United States v. Dagoberto Baez-Barrios

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 19, 2006
No. 05-12929
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00604-CR-T-23MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAGOBERTO BAEZ-BERRIOS,
a.k.a. Digoberto Baez-Barrios,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 19, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Dagoberto Baez-Berrios appeals his 46-month sentence, imposed
after he was convicted of illegally re-entering the United States after he had
committed an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). He
argues that his sentence is unreasonable, claiming that it overstates the seriousness
of his offense and does not adequately take into account the 18 U.S.C. § 3553(a)
factors beyond the Guidelines range, and his criminal history category
overrepresents his criminal history.
Title 18 U.S.C. § 3742(a) allows a defendant to appeal an otherwise final
sentence only if it was imposed in violation of the law, resulted from an incorrect
application of the Guidelines, exceeded the applicable Guideline range, or was
“plainly unreasonable” and imposed for an offense for which there is no applicable
Guideline. See United States v. Erves, 880 F.2d 376, 380-81 (11th Cir. 1989). A
sentence that falls within the applicable Guideline range and is not alleged to be in
violation of the law or imposed as a result of an incorrect application of the
Guidelines is not appealable. United States v. Alamin, 895 F.2d 1335, 1337 (11th
Cir. 1990). Challenges to the district court’s refusal to depart downward from the
Guideline range are generally not appealable unless the district court believed it
lacked the authority to do so. United States v. Fossett, 881 F.2d 976 (11th Cir.
1989). After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 764-66, 160 L.
Ed. 2d 621 (2005), we still cannot review a district court’s decision not to apply a
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downward departure, except to the extent noted in Fossett. United States v.
Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
After the district court accurately calculates the Guidelines range, it “may
impose a more severe or more lenient sentence” that we review for reasonableness.
United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). Such review is
deferential. United States v. Talley, No. 05-11353, ___F.3d ___ (11th Cir. Dec. 2,
2005). “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in the light of both [the] record and the factors in
§ 3553(a).” Id.1
In fashioning a reasonable sentence, a district court should be guided by the
factors in 18 U.S.C. § 3553(a). Winingear, 422 F.3d at 1246. District courts do
not need to establish the reasonableness of the sentences they impose by explicitly
considering every factor from §3553(a) on the record; some indication in the
record that the court adequately and properly considered appropriate factors in
conjunction with the sentence will be sufficient when the district court imposes a
sentence within the Guidelines range. United States v. Scott, 426 F.3d 1324, 1329
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We note that the government argues that we do not have the authority to hear Baez-
Berrios’s reasonableness challenge under 18 U.S.C. § 3742(a) because the sentence is within the
Guidelines range. However, Booker, 543 U.S. at __, 125 S. Ct. at 764-66, directs appellate
courts to review sentences for reasonableness in light of the § 3553(a) sentencing factors,
whether or not the district court sentenced within the applicable Guideline range, so we do have
authority to hear Baez-Berrios’s reasonableness claim. United States v. Martinez, No. 05-12706
(11th Cir. Jan. 9, 2006).
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(11th Cir. 2005).
To the extent the Baez-Berrios is arguing that the district court did not depart
downward on his criminal history category or the applicable Guideline range, this
type of discretionary refusal to depart downward from the applicable Guideline
range cannot be reviewed by us, even after Booker. Winingear, 422 F.3d at 1245.
Furthermore, Baez-Berrios made no objections to the Guidelines’ calculation and
conceded that his criminal history was legally appropriate.
Baez-Berrios’s arguments that his sentence is unreasonable because the
district court did not appropriately consider the § 3553(a) factors is without merit.
The record demonstrates that the district court adequately and properly considered
the § 3553(a) factors and the advisory Guidelines range. In imposing the sentence
at the low end of the guideline range, the district court explicitly acknowledged
that the sentence properly considered both the policies of the advisory Guidelines
and § 3553(a). The district court also considered the facts as contained in the PSI,
so it implicitly considered the nature and circumstances of the offense and history
and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). The district court
did not need to state on the record its explicit consideration of every § 3553(a)
factor. Scott, 426 F.3d at 1329. Furthermore, the Guideline range takes into
account many of the factors embodied in § 3553(a). See 28 U.S.C. § 991(b)(1)(A)
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(stating that one role of the United States Sentencing Commission is to “assure the
meeting of the purposes of sentencing as set forth in” § 3553(a)).
Baez-Berrios’s sentence is also at the low end of the Guideline range and
significantly lower than the statutory maximum of 20 years. See Winingear, 422
F.3d at 1246 (comparing, as one indication of reasonableness, the actual prison
term imposed against the statutory maximum). Based on these considerations, we
conclude that the sentence is not unreasonable. For the above-stated reasons, we
affirm Baez-Berrios’s sentence.
AFFIRMED.
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