime indicated he did not “get the
message” the last time, the court concluded that a more lengthy sentence would be
necessary to protect the public, prevent more crimes and get Lopez-Parada’s
attention. In addition, the court did not err by considering the conduct underlying
more recent criminal charges because these factors were never objected to, and
thus were deemed admitted. See Wade, 458 F.3d at 1277. In sum, because the
court properly considered the § 3553(a) factors in determining that a guideline
range sentence was inadequate, and did not impose a sentence greater than the
statutory maximum, Lopez-Parada’s sentence was not unreasonable. Accordingly,
we affirm.
AFFIRMED.1
1
Lopez-Parada’s request for oral argument is denied.
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