United States v. Alejandro Aguilar-Ramirez ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14161 APRIL 27, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket Nos. 6:09-cr-00047-BAE-GRS-1,
6:09-cr-00057-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO AGUILAR-RAMIREZ,
a.k.a. Alex,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 27, 2011)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Alejandro Aguilar-Ramirez pled guilty in separate cases to conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and
unlawful reentry into the United States, in violation of 8 U.S.C. § 1326. The
sentence range prescribed by the Guidelines called for a sentence in each case of
97 to 121 months’ imprisonment. The district court varied upwardly from that
range and sentenced Aguilar-Ramirez to concurrent prison terms of 144 months.
He now appeals his sentences on the ground that they are unreasonable.1
We review a sentence for reasonableness under the abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d
445 (2007); United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). This
review is deferential. The appellant bears the burden of establishing the absence
of reasonableness in light of the record and the sentencing factors of 18 U.S.C.
§ 3553(a). See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Review for reasonableness has two steps. First, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
1
He also challenges the district court’s drug quantity determination in fixing the
Guidelines sentence range for the § 846 offense. He abandoned the challenge in the district
court; hence, we do not consider it here. United States v. Horsfall, 552 F.3d 1275, 1283-84 (11th
Cir. 2008), cert. denied, 129 S.Ct. 2034 (2009).
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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,
552 U.S. at 51, 128 S.Ct. at 597; United States v. Livesay, 525 F.3d 1081, 1093
(11th Cir. 2008). Procedural errors can also include selection of a sentence that is
based on clearly erroneous facts, or failure to adequately explain the chosen
sentence. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (citation
omitted). A district court need not expressly discuss each and every § 3553(a)
factor at the time of sentencing, but need only note that it has considered a
defendant’s arguments along with the § 3553(a) factors. United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005).
Second, we must determine whether the sentence imposed is substantively
reasonable based on the factors in § 3553(a). Gall, 552 U.S. at 51, 128 S.Ct. at
597. Gall instructs that the district court “must make an individualized assessment
based on the facts presented.” Id. at 50, 128 S.Ct. at 597. “The weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation omitted).
The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect
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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. 18 U.S.C. § 3553(a).
The sentences are not unreasonable in this case because the district court
considered the statements of the parties, the defendant’s history as set out in the
presentence report, correctly calculated the Guidelines sentence range, and
considered the factors set out in § 3553(a). Moreover, the sentences are not
substantively unreasonable because the district court specifically discussed the
§ 3553(a) factors that affected its decision to impose the challenged variance,
particularly noting the defendant’s criminal history and the likelihood that he will
commit further offenses on release from custody.
AFFIRMED.
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