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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13219
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60088-WPD-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUELYORY A. RIGAL,
agent of "Kelly"
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 15, 2020)
Before WILSON, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Quelyory Rigal appeals her 156-month sentence for conspiracy to commit
mail and wire fraud, three counts of wire fraud, and mail fraud. Rigal argues that
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the district court imposed a substantively unreasonable sentence and abused its
discretion because it created an unwarranted sentencing disparity between her
sentence and the sentences of her codefendants, including Juan Sanchez, the
undisputed leader of the conspiracy, and because the court did not properly
consider her post-offense rehabilitation efforts. For the following reasons, we
affirm.
We review the reasonableness of a sentence under an abuse-of-discretion
standard. United States v. Irey,
612 F.3d 1160, 1188–89 (11th Cir. 2010) (en
banc). The party challenging the sentence bears the burden to show that the
sentence is unreasonable considering the record and the
18 U.S.C. § 3553(a)
factors. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). “A sentence
may be substantively unreasonable if a district court unjustifiably relied on any one
§ 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the
sentence arbitrarily, or based the sentence on impermissible factors.” United States
v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009).
Rigal focuses on § 3553(a)(6), which provides that, in sentencing, the court
shall consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.”
“However, we have stated that disparity between the sentences imposed on
codefendants is generally not an appropriate basis for relief on appeal.” United
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States v. Cavallo,
790 F.3d 1202, 1237 (11th Cir. 2015) (alteration adopted)
(internal quotation mark omitted).
When considering a claim of disparity, we first consider “whether the
defendant is similarity situated to the defendants to whom he compares himself.”
United States v. Duperval,
777 F.3d 1324, 1338 (11th Cir. 2015). For example,
“for purposes of § 3553(a)(6), a defendant who cooperates with the Government
and pleads guilty is not ‘similarly situated’ to his co-defendant who proceeds to
trial. Thus, there is no unwarranted disparity even when a cooperating defendant
receives a ‘substantially shorter’ sentence than a defendant who goes to trial.”
Cavallo, 790 F.3d at 1237 (internal citation omitted).
In addition, we do not apply a presumption of reasonableness to sentences
within the guideline range. United States v. Stanley,
739 F.3d 633, 656 (11th Cir.
2014). But we ordinarily expect such a sentence to be reasonable.
Id.
Here, the district court did not abuse its discretion; it reasonably considered
the proper § 3553(a) factors and imposed a substantively reasonable sentence. To
start, the district court justifiably concluded that Rigal was not similarly situated to
any of her codefendants. In reference to Sanchez and his 114-month sentence, the
district court appropriately found that Rigal’s situation differed from Sanchez’s
because Sanchez accepted responsibility, pled guilty, and provided substantial
assistance to the government in a separate case while Rigal proceeded to trial. See
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Duperval, 777 F.3d at 1338; Cavallo, 790 F.3d at 1237. And the district court was
aware of Sanchez’s uncharged conduct and explicitly stated that it could consider
that conduct. We do not see an unwarranted disparity or any clear error of
judgment in the district court’s consideration of Sanchez as a potential comparator.
Further, we see nothing wrong with the district court’s conclusion that Rigal was
not similarly situated to her other codefendants because they had less criminal
responsibility than Rigal. As for Rigal’s post-sentence rehabilitation, the district
court explicitly considered it and gave her credit for it. Also, the court considered
Rigal’s recidivism study, and nothing about the court’s weighing strikes us as
improper. Finally, Rigal’s 156-month sentence falls within the guideline range of
135 to 168 months, which indicates the reasonableness of the sentence. See
Stanley, 739 F.3d at 656.
In conclusion, Rigal did not carry her burden to show that her sentence was
substantively unreasonable. Accordingly, we affirm.
AFFIRMED.
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