United States v. Raul Ferrao

Case: 13-15586 Date Filed: 06/24/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15586
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20330-MGC-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL FERRAO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 24, 2014)
Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Raul Ferrao appeals his 36-month sentence imposed after pleading guilty to
one count of conspiracy to commit access device fraud, in violation of 18 U.S.C.
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§ 1029(b)(2). He argues that his sentence is substantively unreasonable because
the district court failed to justify a sentence six times above the top end of the
guideline range. After review, we affirm.
The defendant bears the burden to show his sentence is unreasonable.
United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). We review the
reasonableness of a sentence for an abuse of discretion using a two-step process.
Id. at 1190. Normally we look first at whether the sentence is procedurally
reasonable. Id. Here, however, Ferrao does not assert any procedural error in his
sentence.
Second, we examine whether the sentence is substantively unreasonable
under the totality of the circumstances, including the extent of any variance from
the guideline range. Id. If the sentence imposed is reasonable in light of all the
circumstances presented, the weight given to any specific sentencing factor in 18
U.S.C. § 3553(a) is committed to the sound discretion of the district court. See
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). “[A] district judge must
give serious consideration to the extent of any departure from the Guidelines and
must explain [her] conclusion that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient justifications.” Gall v.
United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). At the same time, a
sentence outside the guideline range does not require extraordinary circumstances.
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Id. at 47, 128 S. Ct. at 595. We will reverse a sentence for being substantively
unreasonable only when “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) (quotation marks omitted).
Here, Ferrao has not met his burden to show that his sentence was
substantively unreasonable. See Pugh, 515 F.3d at 1189–90. At sentencing, the
district court noted that Ferrao’s guideline range was zero to six months. However
the district court, relying on the § 3553(a) factors, found that a sentence in that
range would be inadequate. In so finding the district court relied on the nature of
the offense, 18 U.S.C. § 3553(a)(1); the seriousness of the offense, id. §
3553(a)(2)(A); and the need to afford adequate deterrence to this kind of criminal
conduct, id. § 3553(a)(2)(B). The district court also considered undisputed facts in
the presentence report describing Ferrao’s conduct. Based on these findings and
weighing of the § 3553(a) factors, the district court sentenced Ferrao to 36-months
imprisonment.
Given the totality of the circumstances, Ferrao’s 36-month sentence is within
the range of reasonable sentences dictated by the facts of this case, especially
considering the wide-ranging nature of the credit card fraud conspiracy to which
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Ferrao pleaded guilty. See Irey, 612 F.3d at 1190. Ferrao’s argument essentially
asks us to reweigh the relevant § 3553(a) factors, which we do not do as long as
the ultimate sentence is reasonable. United States v. Snipes, 611 F.3d 855, 872
(11th Cir. 2011). While, as Ferrao argues, the applicable guideline range and
proportionality with codefendants are also relevant factors, 18 U.S.C.
§§ 3553(a)(4), (a)(6), we cannot say the district court’s decision to weigh other
factors more heavily was unreasonable. See Clay, 483 F.3d at 743.
AFFIRMED.
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