United States v. Cesar Espinoza-Mora ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11734 Aug. 5, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00212-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ESPINOZA-MORA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 5, 2008)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Cesar Espinoza-Mora appeals his 108-month sentence for possession with
intent to distribute more than 5 kilograms of cocaine, in violation of 21 U.S.C.
§ 841 and 18 U.S.C. § 2. Espinoza-Mora was enlisted by a large drug operation to
transport drugs using a car that was involved in the operation. While Espinoza-
Mora was a passenger in the car, it was stopped and searched by a Kansas sheriff,
who found cocaine inside the vehicle. Eight months later, the Drug Enforcement
Administration (“DEA”) arranged for a controlled delivery of cocaine to its
intended recipient in New York, and Espinoza-Mora accompanied a woman to
pick up the cocaine and was arrested when he drove away in the car in which the
cocaine was hidden.
On June 30, 2003, Espinoza-Mora was taken into New York state custody
on a possession of cocaine charge, stemming from the New York offense. He was
also indicted, on September 16, 2003, on federal charges of conspiracy to
distribute and to possess with intent to distribute cocaine, based on the identical
conduct, and he was taken into federal custody on March 11, 2004. After pleading
guilty to the charges in that federal indictment, Espinoza-Mora was sentenced to
87 months’ imprisonment, which was reduced by the time that he had served in
state custody since June 30, 2003, and was to run concurrently with any
undischarged term of imprisonment. On June 20, 2006, Espinoza-Mora was
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arrested on the instant charge in the Middle District of Florida, based on the
offense that occurred in Kansas. After he pled guilty, the district court sentenced
him to 108 months’ imprisonment, to run partially concurrently with the sentence
imposed in his prior federal case, and with credit for the time that he had served
since he was taken into federal custody on March 11, 2004.
On appeal, Espinoza-Mora argues that once the district court determined
that both the prior state case and the prior federal case were relevant in
determining his base offense level, it had a duty to reduce his sentence by the
period of imprisonment that he had served on the state conviction, which began
before his prior federal conviction. Notably, the government agrees with
Espinoza-Mora’s argument on this issue. He also contends that his sentence was
both procedurally and substantively unreasonable, because the court focused
almost entirely on the guideline range and imposed a sentence that far exceeded
what was necessary to achieve the purposes of punishment.
I. Sentence reduction
At his sentencing hearing, Espinoza-Mora argued that his sentence should
account for the undischarged term of imprisonment that he was serving on his
related federal case, but he did not argue that it also should account for the time
that he had served on his related state case, and accordingly, he did not preserve
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that issue. Where an issue is not preserved, appellate review is for plain error
only. United States v. Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). Under this
standard, Espinoza-Mora must establish that an error (1) occurred; (2) is plain; (3)
affects his substantial rights; and (4) seriously affected the fairness and integrity of
the proceedings. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct.
1770, 1776, 123 L.Ed.2d 508 (1993). A showing that an error affected one’s
substantial rights “almost always requires that the error must have affected the
outcome of the district court proceedings.” United States v. Rodriguez, 398 F.3d
1291, 1299 (11th Cir. 2005) (internal quotations and citation omitted).
Pursuant to U.S.S.G. § 5G1.3(b), if:
a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense of conviction . . . and that was the basis
for an increase in the offense level for the instant offense . . . the
sentence for the instant offense shall be imposed as follows: (1) the
court shall adjust the sentence for any period of imprisonment already
served on the undischarged term of imprisonment if the court
determines that such period of imprisonment will not be credited to
the federal sentence by the Bureau of Prisons; and (2) the sentence for
the instant offense shall be imposed to run concurrently to the
remainder of the undischarged term of imprisonment.
U.S.S.G. § 5G1.3(b). “The intended purpose of . . . § 5G1.3(b) is to effectively
credit for guidelines purposes defendants who have already served time –
generally in another jurisdiction – for the same conduct or course of conduct.”
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United States v. Flowers, 13 F.3d 395, 397 (11th Cir. 1994) (internal quotations
and citation omitted) (applying an earlier, similar version of § 5G1.3).
Because the district court calculated Espinoza-Mora’s base offense level by
including the amount of cocaine that he transported in both the Kansas and the
New York transactions, it should have adjusted his sentence to account for the
period of state imprisonment that he began serving on June 30, 2003, and not just
for the time that he had spent in federal custody. This error was plain, Espinoza-
Mora’s substantial rights were affected, as the sentence that he received was
nearly eight and a half months longer than it should have been under the guideline,
and this error seriously affected the fairness and integrity of the proceedings.
There is no evidence that the district court determined that the period of
imprisonment that Espinoza-Mora had served on his state sentence would be
credited to him by the Bureau of Prisons, and therefore, we remand the case to the
district court to resentence Espinoza-Mora in accordance with § 5G1.3(b).
II. Reasonableness
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.
2005). Unreasonableness may be procedural, when the court’s procedure does not
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follow Booker’s1 requirements, or substantive. United States v. Hunt, 459 F.3d
1180, 1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence
may be procedurally unreasonable if the district court improperly calculates the
guideline imprisonment range, treats the guidelines as mandatory, fails to consider
the appropriate statutory factors, bases the sentence on clearly erroneous facts, or
fails to adequately explain its reasoning. Gall v. United States, 552 U.S. ___, ___,
128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The Court also has explained that
the substantive reasonableness of a sentence is reviewed under an abuse-of-
discretion standard. Id. It has suggested that review for substantive
reasonableness under this standard involves inquiring whether the factors in 18
U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128 S.Ct. at 596.
When imposing a sentence, the district court first must correctly calculate
the guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Second, the district court must consider the following factors to determine a
reasonable sentence:
(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
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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needed educational or vocational training or medical care; (6) the
kinds of sentences available; (7) the Sentencing Guidelines range; (8)
pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwanted sentencing disparities; and (10) the need to
provide restitution to victims.
Id. (citing 18 U.S.C. § 3553(a)). While the district court must consider the
§ 3553(a) factors, it is not required to discuss each factor. Id. Instead, we have
held that an explicit acknowledgment that the district court has considered the
defendant’s arguments and the § 3553(a) factors will suffice. United States v.
Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005).
With regard to the procedural reasonableness2 of Espinoza-Mora’s sentence,
the district court did not abuse its discretion in its sentencing procedure because it
correctly calculated the advisory guideline range, and it specifically addressed his
reasons for participating in the offense, the seriousness of the offense, and the
need for him to obtain an education while imprisoned. Espinoza-Mora also has
not established that his sentence was substantively unreasonable. The district
court placed great emphasis on the conduct and seriousness of the offense, and it
concluded that 108 months’ imprisonment – which was the lowest within-
guidelines sentence available – was not greater than necessary to comply with the
2
With respect to procedural reasonableness, Espinoza-Mora does not argue that the district
court’s sentence reduction error (see Part I of this opinion) constitutes procedural unreasonableness.
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statutory purposes of sentencing and was reasonable and adequate. Accordingly,
we affirm as to this issue.
VACATED AND REMANDED IN PART, AFFIRMED IN PART.3
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Appellant’s request for oral argument is denied.
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