United States v. Rey Jamarron

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13045
Non-Argument Calendar
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D.C. Docket No. 1:12-tp-20072-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REY JOMARRON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 9, 2016)
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Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Rey Jomarron appeals his 24-month sentence, imposed above the advisory
Sentencing Guidelines range and at the statutory maximum, following revocation
of his supervised release. On appeal, Jomarron argues that his sentence was
procedurally and substantively unreasonable. After careful consideration, we
affirm.
I. BACKGROUND
Jomarron pled guilty to possession of counterfeit credit cards with intent to
defraud, in violation of 18 U.S.C. §§ 1029(a)(3), (2). He was sentenced to two
years’ imprisonment followed by three years of supervised release.
Some time after his release, Jomarron was arrested in Pembroke Pines,
Florida, when police received a call alerting them to a potential fraudulent
transaction at a local Best Buy store. After receiving a description of the suspect,
Officer Keith Forseth observed an individual, Jomarron, who matched the
description walking through the parking lot of the Best Buy and carrying a Best
Buy shopping bag. Forseth identified himself and directed Jomarron to sit on a
curb in the parking lot. Shortly after taking a seat, Jomarron dropped his bag and
attempted to flee. Forseth managed to apprehend Jomarron. He then searched
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Jomarron and found a laptop in Jomarron’s shopping bag, a receipt for the laptop,
and two debit cards in Jomarron’s name.
Another officer, Thomas Moran, determined that the debit cards were
counterfeit after using a magnetic strip card reader to decipher the information
encoded on the cards’ magnetic strips. The reader revealed that the cards were
linked to Bank of America accounts but had the appearance of NetSpend Visa
credit cards. Jomarron was not an authorized user on either account even though
his name appeared on both cards. Moran was also able to determine that Jomarron
had used one of the counterfeit cards to pay for the new laptop in his possession.
Police arrested Jomarron and subsequently released him after he posted bail.
After being released, Jomarron never notified his probation officer that he had been
arrested. Instead, Jomarron fled to Panama. United States Marshalls eventually
apprehended Jomarron when he attempted to reenter the United States at the Texas
border.
The probation department filed a superseding petition alleging that Jomarron
had violated the terms of his release by committing seven offenses: (1) illegal use
of a credit card, (2) forgery or alteration of a credit card, (3) grand theft, (4)
resisting an officer, (5) failing to notify probation within 72 hours of being arrested
or questioned by police, (6) failing to notify probation of a change in residence,
and (7) leaving the judicial district without prior permission from probation. The
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probation department recommended that the district court revoke Jomarron’s
supervised release and calculated a Sentencing Guidelines range of four to 10
months’ imprisonment. The statutory maximum sentence was 24 months.
At the revocation hearing, Jomarron admitted to violations five through
seven of the superseding petition but did not admit to violations one through four.
After hearing witness testimony and argument from counsel, the district court
found Jomarron guilty of violations one through four. The court dismissed
violations five through seven on the government’s motion.
At sentencing, Jomarron asked for a sentence at the high end of the
guidelines range. He explained that he had struggled to find work after being
released. He further described how he had fled to Panama because he was
concerned about how his mother, who was very ill at the time, would be affected
by his incarceration. He also claimed that his co-conspirators to the credit card
scheme had threatened to shoot him if he did not leave the country.
The district court ultimately revoked Jomarron’s supervised release and
sentenced him to 24 months’ imprisonment, the statutory maximum. The court
noted that it had “considered the statements of the parties, the testimony . . . and
the information contained in [Jomarron’s] violation report.” Revocation Hr’g Tr.
at 31 (Doc. 21).1 The court further explained that a sentence at the statutory
1
“Doc.” refers to the docket entry in the district court record in this case.
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maximum was appropriate because Jomarron had “previously [been] convicted of
possession of counterfeit access devices” and he had “now [been] found to have
violated his supervised release by the very same conduct for which he was
[previously] sentenced.” Id. at 32. Jomarron objected to the procedural and
substantive reasonableness of the imposed sentence. This is his appeal.
II. DISCUSSION
“Pursuant to 18 U.S.C. § 3583(e), upon finding that [a] defendant violated a
condition of supervised release, a district court may revoke the term of supervised
release and impose a term of imprisonment” after considering certain factors set
forth in 18 U.S.C. § 3553(a). United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008). These factors include the nature and circumstances
of the offense, the history and characteristics of the defendant, the need to afford
adequate deterrence to criminal conduct, the need to protect the public from further
crimes, the pertinent policy statements of the Sentencing Commission, the need to
avoid unwarranted sentencing disparities, and the need to provide restitution to
victims. 18 U.S.C. § 3583(e), 3553(a). When the district court determines that a
variance from the guidelines range is appropriate, it must then consider the extent
of the variance and ensure that there is a sufficiently compelling justification for it.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
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We review a sentence imposed upon the revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). In doing so, we review for an abuse of discretion. Gall v. United States,
552 U.S. 38, 41 (2007). This standard reflects the due deference we give to district
courts because they have an “institutional advantage in making sentencing
determinations.” United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir.
2010) (internal quotation marks omitted). Thus, “[w]e may vacate a sentence only
if we are left with the definite and firm conviction that the district court committed
a clear error of judgment.” Id. (internal quotation marks omitted). We conduct a
de novo review, however, of the sufficiency of a district court’s explanation of a
defendant’s sentence. United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir.
2006).
Reviewing the reasonableness of a sentence is a two-step process. “We look
first at whether the district court committed any significant procedural error and
then at whether the sentence is substantively reasonable under the totality of the
circumstances.” Tome, 611 F.3d at 1378. The party challenging the sentence bears
the burden of showing it is unreasonable in the light of the record and the relevant
factors. Id. Jomarron contends that his sentence is both procedurally and
substantively unreasonable. We address these arguments in turn.
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A. Procedural Reasonableness
“A sentence may be procedurally unreasonable if the district court
improperly calculates the Guidelines range, treats the Guidelines as mandatory
rather than advisory, fails to consider the appropriate statutory factors, selects a
sentence based on clearly erroneous facts, or fails to adequately explain the chosen
sentence.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).
Jomarron contends that the district court committed procedural error by failing to
explain adequately the basis of his sentence. Jomarron notes, in particular, that the
court never explicitly stated it had considered the relevant policy statements of the
Sentencing Guidelines.
Jomarron is correct that a district court must explain its reasons for imposing
a particular sentence. Rita v. United States, 551 U.S. 338, 356 (2007); 18 U.S.C. §
3553(c). This explanation, however, need not be exhaustive. Rather, an
acknowledgement by the court that it has considered the defendant’s arguments
and the factors listed in § 3553(a) will satisfy this requirement. United States v.
Dorman, 488 F.3d 936, 938 (11th Cir. 2007). Moreover, “[t]he district court need
not state on the record that it has explicitly considered each factor and need not
discuss each factor.” Id. We typically conclude that a district court failed to
adequately explain a sentencing decision only “when the record contain[s] no
evidence that the district court had considered, or the defendant had even raised,
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the applicability of any of the § 3553(a) factors.” United States v. Smith, 568 F.3d
923, 928 (11th Cir. 2009).
We are satisfied with the sufficiency of the district court’s explanation of
Jomarron’s sentence. The court heard and considered Jomarron’s arguments for
why he should receive a sentence within the guidelines range. Jomarron’s counsel
explained that Jomarron had difficulty finding work after being released and had
fled the country after his arrest because he was threatened and because he was
concerned his imprisonment might adversely affect his ill mother. Jomarron
expressed remorse and apologized for his conduct.
Apart from considering Jomarron’s and his counsel’s presentations, the court
noted that Jomarron had “violated his supervised release by the very same conduct
for which he was [previously] sentenced.” Revocation Hr’g Tr. at 32 (Doc. 21).
The court also stated that it had considered Jomarron’s “criminal history” and the
“statements of the parties, the testimony . . . and the information contained in
[Jomarron’s] violation report” in deciding the appropriate sentence. Id. at 31-32.
Although the district court never explicitly referenced the § 3553(a) factors,
the record clearly demonstrates that the court weighed them, both in considering
Jomarron’s arguments and in deciding that a variance was appropriate. Jomarron’s
protestations to the contrary notwithstanding, the court was under no obligation to
state on the record that it had considered all of the relevant § 3553(a) factors
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(including the policy statements of the Sentencing Commission) when imposing its
sentence. See Dorman, 488 F.3d at 938. The statements of the parties, the
testimony of Officers Forseth and Moran, and Jomarron’s violation report, all of
which the court considered, concerned the nature and circumstances of Jomarron’s
offense. Similarly, the court clearly weighed Jomarron’s history and
characteristics when it based Jomarron’s sentence on his “criminal history.” Id. at
32. Finally, the fact that Jomarron had violated his supervised release by engaging
in the same conduct for which he was previously convicted spoke to Jomarron’s
propensity for engaging in criminal conduct, and thus whether there was a need to
deter future criminal conduct and protect the public from him. Therefore,
although the district court “fail[ed] to articulate specifically the applicability . . . of
each of the section 3553(a) factors, . . . the record demonstrates that the pertinent
factors were taken into account.” Smith, 568 F.3d at 927. That is all the law
requires.
B. Substantive Reasonableness
Having determined that the district court’s sentencing decision was
procedurally sound, we next consider the substantive reasonableness of Jomarron’s
sentence. A district court abuses its discretion and imposes a substantively
unreasonable sentence if it “(1) fails to afford consideration to relevant [§ 3553(a)]
factors that were due significant weight, (2) gives significant weight to an improper
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or irrelevant factor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.
2015) (internal quotation marks omitted). “The weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court
. . . .” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal quotation
marks omitted). In imposing an upward variance, the district court may consider
any information relevant to a defendant’s background, character, and conduct. See
Tome, 611 F.3d at 1379. “[I]t is only the rare sentence that will be substantively
unreasonable.” Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks
omitted).
Jomarron contends that his sentence of 24 months’ imprisonment was
unduly harsh for two reasons. First, he argues that the district court failed to
consider relevant § 3553(a) factors. Second, he argues that a sentence within the
guidelines range would have sufficiently accounted for his violation of supervised
release. We reject both arguments.
Jomarron argues that the district court failed to properly consider the
§ 3553(a) factors, but, as we have already discussed, the court’s explanation of
Jomarron’s sentence demonstrated that it considered and weighed them. Notably,
a district court “abuses its considerable discretion and imposes a substantively
unreasonable sentence only when it . . . fails to afford consideration to
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relevant factors that were due significant weight.” Id. (emphasis added). Even if
Jomarron had adequately demonstrated that the district court failed to consider all
of the § 3553(a) factors—and he has not—he failed to show that any factors
disregarded by the court were relevant and due significant weight. Jomarron’s
argument therefore fails to demonstrate that his sentence is substantively
unreasonable.
Jomarron’s second argument, that a sentence within the guidelines range
would have been sufficient, fares no better than his first argument. In order to
prevail on his appeal, Jomarron has “the burden of showing that [his] sentence is
unreasonable in light of the entire record.” Id. In other words, he must show that
the sentence he received is unreasonable, not simply that a different sentence
would have served as an adequate punishment. Although the sentencing court
must ensure that there is a sufficiently compelling justification for any variance
from the guidelines range, Tome, 611 F.3d at 1378, a reviewing court may not
presume a sentence is unreasonable simply because it is outside the guidelines
range. Gall, 552 U.S. at 51. Indeed, the Supreme Court has “forbidden us from
requiring extraordinary circumstances to justify” a sentence outside the guidelines
range. Rosales-Bruno, 789 F.3d at 1256 (internal quotation marks omitted).
Ultimately, despite the fact that Jomarron’s sentence represented a
significant variance from the guidelines range, we cannot conclude that the district
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court committed a clear error of judgment in imposing it. Jomarron originally pled
guilty to possession of counterfeit credit cards with intent to defraud. After serving
his prison sentence, he was released only to be arrested again for the same conduct.
And instead of taking accountability for his conduct, he fled police not once, but
twice: he attempted to flee after he was initially identified by a police officer in
the Best Buy parking lot and he fled the country after he was released on bail. The
district court acted within the bounds of its discretion in deciding that this conduct
warranted a significant upward variance. “[T]he sentence was within the outer
bounds of the district court’s substantial sentencing discretion—in the ballpark of
permissible outcomes.” Id. at 1257 (internal quotation marks omitted).
III. CONCLUSION
We conclude that Jomarron has failed to demonstrate that his sentence is
procedurally or substantively unreasonable. We therefore affirm the sentence the
district court imposed.
AFFIRMED.
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