United States v. Pablo Andres Angulo Hincapie , 194 F. App'x 712 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 29, 2006
No. 05-16793 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00109-CR-T-27-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO ANDRES ANGULO HINCAPIE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 29, 2006)
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Pablo Andres Angulo Hincapie appeals the 135-month sentence imposed by
the district court upon re-sentencing. The record reflects that the district court
properly considered the factors listed in 18 U.S.C. § 3553(a) in determining
Hincapie’s sentence. Accordingly, we AFFIRM.
I. BACKGROUND
A grand jury charged Hincapie with possession with intent to distribute five
kilograms or more of cocaine while aboard a vessel subject to U.S. jurisdiction, in
violation of 46 Appx. U.S.C. §§ 1903(a), (g), 18 U.S.C. § 2, and 21 U.S.C. §
960(b)(1)(B)(ii), and conspiracy to possess with intent to distribute five kilograms
or more of cocaine while aboard a vessel subject to U.S. jurisdiction, in violation
of 46 Appx. U.S.C. §§ 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Hincapie
had been a crew member on a boat to which the Coast Guard linked 133 bales of
cocaine. The Coast Guard had also found evidence of cocaine on the
crewmembers’ clothing. Hincapie pled guilty to the charges against him.
Hincapie had a base offense level of 38 because his offense involved 2,692
kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(1) (2003). He received a two-
level reduction under U.S.S.G. § 2D1.1(b)(6) and a three-level reduction under
U.S.S.G. § 3E1.1. With a total offense level of 33 and criminal history category of
I, the applicable guideline range was 135-168 months imprisonment. The district
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court sentenced Hincapie to 135 months. Hincapie appealed, and we affirmed his
sentence in part, but vacated and remanded for re-sentencing in light of United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
During the re-sentencing hearing,1 Hincapie indicated that the only issue
before the court was the determination of an appropriate sentence in light of the
§ 3553(a) factors. He argued that, after Booker, the court could consider specific
offender characteristics it had not previously been able to consider in determining
the sentence. He pointed out that (1) he was young, (2) he had a limited education,
(3) he had three daughters, (4) this was his first such offense, (5) he had no prior
record, and (6) he took part in the scheme because he was having financial
problems. He further asserted that, under 18 U.S.C. § 3661, there was no limit to
the information the court could consider regarding his character and conduct.
The government urged the court to impose a sentence within the guideline
range, and, in light of the nature of the offense, the amount of drugs involved, the
need to sentence the defendant consistently and avoid unwarranted sentencing
disparities, the court should sentence Hincapie to 135 months. The court indicated
that it had reviewed the PSI “consistent with an advisory guideline range, and
consider[ed] the statutory sentencing factors set forth in 3553(a).” R4 at 14. The
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The court relied on the PSI calculations from the original sentencing hearing.
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court observed that (1) Hincapie was being “held accountable for over 2600
kilograms of cocaine;” (2) the charged offense was “quite serious”; and (3) a
“lengthy” sentence was “not only required, but appropriate to deter similar
conduct.” Id. at 14-15. The court then sentenced Hincapie to 135 months in
prison.
On appeal, Hincapie argues that the district court did not appropriately
consider the factors provided in 18 U.S.C. § 3553(a) in determining his sentence.
He also contends that the court failed to consider the factors set out in chapter 5H
of the sentencing guidelines and 18 U.S.C. § 3661.2II. DISCUSSION
We review the district court’s interpretation of the guidelines de novo and “a
defendant’s ultimate sentence for reasonableness.” United States v. Williams, 435
F.3d 1350, 1353 (11th Cir. 2006) (per curiam). In imposing a sentence after
Booker, a court must first consult the guidelines and correctly calculate the
guideline range. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per
curiam). The court must then consider the factors provided in 18 U.S.C. § 3553(a),
which include:
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Although Hincapie invokes 18 U.S.C. § 3661, that statute only provides that “[n]o limitation
shall be placed on the information concerning the background, character and conduct of a person
convicted of an offense which a court of the United States may receive and consider for the purpose
of imposing an appropriate sentence.” In this case, there is no allegation or indication that the court
limited the information Hincapie presented as to these issues.
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(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need [for the sentence] 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 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.
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)). The district court need not
explicitly discuss each factor. United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005). “[A]cknowledgment by the district court that it has considered the
defendant’s arguments and the factors in section 3553(a) is sufficient under
Booker.” Talley, 431 F.3d at 786.
Here, the record reflects that the district court properly considered the
§ 3553(a) factors in determining Hincapie’s sentence. The court not only
acknowledged that it had considered the factors, but it also specifically noted its
belief that, in light of the nature of the offense, which it described as “quite
serious,” a lengthy sentence was “appropriate to deter similar conduct.” R4 at 14-
15. Accordingly, we find no error.
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III. CONCLUSION
Hincapie appeals the 135-month sentence imposed by the district court upon
post-Booker re-sentencing. Because we conclude that the district court properly
considered the § 3553(a) factors in determining Hincapie’s sentence, we AFFIRM.
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