United States v. Huber Lazaro Lezcano ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 3, 2006
No. 05-16962 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60177-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUBER LAZARO LEZCANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 3, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Huber Lazaro Lezcano appeals his 21-month sentence for fraudulent use of
an unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2). On appeal,
Lezcano challenges his sentence, arguing (1) that the district court abused its
discretion by determining that it would not grant a downward departure pursuant to
U.S.S.G. § 4A1.3(b) and (2) that his sentence was unreasonable in light of 18
U.S.C. § 3553(a). After review, we affirm.
Lezcano first argues that the district court acted unreasonably by denying
his motion for a downward departure pursuant to U.S.S.G. § 4A1.3(b). He argues
that his criminal history category over-represented the seriousness of his past
crimes because: (1) his prior convictions never resulted in significant prison terms;
(2) he had “never scored out to an enforced advisory prison sentence” under
Florida’s guideline scoring system; (3) he had been sentenced to time-served for a
majority of his crimes; (4) his past crimes were unsophisticated and related to his
drug addiction; and (5) after committing 3 offenses when he was 18, he “resisted a
criminal lifestyle” for 6 years. He claims that his sentences from his prior
convictions reflect that he was not considered a career offender, and the State of
Florida did not perceive him to be a significant risk for recidivist behavior. He
further argues that, in light of the fact that his prison sentence would assist him in
overcoming his drug dependence, there was little reason to believe that he would
reenter a life of crime and engage in recidivist behavior once he completed his
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sentence.
We do not normally review the district court’s denial of a downward
departure, except in cases where the district court incorrectly believed that it did
not have authority to depart. United States v. Ortega, 358 F.3d 1278, 1279 (11th
Cir. 2003). After Booker, we continue to lack jurisdiction to review the decision of
a district court not to apply a downward departure. See United States v.
Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (reaffirming this court’s lack of
jurisdiction to review a district court’s decision not to depart downward).
Because the district court here recognized that it had the authority to depart,
but chose not to based on the timing and pattern of Lezcano’s prior offenses, we
may not review the district court’s denial of Lezcano’s motion for a downward
departure pursuant to § 4A1.3(b). Id.
Lezcano also argues that the district court was “unreasonable” in finding that
the seriousness of his criminal history category was not over-represented. In
sentencing a defendant, the factors that a district court should consider include: (1)
the nature and circumstances of the offense; (2) the history and characteristics of
the defendant; (3) the need for the sentence to reflect the seriousness of the offense,
promote respect for the law, afford adequate deterrence, protect the public, and
provide needed correctional treatment; (4) the applicable guideline range; (5) the
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pertinent Sentencing Commission policy statements; and (6) the need to avoid
unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
A district court need not, however, explicitly consider every single § 3553(a)
factor in order for the sentence to be reasonable. See e.g., United States v. Scott,
426 F.3d 1324, 1330 (11th Cir. 2005) (“We now . . . hold that 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.”). Here, the district court explicitly acknowledged that it had considered
the parties statements, the PSI, and the § 3553(a) factors, before imposing
Lezcano’s sentence. Because the imposition of Lezcano’s sentence reflected
consideration of several of the relevant factors under § 3553(a), Lezcano’s
sentence was not unreasonable. Accordingly, we affirm.
AFFIRMED
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