United States v. Miguel Cruz Gonzalez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 13, 2008
No. 07-14498 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00151-CR-01-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL CRUZ GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 13, 2008)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Miguel Cruz Gonzalez, a Mexican citizen, was indicted for illegal re-entry
after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2),1 pled guilty, and
was sentenced by the district court to a prison term of 28 months, a term above the
sentence range prescribed by the Sentencing Guidelines. He now appeals his
sentence, raising one issue: whether his sentence is unreasonable.
Gonzalez first argues that the district court violated the “one book” rule by
relying on the 1995 Sentencing Guidelines Manual instead of the 2006 Sentencing
Guidelines Manual, which does not recognize multiple prior deportations as a
ground for an upward departure. He argues next that, because the district court, in
imposing the above-sentence range sentence, (1) never referred to a “variance” or
to the Supreme Court’s holding in United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), (2) did not discuss the reasonableness of his
sentence in light of the 18 U.S.C. § 3553(a) sentencing factors, and (3) specifically
referred to an “upward departure” in the context of the Guidelines, it was clear that
the court intended his sentence to be an upward departure “under a traditional
guideline calculation.” Gonzalez contends that the court failed to follow the proper
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Gonzalez had been convicted on March 2, 2004, of Tampering with a Motor Vehicle
and Possession of a Controlled Substance and sentenced to probation for a term of five years.
On August 13, 2004, he was deported to Mexico. Gonzalez was deported from the United States
to Mexico on four prior occasions (all for immigration violations), on January 4, 2001, July 18,
2002, June 27, 2003, and August 5, 2003.
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procedures for departing upwardly under U.S.S.G. § 4A1.3 because it “presumably
jumped from a Criminal History Category of III to a Criminal History Category
VI” without explaining how he compared to other defendants who fall into
criminal history category VI; thus, the court failed to conduct the required “guided
analysis” of the applicable guideline range.
After Booker, sentencing is a two-step process that requires the district court
first to “consult the Guidelines and correctly calculate the range provided by the
Guidelines,” and then to determine a reasonable sentence after considering
§ 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). We review
the district court’s interpretation and application of the Guidelines de novo, and the
sentence imposed for reasonableness, United States v. Campbell, 491 F.3d 1306,
1313, 1315 (11th Cir. 2007) (internal quotations and citation omitted), which is “a
deferential abuse-of-discretion standard,” Gall v. United States, — U.S. — ,128
S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). A sentence may be procedurally
unreasonable if it results from a procedure that does not follow the requirements of
Booker, and may be substantively unreasonable, irrespective of the procedure used.
United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir. 2006).
An above-guidelines sentence is a variance, and not a Guidelines departure,
where the district court: (1) correctly calculates the advisory Guidelines range; (2)
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considers the adequacy of this range in the light of the § 3553(a) factors; and (3)
concludes that the Guidelines range does not adequately address those factors. See
United States v. Irizarry, 458 F.3d 1208, 1211-12 (11th Cir. 2006), cert.
granted,128 S.Ct. 828 (2008). Where the court fails to cite to a specific
Guidelines departure provision and states that the Guidelines do not adequately
take into account the severity of the offense, the district court’s imposition of an
above-Guidelines sentence is not an upward Guidelines departure. See United
States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006) (noting that “[it was] not
reviewing the propriety of a ‘guidelines’ departure” where the district court treated
its decision to impose an above-guideline sentence as an exercise of its discretion),
cert. denied, 127 S.Ct. 251 (2006).
In reviewing the reasonableness of a sentence, we consider the factors set
out in § 3553(a) and the district court’s reasons for imposing the particular
sentence. United States v. Williams, 435 F.3d 1350, 1355 (11th Cir. 2006). The §
3553(a) factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
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avoid unwanted sentencing disparities; and (10) the need to provide
restitution to the victims.
See 18 U.S.C. § 3553(a)(1)-(7). While the court must consider the § 3553(a)
factors, it is not required to discuss each factor. United States v. Talley, 431 F.3d
784, 786 (11th Cir. 2005). Rather, “an acknowledgment by the court that it has
considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” Id.The record of Gonzalez’s sentencing proceeding demonstrates that the
district court relied solely on the § 3553(a) factors to vary upward from the
prescribed sentence range, and therefore, treated its decision to impose a sentence
above that range as a variance, rather than an upward departure. Accordingly, it
did not err in failing to follow the procedural requirements for a departure under
U.S.S.G. § 4A1.3, nor did it violate the one book rule. Further, because the court
adequately considered the § 3553(a) factors, and the sentence imposed was
reasonable in light of those factors, the sentence is not the product of an abuse of
discretion.
AFFIRMED.
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