United States v. Gerardo Pendas , 427 F. App'x 847 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14451 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-tp-20072-DLG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
GERARDO PENDAS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 31, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Gerardo Pendas appeals the sentence imposed upon revocation of his
supervised release, 18 U.S.C. § 3583(e)(3). Because we conclude that Pendas’s
sentence is reasonable, we affirm.
In 2004, Pendas pleaded guilty to conspiracy to distribute drugs and illegal
use of a communications facility and was sentenced to 72 months’ imprisonment
to be followed by 5 years of supervised release. In 2007, Pendas began his term of
supervised release.
In 2008, the district court revoked Pendas’s supervised release after Pendas
pleaded guilty to conspiracy to possess with intent to distribute cocaine. The
undisputed guidelines range for the violation was 24 to 30 months’ imprisonment.
The government requested that the sentence run consecutive to the 97-month
sentence Pendas received in the conspiracy case. Pendas requested the sentences
run concurrently.
The district court considered the parties’ statements and the advisory
guideline range, and sentenced Pendas to 24 months’ imprisonment to run
consecutively to the 97-month term imposed for the drug conspiracy offense.
Pendas now appeals, challenging the reasonableness of his sentence.
A sentence imposed upon revocation of supervised release is reviewed for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
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2006). “[A] sentence may be reviewed for procedural or substantive
unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008).
We review both the procedural and substantive reasonableness of a sentence for an
abuse of discretion. Id. at 1273 n.25.
In reviewing whether a sentence is reasonable, we must ensure, first, that
the district court did not commit a significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall v. United States, 552 U.S. 38, 51 (2007). “[T]he sentencing judge should set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (citation
and quotation omitted). But the district court need not discuss or explicitly state
on the record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). “Rather, an acknowledgment by the district judge that he or she
has considered the § 3553(a) factors will suffice.” United States v. Amedeo, 487
F.3d 823, 832 (11th Cir. 2007) (quotation omitted).
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“The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory
factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable in the light of
both [the] record and the factors in section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). We will vacate a sentence only if “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), cert. denied, __
S.Ct. __ (2011).
When sentencing a defendant upon revocation of supervised release under
18 U.S.C. § 3583(e), a district court must consider the sentencing factors set forth
in 18 U.S.C. § 3553(a): (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed
to afford adequate deterrence to criminal conduct, to protect the public from
further crimes of the defendant, and to provide the defendant with training,
medical care, or correctional treatment; (3) the Sentencing Guidelines’ range; (4)
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pertinent Sentencing Commission policy statements; (5) the need to avoid
unwarranted sentencing disparities among similarly situated defendants with
similar records; and (6) the need to provide restitution to victims. See 18 U.S.C. §
3583(e). The sentence imposed must be sufficient, but not greater than necessary,
to comply with the purposes set forth in § 3553(a)(2). 18 U.S.C. § 3553(a).
We have consistently held that the policy statements in Chapter Seven are
merely advisory and not binding, but the district court is nevertheless required to
consider them. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006). When
the court imposes a sentence upon revocation, “the court should sanction primarily
the defendant’s breach of trust . . . [and] the sanction for the violation of trust
should be in addition, or consecutive, to any sentence imposed for the new
conduct.” U.S.S.G., ch. 7, pt. A, comment. (n.3(b)); see also U.S.S.G. § 7B1.3(f)
(“[a]ny term of imprisonment imposed upon the revocation of probation or
supervised release shall be ordered to be served consecutively to any sentence of
imprisonment the defendant is serving,” even if the sentence being served resulted
from the same offense that constituted the basis for the revocation of supervised
release).
On review, we conclude that the district court did not abuse its discretion by
imposing a sentence to run consecutively to Pendas’s 97-month sentence, and the
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sentence imposed was both procedurally and substantively reasonable. The court
considered and adequately weighed the § 3553(a) factors. It was not an abuse of
discretion for the court to give more weight to the guideline’s suggestion that
Pendas’s sentence run consecutive because Pendas was not being sentenced for the
violating offense but rather for his breach of trust. Accordingly, we affirm.
AFFIRMED.
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