United States v. Diego Pineda-Duque

Case: 11-12570 Date Filed: 03/06/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12570
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cr-14002-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIEGO PINEDA-DUQUE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 6, 2013)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-12570 Date Filed: 03/06/2013 Page: 2 of 7
Diego Pineda-Duque appeals his 41-month sentence, imposed at the low end
of the applicable Sentencing Guidelines range, after pleading guilty to one count of
reentry of a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). Pineda-
Duque argues for the first time on appeal that the district court erred in applying a
16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), based on its
finding that he had been sentenced to more than 13 months’ imprisonment for his
drug-trafficking offense in the Eastern District of New York. He asserts that his
sentence of “time served,” where he was incarcerated for 14 months because his
sentencing hearing was postponed numerous times, does not qualify as a “sentence
imposed” that exceeded 13 months. He further argues that his sentence is
procedurally and substantively unreasonable because the court failed to adequately
consider the 18 U.S.C. § 3553(a) factors and his mitigating arguments, and
imposed a sentence that is longer than necessary to comply with the purposes of
sentencing. Upon careful review of the record and consideration of the parties’
briefs, we affirm.
I.
Pineda-Duque first argues that the district court erred in applying the 16-
level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i), based on its finding
that he had been sentenced to more than 13 months’ imprisonment for his drug-
trafficking offense in the Eastern District of New York. We review a district
2
Case: 11-12570 Date Filed: 03/06/2013 Page: 3 of 7
court’s factual findings for clear error. United States v. Rodriguez, 398 F.3d 1291,
1296 (11th Cir. 2005). When an appellant challenges the court’s application of a
sentence enhancement for the first time on appeal, however, the decision is
reviewed for plain error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir.
2009), cert. denied, 130 S. Ct. 2361 (2010). We will reverse only if “(1) an error
occurred, (2) the error was plain, (3) the error affected substantial rights in that it
was prejudicial and not harmless, and (4) the error seriously affected the fairness,
integrity, or public reputation of a judicial proceeding.” United States v. Perez,
661 F.3d 568, 583 (11th Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1943(2012). For an error to be plain, it must be obvious or clear under the current law
at the time of appellate review. United States v. Baker, 432 F.3d 1189, 1207 (11th
Cir. 2005).
Congress specifically permits an enhanced sentence for an “aggravated
felon[]” who illegally re-enters the United States after deportation. 8 U.S.C.
§ 1326(b)(1). The purpose of the statute is to deter convicted felons from
reentering the United States. See United States v. Adeleke, 968 F.2d 1159, 1160
–61 (11th Cir. 1992). Recognizing the greater need to deter the illegal reentry of
an alien convicted of a serious crime, the statute allows a longer maximum
sentence for the illegal reentry of an aggravated felon than for the illegal reentry of
a removed alien. United States v. Zelaya, 293 F.3d 1294, 1298 (11th Cir. 2002).
3
Case: 11-12570 Date Filed: 03/06/2013 Page: 4 of 7
The Guidelines implement this policy by imposing a 16-level enhancement to the
base offense level for a defendant who was previously deported after a conviction
for a “drug trafficking offense for which the sentence imposed exceeded 13
months.” U.S.S.G. § 2L1.2(b)(1)(A)(i). The Guidelines commentary provides that
the “sentence imposed” is the “sentence pronounced, not the length of time
actually served.” See U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(vii); § 4A1.2 cmt. n.2.
Here, the district court did not plainly err by finding that Pineda-Duque had
been convicted of a drug trafficking offense for which the sentence imposed
exceeded 13 months, which subsequently resulted in a 16-level enhancement
pursuant to § 2L1.2(b)(1)(A)(i). As set forth in the presentence investigation
report (PSI), Pineda-Duque was sentenced to “time served” for his drug trafficking
offense in the Eastern District of New York. He was arrested for the offense on
September 25, 1994, and remained in custody until his sentencing on November
29, 1995—approximately 14 months. Therefore, the sentence imposed for that
offense exceeded 13 months, and the district court did not plainly err in applying
the § 2L1.2(b)(1)(A)(i) enhancement.
II.
Pineda-Duque further argues that his sentence is procedurally and
substantively unreasonable because the district court failed to consider the 18
U.S.C. § 3553(a) factors and imposed a sentence that was greater than necessary.
4
Case: 11-12570 Date Filed: 03/06/2013 Page: 5 of 7
We review the reasonableness of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). In
reviewing the reasonableness of a sentence, we must first ensure that the sentence
was procedurally reasonable, meaning that the district court properly calculated the
Guideline range, treated the Guidelines as advisory, considered the § 3553(a)
factors, did not select a sentence based on clearly erroneous facts, and adequately
explained the chosen sentence. Id. at 51, 128 S. Ct. at 597. “[T]he sentencing
judge should set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir.
2007) (per curiam) (internal quotation marks omitted). However, the district court
has no obligation to discuss or to explicitly state on the record its consideration of
each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005).
Once we determine that a sentence is procedurally reasonable, we must
examine whether the sentence was substantively reasonable under the totality of
the circumstances. Gall, 552 U.S. at 51, 128 S. Ct. 597. A sentence may be
remanded if we are left with a “definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
5
Case: 11-12570 Date Filed: 03/06/2013 Page: 6 of 7
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
The district court must impose a sentence that is “sufficient, but not greater
than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),
including the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. See 18 U.S.C.
§ 3553(a)(2). The district court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable Guideline range, the pertinent policy statements issued by
the Sentencing Commission, the need to avoid unwarranted sentence disparities,
and the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
The party who challenges the sentence bears the burden to show that it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not automatically
presume a sentence falling within the Guideline range to be reasonable, we
ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d
739, 746 (11th Cir. 2008).
In this case, Pineda-Duque fails to meet his burden of establishing that his
41-month sentence was procedurally or substantively unreasonable in light of the
6
Case: 11-12570 Date Filed: 03/06/2013 Page: 7 of 7
record and the § 3553(a) factors. The district court adopted the Guideline
calculations contained in the PSI, to which Pineda-Duque made no objections. The
court considered his arguments and the advisory Guidelines and statutory factors
contained in the PSI, and ultimately imposed a sentence at the low end of the
Guideline range. This is enough to show that the court had a reasoned basis for
exercising its legal decisionmaking authority. See Agbai, 497 F.3d at 1230. As to
substantive reasonableness, the sentence of 41 months’ imprisonment represented
the lowest end of the applicable Guideline range of 41 to 51 months, and we would
ordinarily expect such a sentence to be reasonable. See Hunt, 526 F.3d at 746.
Although Pineda-Duque argues that the § 2L1.2(b)(1)(A)(i) enhancement
overstates his criminal history and characteristics, the enhancement reflects
Congress’s determination that there is a greater need to deter the illegal reentry of
an alien convicted of a serious crime. See Zelaya, 293 F.3d at 1298. Thus,
considering Pineda-Duque’s history, a custodial sentence within the Guideline
range was necessary to promote respect for the law, provide just punishment, and
deter him from further criminal activity. See 18 U.S.C. § 3553(a). Accordingly,
we affirm.
AFFIRMED.
7