United States v. Jaime Velasquez-Cabrere

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 10, 2006
No. 05-17179 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00341-CR-1-MHS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME VELASQUEZ-CABRERE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 10, 2006)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Jaime Velasquez-Cabrere (“Cabrere”) appeals his 46-month sentence for
illegal re-entry into the United States, in violation of 8 U.S.C. § 1326(a) and (b).
We find that, after correctly calculating the Guidelines sentencing range, the
district judge sufficiently considered the factors listed in 18 U.S.C. § 3553(a), and,
based on our review of the record, we also find that Cabrere’s sentence is
reasonable. Accordingly, we AFFIRM.
I. BACKGROUND
In June 2005, Cabrere was present in the United States after having been
deported and re-entering without the permission of the Attorney General or the
Secretary for the Department of Homeland Security. He had been deported in
December 2000 after a 1998 Alabama conviction and 15-year sentence for second-
degree robbery. A grand jury indicted Cabrere on one count of illegal re-entry into
the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2), and he pled guilty
without a plea agreement.
The probation officer gave Cabrere a base offense level of 8, based on
U.S.S.G. § 2L1.2 (2004). Because Cabrere had been deported after a felony
robbery conviction for which the sentence imposed exceeded 13 months, the
probation officer increased Cabrere’s offense level by 16 levels, pursuant to
§ 2L1.2(b)(1)(A). The offense level was then decreased by three levels because
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Cabrere had entered a timely guilty plea and been truthful regarding his
involvement in the offense. See U.S.S.G. § 3E1.1. This gave him a total offense
level of 21.
Cabrere’s other previous convictions for theft by shoplifting in 1994 and
carrying a concealed weapon in 1996, in addition to the 1998 robbery conviction,
resulted in a criminal history category of III. This gave him a guideline sentencing
range of 46-51 months. The statutory maximum for Cabrere’s offense was 240
months. See 8 U.S.C. § 1326(b)(2).
At the sentencing hearing, Cabrere argued for a downward variance from the
Guidelines range based on the factors listed in 18 U.S.C. § 3553(a).1 Cabrere
argued that he had become so assimilated that he was generally better suited to live
in the United States than in Honduras, his home country. Additionally, Cabrere
argued that his wife, American-born daughter, and father all lived in the United
States and, therefore, that he belonged here as well. Cabrere also pointed out that
he had not committed any new crimes, but had been arrested for a violation of a
1996 probation. The court responded by pointing out that when Cabrere had
previously resided illegally in the United States, he had committed several crimes,
1
Cabrere’s counsel expressed confusion about whether he should be requesting a
departure under the Guidelines or a variance under Booker, but it is clear that he sought a
variance under Booker. See R3 at 3-4.
3
including carrying a concealed weapon and robbery. The court observed that
Cabrere had not supported his family since he resided in the United States, and
Cabrere conceded this fact. R3 at 8.
Based on the fact that Cabrere had previously been convicted of shoplifting,
carrying a concealed weapon, and robbery, in addition to the present charge, the
court found that a sentence within the advisory guideline range, but at the bottom
end of it, was appropriate. Carbrere was sentenced to 46 months in prison. The
court noted that, during his incarceration, Cabrere would have the opportunity to
“recognize his responsibilities both as a father and . . . a husband.” Id. at 11. The
court also noted that the sentence was “just punishment for the defendant’s
involvement in this offense [and met] the sentencing goals of punishment and
general deterrence.” Id. at 13. Neither party raised any objections to the sentence
imposed. See id. at 13-14. On appeal, Cabrere now argues that the district court
imposed an unreasonable sentence because it did not properly consider the factors
in 18 U.S.C. § 3553(a), particularly the nature and circumstances of the offense
and Cabrere’s history and characteristics.
II. DISCUSSION
After the Supreme Court’s opinion in United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), the Sentencing Guidelines are advisory and we review a
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defendant’s ultimate sentence for reasonableness. See United States v. Eldick, 443
F.3d 783, 787 (11th Cir. 2006) (per curiam); United States v. Talley, 431 F.3d 784,
785 (11th Cir. 2005) (per curiam). In sentencing, the district court must first
consult the Guidelines and correctly calculate the guideline range, and then
consider the factors listed in 18 U.S.C. § 3553(a). Talley, 431 F.3d at 786. 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
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. (citing 18 U.S.C. § 3553(a)).
“[N]othing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005). Further, “[r]eview for reasonableness is deferential,” and “there is a
range of reasonable sentences.” Talley, 431 F.3d at 788. Finally, we expect a
sentence within the applicable guideline range to be reasonable. Id.5
Here, the district court correctly calculated the guideline range and clearly
considered the Guidelines advisory. See R3 at 10. The court’s expressed concern
over the number of Cabrere’s past convictions demonstrates that it considered
Cabrere’s past criminal conduct and the circumstances surrounding the present
charge. The court’s observation that Cabrere had thus far failed at maintaining
family ties and the suggestion that his sentence would allow him the opportunity to
work on those relationships demonstrates the court’s consideration of Cabrere’s
own history and characteristics. Id. at 8, 11. The court also explicitly considered
the goals of punishment and general deterrence. Id. at 13. Finally, Cabrere’s
sentence at the bottom end of the Guidelines range, which was also well below the
statutory maximum, carries an expectation of reasonableness. See Talley, 431 F.3d
at 788; United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006) (per
curiam) (finding a sentence reasonable where it was almost one-third of the
statutory maximum). Thus, the court clearly considered several factors listed in §
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3553(a) in addition to having properly considered the correctly calculated
Guidelines range.2 Accordingly, we find Cabrere’s sentence to be reasonable.3
III. CONCLUSION
Cabrere appeals his 46-month sentence for illegal re-entry into the United
States. We find that, after correctly calculating the Guidelines sentencing range,
the district court sufficiently considered the factors in 18 U.S.C. § 3553(a) and
Cabrere’s arguments. In light of this and our review of the record, we find the
district court’s sentence reasonable, and we AFFIRM.
2
Cabrere argues that the district court did not make a sufficient record to permit proper
appellate review. First, however, we find the record sufficient to permit proper review. Second,
we have already held, for purposes of review for reasonableness, that a district court need not
necessarily discuss every single § 3553(a) factor in imposing a sentence to prove he has
considered them. Scott, 426 F.3d at 1329-30.
3
We need not address the government’s contention that we lack jurisdiction to review a
district court’s decision not to depart downward because Cabrere, in failing to raise an issue of
downward departure in his counseled brief, has abandoned it. See United States v. Dockery, 401
F.3d 1261, 1262-63 (11th Cir.) (per curiam), cert. denied, 126 S. Ct. 442 (2005).
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