United States v. Edin Velasquez Flores , 663 F. App'x 138 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2804
____________
UNITED STATES OF AMERICA
v.
EDIN NOEL VELASQUEZ-FLORES;
a/k/a PEDRO FERNANDEZ;
a/k/a M. JOSE M. FLORES;
a/k/a LUIS D. REVERON;
a/k/a EDIN VELASQUEZ,
Edwin Noel Velasquez-Flores,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2-15-cr-00189-001)
District Judge: Honorable Paul S. Diamond
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
on April 18, 2016
Before: McKEE, Chief Judge, FUENTES and ROTH, Circuit Judges.
(Filed: September 23, 2016 )
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OPINION
____________
MCKEE, Chief Judge.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
Edin Velasquez-Flores appeals the district court’s order sentencing him to 18
months’ imprisonment for illegally re-entering the United States after being deported.
The sole issue before us is whether the sentence was substantively unreasonable. For the
following reasons, we will affirm the judgment of the district court.
I.
Velasquez-Flores is a native and citizen of Honduras who first illegally entered the
United States when he was 15 years old. Since then, he has been removed from the
United States six times, and he has unlawfully returned each time.1 Over the years,
Velasquez-Flores has also been convicted of several relatively minor criminal offenses.2
Prior to the arrest that led to this case, he had never been incarcerated for more than five
days at a time.3 This appeal arises from his most recent arrest for illegal reentry into the
United States on April 23, 2014.
After his arrest, Velasquez-Flores pled guilty to the charge of unlawful reentry
after deportation.4 His Presentence Investigation Report calculated his Sentencing
Guidelines range to be 10-16 months, in part due to the incorrect determination that his
offense level should be increased by 4 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(D)
because he had a previous conviction for reentry after deportation, in violation of 8
U.S.C. § 1326(a).5 At the sentencing hearing, the district court sustained the
Government’s objection to the 4-level enhancement and concluded that Velasquez-Flores
1
Presentence Report ¶¶ 8, 24, 25, 33, 34, 35, 36 [hereinafter PSR].
2
Id. ¶¶ 24, 25, 27, 34.
3
App. at 125-26.
4
See 8 U.S.C. § 1326(a).
5
PSR ¶¶ 15, 57.
2
had an offense level of 6 and a criminal history category of III, leading to a Sentencing
Guidelines range of 2-8 months. Both parties argued for a sentence within the Guidelines
range.
However, the district court correctly treated the Guidelines as advisory and
exercised its discretion by imposing an upward variance. The district court considered a
number of factors, including Velasquez-Flores’ family relationships in the United States,
his work history, his prior criminal convictions, and the fact that Velasquez-Flores had
illegally reentered the United States six times. The district court concluded that an
upward variance was necessary to deter Velasquez-Flores from yet another illegal
reentry.6 The district court also considered other relevant factors under § 3553.7 The
court imposed a sentence of 18 months’ imprisonment, followed by one year of
supervised release, along with a $100 fine. Velasquez-Flores appeals.
II.8
We review the reasonableness of the sentence imposed by the district court for
abuse of discretion.9 A sentence “will be upheld as reasonable if the record as a whole
reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. §
3553(a).”10 The abuse of discretion standard is highly deferential, and we will affirm
unless Velasquez-Flores can demonstrate that “no reasonable sentencing court would
6
App. at 130-31.
7
Id. at 131.
8
The district court had subject matter jurisdiction over the case pursuant to 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
9
See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
10
United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). (internal quotation marks and citations omitted).
3
have imposed the same sentence on that particular defendant for the reasons the district
court provided.”11
Velasquez-Flores challenges his 18-month sentence solely on the basis that it was
substantively unreasonable. He argues that the district court’s stated reason for imposing
the upward variance – among other things, the need to deter him from yet another illegal
reentry – was insufficient to support a sentence that was more than double the upper limit
of the Guidelines range.12
First, Velasquez-Flores contends that the district court’s upward departure was
unreasonable because his conduct did not merit an enhancement under any of the 12
possible enhancements provided by the reentry provision in U.S.S.G. § 2L1.2(b). We are
unpersuaded by this argument because the district court did not impose a sentencing
enhancement that would require us to review the relevant guidelines provision to
determine whether the enhancement was properly applied.13 Instead, it properly deviated
from the Guidelines using a variance. We therefore review the district court’s analysis of
the § 3553 factors.14
Ample record evidence supports our conclusion that the district court imposed an
upward variance. First, the district court informed the parties in advance that it was
considering an upward variance.15 Second, the district court reminded the parties at the
11
United States v. Tomko, 562 F.3d 558, 567, 568 (3d Cir. 2009).
12
After concluding that the offense level was 6 and the criminal history category was III,
the district court found that Velasquez-Flores’ guidelines sentencing range was 2-8 months’ imprisonment. App.
122.
13
See United States v. Brown, 578 F.3d 221, 226 (3d Cir. 2009).
14
Id.15
App. at 116.
4
outset of the sentencing hearing that it was contemplating an upward variance.16 Third,
Velasquez-Flores’ counsel indicated during the sentencing hearing that both she and
Velasquez-Flores himself were aware that the district court was considering an upward
variance.17 Fourth, the Government acknowledged that the district court was within its
discretion to impose an upward variance.18
Perhaps most importantly, the district court conducted its analysis on the basis of
the § 3553 factors, as is required when considering an upward variance.19 In addition to
the Guidelines range, the district court considered that Velasquez-Flores had illegally
returned to the United States a total of six times, despite warnings to the contrary, and
that he has lived, worked, and raised a family in the United States.20 The district court
specifically observed that it considered “need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, to provide just punishment, to
afford adequate deterrence to criminal conduct, and to protect the public from further
crimes this defendant might commit.”21 The district court also considered Velasquez-
Flores’ possible need for education, vocational training or medical care,22 as well as the
need to avoid sentencing disparities and any possible need for restitution.23 We find no
basis in the record for Velasquez-Flores’ assertion that we should review his sentence
16
Id. at 120, 122.
17
Id. at 126.
18
Id. at 128.
19
See Brown, 578 F.3d at 226.
20
App. at 130-31. The sentencing court shall consider “the nature and circumstances of the
offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1).
21
App. at 131. See § 3553(2)(A)-(C).
22
App. at 131. See § 3553(2)(D).
23
App. at 131. See § 3553(6),(7).
5
pursuant to U.S.S.G. § 2L1.2(b), as that section applies to enhancements under the
Guidelines, not discretionary variances.
Velasquez-Flores next argues that the district court abused its discretion in finding
that a sentence above the Guidelines range is appropriate for deterrence purposes
because, prior to this offense, he has never spent more than five consecutive days in jail.
He further asserts that this arrest has served as a “wake up call,” for him to obtain legal
status in the United States, making further deterrence unnecessary. However, the district
court did not find Velasquez-Flores’ testimony credible.24 “We give great deference to a
presiding judge’s credibility determinations in sentencing proceedings because she is able
to directly observe a testifying witness’s tone and demeanor.”25
We see no reason to doubt the district court’s credibility determination in this case.
The record establishes Velasquez-Flores’ disregard of the prohibition on illegally
entering the United States, as demonstrated by his six reentries after deportation. We also
note that Velasquez-Flores was warned about the consequences of illegal reentry each
time he was deported, yet he returned. In light of this, we do not believe that the district
court imposed a greater sentence than was necessary to deter Velasquez-Florez from
illegally reentering the United States for the seventh time.26 The district court therefore
did not abuse its discretion when it concluded that an 18-month sentence was necessary
for deterrence purposes.
24
App. at 127.
25
United States v. Leekins, 493 F.3d 143, 150 (3d Cir. 2007).
26
See United States v. Olhovsky, 562 F.3d 530, 551 (3d Cir. 2009).
6
Velasquez-Flores also argues, for the first time on appeal, that his sentence is
substantively unreasonable because the sentence was higher than the average sentence for
illegal reentry, despite his lower than average criminal history. We generally will not
consider issues raised for the first time on appeal.27 Accordingly, we decline to address
it, here.
Finally, Velasquez-Flores contends that it is the certainty of punishment, not its
severity, that deters crime.28 Although we do not doubt the accuracy of that statement, it
does nothing to negate the reasonableness of the sentence that was imposed here.
IV.
For the foregoing reasons, we will affirm the judgment of district court.
27
See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir.1994).
Velasquez-Flores directs our attention to the National Institute of Justice’s publication, FIVE THINGS ABOUT
28
DETERRENCE, in support of his position. App. at 114.
7