United States v. Pasqualino Falco

Case: 18-13176 Date Filed: 11/01/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13176
Non-Argument Calendar
________________________
D.C. Docket No. 9:06-cr-80188-RLR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PASQUALINO FALCO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 1, 2018)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 18-13176 Date Filed: 11/01/2018 Page: 2 of 4
Pasqualino Falco appeals his 12-month-and-1-day sentence for violating the
terms of his supervised release, which was imposed on his conviction for
carjacking, in violation of 18 U.S.C. §§ 2119 and 2, and brandishing a weapon, in
violation of 18 U.S.C. § 924(c)(1)(A). He argues that the district court imposed a
substantively unreasonable sentence because it overlooked the rehabilitative
purpose of supervised release when weighing the factors at 18 U.S.C. § 3553(a).
We review the sentence imposed upon revocation of supervised release for
reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th
Cir. 2008). We review the reasonableness of a sentence under a deferential abuse-
of-discretion standard. United States v. Trailer, 827 F.3d 933, 935-36 (11th Cir.
2016). The party challenging the sentence bears the burden of showing it is
unreasonable. Id.
If a defendant violates a condition of his supervised release, the district court
may revoke a defendant’s supervised release and impose a prison term. 18 U.S.C.
§ 3583(e)(3). When revoking a term of supervised release, “the court should
sanction primarily the defendant’s breach of trust, while taking into account, to a
limited degree, the seriousness of the underlying violation and the criminal history
of the violator.” U.S.S.G. Ch. 7, Pt. A, intro. cmt. 3(b). The district court must
consider the following § 3553(a) factors: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for
2
Case: 18-13176 Date Filed: 11/01/2018 Page: 3 of 4
deterrence, protection of the public, and rehabilitation; (3) the guideline range and
the kinds of sentences available; (4) any pertinent policy statements; (5) the need to
avoid sentencing disparities; and (6) the need to provide restitution to any victims.
See 18 U.S.C. §§ 3583(e), 3553(a)(1), (a)(2)(B)-(D), & (a)(4)-(7).
The court may, in its discretion, give greater weight to some factors over
others. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The
weight given to any specific factor is committed to the sound discretion of the
district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We will
sometimes “affirm the district court even though we would have gone the other
way had it been our call.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc) (quotation omitted). However, a district court abuses its discretion
when it (1) does not consider significant, relevant factors, (2) gives an improper or
irrelevant factor significant weight, or (3) unreasonably balances proper factors
such that there is a clear error of judgment. Id.
Although we do not presume that a sentence within the advisory guideline
range is reasonable, we “ordinarily expect a sentence within the Guidelines range
to be reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)
(quotations omitted).
3
Case: 18-13176 Date Filed: 11/01/2018 Page: 4 of 4
Here, the district court acknowledged Falco’s efforts to rehabilitate himself,
including seeking stable housing, a stable job, and outpatient drug treatment.
However, the court determined that, because Falco (1) committed eight violations
of the terms of his supervised release within six months, (2) tested positive for drug
use (which the judge deemed particularly serious given his violent criminal
history), and (3) failed to report to his probation officer, the interests of deterring
future violations, protecting the public, and promoting respect for the law
demanded a sentence in the middle of the guideline range. Although Falco argues
that the court erred in placing more weight on these punitive factors than the
rehabilitative interest, the court had the discretion to assign such weights. See
Clay, 483 F.3d at 743. The court did not abuse that discretion because, although
the purpose of supervised release itself may be rehabilitative, the purpose of
revocation is to sanction the defendant’s breach of trust. See U.S.S.G. Ch. 7, Pt. A,
intro. cmt. 3(b). The reasonableness of the sentence is further supported because it
is within the guidelines range. See Hunt, 526 F.3d at 746. Accordingly, the district
court did not abuse its discretion and the sentence was substantively reasonable.
AFFIRMED.
4