United States v. Orlando Bustabad

Case: 18-14278 Date Filed: 08/15/2019 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14278
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20441-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO BUSTABAD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 15, 2019)
Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.
PER CURIAM:
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Orlando Bustabad pleaded guilty pursuant to a written agreement to one
count of conspiracy to commit healthcare fraud and wire fraud. Before his
scheduled sentence hearing, he fled to Mexico. He remained at large for eight
months, at which point he surrendered to U.S. Customs and Border Patrol agents.
Because of his flight, the district court at his rescheduled sentence hearing imposed
a guidelines enhancement for obstruction of justice under section 3C1.1 of the
United States Sentencing Guidelines and denied a reduction for acceptance of
responsibility under section 3E1.1. The resulting guidelines range was 235 to 240
months imprisonment, and the court sentenced Bustabad to the bottom of that
range. This is his appeal.
Bustabad challenges both the procedural and the substantive reasonableness
of his 235-month sentence. “We review the reasonableness of a sentence for abuse
of discretion using a two-step process.” United States v. Tome, 611 F.3d 1371,
1378 (11th Cir. 2010). “We look first at whether the district court committed any
significant procedural error and then at whether the sentence is substantively
reasonable under the totality of the circumstances.” Id.
The only procedural error Bustabad alleges is that the district court did not
apply the acceptance of responsibility reduction when calculating the guidelines
range. “We review the district court’s determination of acceptance of
responsibility only for clear error.” United States v. Amedeo, 370 F.3d 1305, 1320
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(11th Cir. 2004). “A district court’s determination that a defendant is not entitled
to acceptance of responsibility will not be set aside unless the facts in the record
clearly establish that a defendant has accepted personal responsibility.” Id. at
1320–21 (quotation marks omitted); see U.S.S.G. § 3E1.1 cmt. n.5 (“The
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is entitled
to great deference on review.”).
Bustabad does not contest the district court’s application of the obstruction
of justice enhancement, and the commentary to the guidelines notes that conduct
resulting in such an enhancement “ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct,” U.S.S.G. § 3E1.1 cmt. n.4. But
the commentary suggests that “[t]here may . . . be extraordinary cases in which”
both the obstruction of justice enhancement and the acceptance of responsibility
reduction may apply. Id. Bustabad argues that his is such an extraordinary case
because even though he fled the country before his first sentence hearing, he
eventually surrendered voluntarily in order to help his son, who had been convicted
as one of Bustabad’s co-conspirators.
We disagree. Bustabad admitted that he fled the country for eight months to
avoid his sentence — conduct that is plainly “inconsistent with [an] acceptance of
responsibility,” U.S.S.G. § 3E1.1 cmt. n.3. That he eventually returned to face his
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sentence (whether to help his son or, as the district court found, for some other
reason) does not make his case sufficiently extraordinary for him to receive the
acceptance of responsibility reduction in spite of his obstruction of justice. 1 In
short, the district court did not clearly err by refusing to apply the acceptance of
responsibility reduction.
Bustabad also contends that his bottom of the guidelines sentence is
substantively unreasonable. “We ordinarily expect a sentence within the
Guidelines range to be reasonable . . . .” United States v. White, 663 F.3d 1207,
1217 (11th Cir. 2011) (quotation marks omitted). As “[t]he party challenging the
sentence,” Bustabad “bears the burden to show it is unreasonable in light of the
record and the [18 U.S.C.] § 3553(a) factors.” Tome, 611 F.3d at 1378. We will
vacate a sentence as substantively unreasonable “if, but only if, we are left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
1
Bustabad also argues that the district court “was under the mistaken impression that
Bustabad’s flight prior to sentencing automatically disqualified him for the [acceptance of
responsibility] reduction.” But the district court acknowledged that Bustabad could be eligible
for the acceptance of responsibility reduction in an “extraordinary circumstance,” as
contemplated by the commentary to the guidelines.
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Bustabad argues that the district court gave undue weight to his post-flight
guidelines range and not enough weight to mitigating factors like his age and
health. 2 But “[t]he weight to be accorded any given § 3553(a) factor” — such as
the applicable guidelines range, 18 U.S.C. § 3553(a)(4)(A), and “the history and
characteristics of the defendant,” id. § 3553(a)(1) — “is a matter committed to the
sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007). Bustabad has failed to show that the district court abused that
discretion.
Lastly, Bustabad argues that there is an unwarranted disparity between his
sentence and his son’s sentence. He asserts that “[t]he only difference in their
circumstances at the time of their sentencing was Bustabad’s flight.” It is not,
however, substantively unreasonable for such a difference to result in the
sentencing disparity about which he now complains. See United States v.
Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (“A well-founded claim of
disparity . . . assumes that apples are being compared to apples.”) (quotation marks
omitted).
AFFIRMED.
2
The court explicitly addressed Bustabad’s age and health, noting that Bustabad “should
have thought about those things before he engaged in that criminal conduct.”
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