United States v. Ahmed Fernandez

Case: 16-10797 Date Filed: 09/08/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10797
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20781-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AHMED FERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 8, 2016)
Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.
PER CURIAM:
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Ahmed Fernandez appeals his 60-month sentence, imposed above the
Sentencing Guidelines range, after pleading guilty to breaking and entering carrier
facilities with intent to commit larceny in violation of 18 U.S.C. § 2117. He raises
two issues on appeal, which we address in turn. After review,1 we affirm
Fernandez’s sentence.
I. DISCUSSION
A. Procedural Reasonableness
Fernandez first contends his sentence is procedurally unreasonable because
the district court failed to explain why it imposed a sentence above the Sentencing
Guidelines recommendation. See Gall v. United States, 552 U.S. 38, 51 (2007)
(“[The appellate court] must ensure that the district court committed no significant
procedural error, such as . . . failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.”).
Fernandez has the burden of demonstrating his sentence was unreasonable.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). He has not met it.
The district court adequately explained its reasons for choosing a sentence outside
the range set by the Guidelines, taking into due account the considerations
presented by § 3553(a). It explicitly invoked § 3553(a) and stated that Fernandez’s
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We review the reasonableness of a sentence under the deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Irey, 612 F.3d 1160,
1188-89 (11th Cir. 2010) (en banc).
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past criminality and his recidivism, the need to promote respect for the law, and the
need to protect the public motivated it to increase the sentence. See 18 U.S.C.
§ 3553(a)(2). The court dwelt at length on Fernandez’s criminal record and
discussed in detail its view that the Guidelines failed to take into account the
number and gravity of Fernandez’s past crimes. See 18 U.S.C. § 3553(a)(1); see
also United States v. Williams, 526 F.3d 1312, 1322-23 (11th Cir. 2008) (holding a
sentence to be reasonable where the sentencing court explained why it attached
great weight to one § 3553(a) factor). Further, it acknowledged Fernandez’s
acceptance of responsibility and guilty plea and considered them as possible
mitigating factors. See Rita v. United States, 551 U.S. 338, 356 (2007) (“The
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.”). The record belies Fernandez’s suggestion the
sentencing court’s explanation was inadequate. The court’s thorough discussion of
its reasons for its upward variance provided ample opportunity for appellate review
and Fernandez’s sentence is procedurally reasonable. Gall, 552 U.S. at 50 (“[The
district court] must adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.”).
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B. Substantive Reasonableness
Second, Fernandez asserts his sentence is substantively unreasonable in light
of the applicable 18 U.S.C. § 3553(a) factors. We examine whether the sentence
was substantively reasonable bearing in mind the totality of the circumstances,
including the extent of any variance. See Gall, 552 U.S. at 51. A court abuses its
discretion when it (1) fails to consider relevant factors that were due significant
weight, (2) gives an improper or irrelevant factor significant weight, or (3)
commits a clear error of judgment by balancing the proper factors unreasonably.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The district
court did not err in any of these respects.
Fernandez has failed show his sentence is substantively unreasonable in light
of the record and the § 3553(a) factors, as it was his burden to do. See Tome, 611
F.3d at 1378. The district court reviewed Fernandez’s past and concurrent criminal
conduct, including his repeated DUIs, driver’s license violations, sexual battery,
strong-arm robberies and other thefts, and his pending state court charges. The
court expressly considered the components of § 3553(a). It then varied
Fernandez’s Guidelines-recommended sentence upward in order to, in the court’s
words, “protect the public from [Fernandez’s] future crimes” and to “provide just
punishment for an offense one after the other.” Cf. 18 U.S.C. § 3553(a)(2)(A), (C).
Although district court gave comparatively deeper scrutiny to Fernandez’s criminal
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record, it was free to attach great weight to any single § 3553 factor, even to the
point of significant reliance on it. Gall, 552 U.S. at 57 (approving of district
court’s heavy emphasis on the defendant’s efforts at rehabilitation); United States
v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013) (“[S]ignificant reliance on one
factor does not necessarily render a sentence unreasonable.”); see also United
States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight given to any
specific § 3553(a) factor is committed to the sound discretion of the district
court . . . .”) (citations and internal quotations omitted).
That Fernandez’s sentence was set outside the Guidelines range entails no
presumption of unreasonableness. Irizarry v. United States, 553 U.S. 708, 714
(2008). Further, the 60-month sentence was well below the statutory maximum of
10 years, which is another indication it was reasonable. See United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding the sentence was
reasonable in part because it was below the statutory maximum).
In light of the above, the record does not leave a “definite and firm
conviction that the district court committed a clear error of judgment” in weighing
the § 3553(a) factors. Irey, 612 F.3d at 1190.
II. CONCLUSION
Accordingly, we affirm Fernandez’s sentence.
AFFIRMED.
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