United States v. Danilo Jose Gutierrez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 4, 2012
No. 11-12810
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:11-cr-00036-WSD-JFK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
DANILO JOSE GUTIERREZ,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 4, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Danilo Jose Gutierrez appeals his 27-month sentence of imprisonment, after
pleading guilty to one count of illegal reentry of a deported alien, in violation of
8 U.S.C. § 1326(a), (b)(2). Gutierrez argues that his sentence is substantively
unreasonable in light of the relevant factors under 18 U.S.C. § 3553(a), because
the eight-level aggravated felony enhancement, imposed pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C), resulted in an unreasonable guideline range not entitled to
deference, the enhancement double-counted his prior misdemeanor battery
conviction, and the district court failed to properly consider the nature of his
offense and his personal characteristics in determining sentence.
We engage in a two-step process in reviewing sentences of imprisonment.
United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). First, we look
for any significant procedural errors. Id. Second, we review the substantive
reasonableness of a sentence under “a deferential abuse-of-discretion standard”
regardless of whether the sentence is “inside, just outside, or significantly outside
the Guidelines range.” Id. at 1090-91. In this second step, we take into account
the “totality of the circumstances” and “give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id. at 1091. Although we do not apply a presumption of reasonableness,
“ordinarily we would expect a sentence within the Guidelines range to be
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reasonable.” United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009),
cert. denied, 131 S.Ct. 436 ( 2010).
A district court abuses its discretion when it (1) fails to consider relevant
factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the factors. United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010), cert. denied, 131 S.Ct. 1813 (2011). We will “vacate the
sentence 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.” Id. at 1190. The burden rests on the party
challenging the sentence to show that the sentence is unreasonable in light of the
record and the § 3553(a) factors. United States v. Bohannon, 476 F.3d 1246, 1253
(11th Cir. 2007).
We have previously considered the “double counting” argument and upheld
the § 2L1.2 enhancement, because the Guidelines application notes show that the
Commission intended certain prior offenses to apply to both the offense level and
the criminal history category, and because the enhancement supports a distinct
policy concern. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992).
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With respect to Gutierrez’s other argument that the § 2L1.2 aggravated felony
enhancement was not entitled to deference, based on Kimbrough v. United States,
552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court, in that
case, merely held that a sentence is not per se unreasonable when based on the
sentencing court’s disagreement with the sentencing disparity for crack and
powder cocaine offenses. See 552 U.S. at 91, 128 S.Ct. at 564.
Gutierrez’s sentence is not substantively unreasonable, because the district
court did not abuse its discretion in giving greater emphasis to particular § 3553
factors, based on the facts and circumstances of the case. United States v.
Langston, 590 F.3d 1226, 1237 (11th Cir. 2009) (declining to reweigh the § 3553
factors absent showing of clear error of judgment by the district court). The record
shows that the district court specifically considered Gutierrez’s background in
Nicaragua, his alcohol addiction, and his economic circumstances, and balanced
these factors against the need to impose an appropriate punishment for Gutierrez’s
offense, to deter Gutierrez from illegally entering the United States again, and to
promote respect for the law. The sentence imposed is also consistent with the
variance Gutierrez requested at sentencing, because it falls within the proposed
24-30 month range. Furthermore, Gutierrez received a sentence below both the
minimum guideline and the 10-year sentencing maximum. Thus, Gutierrez failed
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to demonstrate that the district court committed a clear error of judgment in its
assignment of weight to the proposed mitigating factors or that the resulting
sentence fell outside the reasonable range of sentences.
AFFIRMED.
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