United States v. Carlos Enrique Betancourt Uribe

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10591 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20670-AJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CARLOS ENRIQUE BETANCOURT URIBE,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 23, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Carlos Betancourt Uribe appeals the sentence imposed after he pleaded
guilty to importing at least 100 grams of heroin, in violation of 21 U.S.C. § 952(a).
On appeal, Uribe argues that his sentence was substantively unreasonable. After a
thorough review of the record, we affirm.
Uribe pleaded guilty to importing heroin after customs officials at Miami
International Airport discovered 719.8 grams of heroin in his backpack when he
arrived on a flight from Colombia. He admitted that he had imported the drugs in
return for a payment of $10,000.
The district court calculated his sentencing range as 46 to 57 months’
imprisonment.1 The statutory maximum sentence was 40 years’ imprisonment. 21
U.S.C. § 960(b)(2)(A). Uribe requested a sentence below the advisory guideline
range in consideration of the sentencing factors in 18 U.S.C. § 3553(a). After
considering the parties’ arguments, the advisory guideline range, and the § 3553(a)
factors, the court found that a sentence at the low end of the guideline range was
appropriate. The court noted the large amount of heroin involved, as well as the
fact that another courier in the scheme had been sentenced to 46 months’
imprisonment. The court stated that the sentence imposed on another courier was
not dispositive, but explained that it could consider the punishment of a similarly
situated individual. Uribe now appeals the 46-month sentence imposed.
1
Uribe qualified for the safety-valve reduction, which permitted the court to impose a
sentence below the statutory mandatory minimum of five years’ imprisonment. 21 U.S.C.
§ 960(b)(2)(A); U.S.S.G. § 5C1.2.
2
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 51 (2007). “The
party challenging the sentence bears the burden to show it is unreasonable in light
of the record and the § 3553(a) factors.” United States v. Tome, 611 F.3d 1371,
1378 (11th Cir.), cert. denied 131 S.Ct. 674 (2010).
In determining the sentence, the district court must conduct an
individualized assessment based on the facts presented. Gall, 552 U.S. at 50.
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). Additionally, “[t]he
weight given to any § 3553(a) factor is within the sound discretion of the district
court and we will not substitute our judgment in weighing the relevant factors.”
United States v. Irey, 612 F.3d 1160, 1261 (11th Cir. 2010) (en banc), cert.
denied, 131 S.Ct. 1813 (2011). We will reverse only if “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. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008). A sentence imposed well below the
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statutory maximum penalty is an indicator of a reasonable sentence. United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Here, we conclude that Uribe’s 46-month sentence, imposed at the low end
of the guideline range, is substantively reasonable.2 The sentence was within the
guideline range, took into consideration the § 3553(a) factors such as the nature
and circumstances of the offense, the applicable guideline range, and the history
and characteristics of the defendant, and was well below the 40-year statutory
maximum penalty. Uribe has not shown that the court abused its discretion.
We are not persuaded by Uribe’s argument that the court relied too heavily
on treating similarly situated individuals the same. Although the court stated that
treating similarly situated individuals alike was one of the factors it considered, it
also stated that such factor was not dispositive or determinative. Further, the
weighing of factors is generally left to the sound discretion of the district court and
we will not substitute our judgment for the district court’s. Irey, 612 F.3d at 1261.
Accordingly, we affirm the sentence.
AFFIRMED.
2
Uribe did not object to the court’s guideline calculations at sentencing and although he
couches his argument on appeal in procedural reasonableness terms, he does not raise an
argument concerning the procedural reasonableness of his sentence. In any event, we conclude
that the district court did not commit any procedural error. The court properly calculated the
guideline range, treated the guidelines as advisory, considered the § 3553(a) factors, and
adequately explained the sentence imposed. Gall, 552 U.S. at 51.
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