United States v. Sandoval-Escobar

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 22, 2011
No. 10-13243 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:09-cr-00106-JES-SPC-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
JOSE SANDOVAL-ESCOBAR,
llllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 22, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Jose Sandoval-Escobar appeals his below-guideline 30-month sentence,
imposed after he pleaded guilty to illegal reentry, in violation of 8 U.S.C.
§ 1326(a) and (b)(2).
Sandoval-Escobar, a citizen of Guatemala, entered the United States in
1990. In 2000, he was deported following his conviction for cocaine trafficking.
In 2007, he illegally reentered and was later arrested in Florida for conduct
unrelated to the instant offense. After he was turned over to federal authorities, he
pleaded guilty to illegal reentry.
The probation officer calculated Sandoval-Escobar’s sentencing range as 41
to 51 months, due in part to a base offense level of 8 under U.S.S.G. § 2L1.2 and a
16-level enhancement due to the prior drug-trafficking conviction,
§ 2L1.2(b)(1)(A)(i). The prior conviction also increased Sandoval-Escobar’s
criminal history category to II.
Sandoval-Escobar raised no objections to the sentencing calculations, but he
requested a downward variance from the guideline range, arguing that 18 months
would be sufficient under 18 U.S.C. § 3553(a). The court granted a downward
variance to 30 months’ imprisonment. Although the court expressed concern that
a single, thirteen year-old conviction formed the basis for the sentencing
enhancement, the court nevertheless found that a 30-month sentence was
appropriate under § 3553(a). This appeal followed.
2
Sandoval-Escobar argues that his sentence is substantively unreasonable
because the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) places
undue weight on a single prior conviction, resulting in a sentence that is greater
than necessary to comply with 18 U.S.C. § 3553(a). He points to statistics
indicating lower rates of recidivism in older offenders and offenders sentenced to
shorter terms of imprisonment. He also contends that the § 2L1.2(b)(1)(A)(i)
enhancement results in “unwarranted similarities” with other more serious crimes.
Sandoval-Escobar further argues that the § 2L1.2(b)(1)(A)(i) enhancement results
in illegal double-counting of the prior conviction, but acknowledges that such
argument is foreclosed by United States v. Adeleke, 968 F.2d 1159 (11th Cir.
1992). Finally, he argues for the first time in his reply brief that the district court
failed to adequately explain its reasoning regarding the extent of the downward
variance.
We engage in a two-step process in reviewing sentences of imprisonment.
United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). First, we look for
any significant procedural errors, such as improper application of the guidelines,
failure to consider § 3553(a) factors, basing a sentence on clearly erroneous facts,
or failure to adequately explain the chosen sentence. Id. Second, we review the
substantive reasonableness of a sentence under “a deferential abuse-of-discretion
3
standard” regardless of whether the sentence is “inside, just outside, or
significantly outside the Guidelines range.” Id. at 1090-91 (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)). In this step, we take into account the “totality of
the circumstances” and “give due deference to the district court's decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Livesay, 525 F.3d
at 1091.
The burden rests on the party challenging the sentence to show that the
“sentence is unreasonable in light of the record and the § 3553(a) factors.” United
States v. Bohannon, 476 F.3d 1246, 1253 (11th Cir. 2007). We will “vacate the
sentence if, but only if, we are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190
(2010) (en banc), petition for cert. filed, (U.S. Nov. 24, 2010) (No. 10-727). It is
only in rare cases that this standard is met. See id. at 1190-91 (noting that “[o]ut
of hundreds of sentences” reviewed since Booker, “only four [have been] found to
be substantively unreasonable”).
Sandoval-Escobar raises two issues of procedural reasonableness. But we
need not address his first argument - that the district court failed to properly
4
explain its reasoning - because he raised it for the first time in his reply brief. See,
e.g., United States v. Evans, 473 F.3d 1115, 1120 (11th Cir. 2006) (“[a]rguments
raised for the first time in a reply brief are not properly before a reviewing court”).
As to his second argument, although we note that Sandoval-Escobar failed
to raise the double-counting argument in the district court, the argument fails no
matter what standard of review we apply; this court specifically considered and
rejected the double-counting argument in Adeleke, 968 F.2d at 1161.
Sandoval-Escobar also challenges the substantive reasonableness of his
sentence. But he has not presented any evidence that the below-guidelines
sentence was unreasonable under the totality of the circumstances. In essence, he
argues that although the district court considered his arguments and specifically
gave weight to his criminal history in granting a downward variance, the district
court committed a clear error in failing to give greater weight to these factors and
grant him an eighteen-month sentence. This argument fails.
The district court specifically considered the impact of the
§ 2L1.2(b)(1)(A)(i) enhancement in the context of Sandoval-Escobar’s criminal
history and addressed its concerns by granting an eleven-month downward
variance. Moreover, although the statistical evidence raised by Sandoval-Escobar
regarding recidivism was not proffered at the sentencing hearing, the district court
5
heard and considered factors in Sandoval-Escobar’s personal circumstances,
which indicated a lower likelihood of recidivism.
Third, Sandoval-Escobar’s argument that his sentence results in a
“unwarranted similarities” with “more serious crimes” relies on a case where the
Supreme Court considered the reasonableness of a lower sentence of a
“co-conspirator” who had withdrawn from the conspiracy as compared to other
co-conspirators. Gall, 552 U.S. at 55. We have not extended this “unwarranted
similarities” rationale to require sentencing courts to engage in a broad
comparison to other unrelated crimes and criminals subject to the same guideline.
In fact, “ordinarily we will expect a sentence within the Guidelines range to be
reasonable.” United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009), cert.
denied 131 S.Ct. 436 (2010). Here, Sandoval-Escobar received a sentence well
below both the minimum guideline range and the twenty-year maximum sentence.
Thus, Sandoval-Escobar failed to demonstrate that his sentence was unreasonable.
AFFIRMED.
6