United States v. Armando Vicente

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10644 DECEMBER 9, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00040-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO VICENTE,
a.k.a Cornelio Domingo Ajtum-Vicente,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 9, 2005)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-appellant, Armando Vicente, appeals his 30-month sentence for
re-entering the United States as a deported alien in violation of 8 U.S.C. §§ 1326(a)
and (b)(2). Vicente asserts that the district court erroneously believed it lacked the
authority under U.S.S.G. § 5G1.3 (2003) to impose a federal sentence concurrent
with his state sentence and that his sentence is unreasonable under United States v.
Booker, 543 U.S.___, ___, 125 S.Ct. 738, 765-66 (2005), because the district court
erred in failing to consider all of his proffered mitigating factors as well as other
factors listed in 18 U.S.C. § 3553(a). We find no error and AFFIRM.
I. BACKGROUND
Vicente entered a plea of guilty to an indictment charging him with violation
of 8 U.S.C. §§ 1326(a) and (b)(2), for illegally re-entering the United States after
having been deported in connection with an aggravated felony conviction. His
presence in the United States had been discovered when he was arrested by the
Georgia Sheriff’s Office and charged with forgery when he was found in
possession of a false social security card. Vicente was convicted of forgery and
sentenced on 4 August 2004 to three years in custody upon service of 60 days in
jail, with the remainder to be served on probation. The state sentence was
completed on 3 October 2004. Because Immigrations and Customs Enforcement
agents had been notified immediately upon his arrest, however, and because their
investigation revealed that Vicente had previously been deported in November
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2003 after a conviction for possession with intent to distribute cocaine, he has been
held in custody since his arrest.
The base offense level for unlawful reentry into the United States, pursuant
to the Sentencing Guidelines is 8. U.S.S.G. § 2L1.2(a) (2003). Vicente’s previous
conviction for possession of cocaine with intent to distribute, because the sentence
imposed was thirteen months or less, increased the offense level by 12. U.S.S.G. §
2L1.2(b)(1)(B). Vicente also got a three-point reduction for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1. This left him with a total offense
level of 17.
Vicente began with four criminal history points but, because the instant
offense was committed while he was still on probation for his cocaine conviction,
the Guidelines required an addition of two points. U.S.S.G. § 4A1.1(d). The
Guidelines also required an additional point because Vicente reentered the United
States less than two years following his release from custody on the cocaine
conviction. U.S.S.G. § 4A1.1(e). All this resulted in a criminal history category
of IV, and a guideline imprisonment range of 37 to 46 months.
At the sentencing hearing, the district court overruled Vicente’s objection to
the criminal history points added for his still being on probation for the controlled
substance violation when he re-entered the country. The court explained that the
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sentence had been suspended only “upon deportation and [Vicente’s] remaining
outside” the United States – conditions Vicente broke upon re-entry. R3 at 5.
Arguing that he had, “in essence, lost three months worth of time,” Vicente asked
the district court to consider a lower sentence because he had been in custody from
25 May to 4 August when he was sentenced to 60 days (to run until October 3) for
his forgery conviction. Id. at 9. Explaining that because the sentencing court had
designated that the sentence begin to run on 4 August, “that’s what [it had]
intended,” the court also overruled this objection. Id.
Vicente also offered numerous grounds for mitigation of his sentence
including that his criminal history score overstated his true criminal history and
that he had re-entered the country to work and send money home to his mother.
He asked the court to consider a concurrent sentence under U.S.S.G. § 5G1.3,
without reference to any specific subsection of that guideline. He argued that the
forgery and re-entry were “all sort of wrapped up.” Id. at 10. Finally, Vicente
asked the court, “for any number of the reasons . . . cited,” to impose a sentence
below that of the advisory guidelines. Id.
The district court found that § 5G1.3 did not apply to his case because the
state forgery conviction and the illegal re-entry were “separate and distinct
crimes.” Id. at 9. The court sentenced Vicente to 30 months imprisonment – seven
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months below the low end of the guidelines range, explaining that Vicente’s
“criminal record was not one that was so egregious,” and that the sentence imposed
was “within the range of sentences normally imposed in this district for these types
of offenses.” Id. at 13-14. The court further explained that the two most important
sentencing considerations in cases such as Vicente’s were sufficiency of
punishment and deterrence and found that 30 months would serve to satisfy both.
Vicente makes two arguments on appeal. First, he argues that the district
court erroneously believed it did not have the authority to impose a federal
sentence concurrent to his state sentence for forgery under U.S.S.G. § 5G1.3.
Second, he argues that the court erred by failing to consider all possible mitigating
factors.
II. DISCUSSION
A. Concurrent Sentence
We review the application of U.S.S.G. § 5G1.3 de novo. United States v.
Bidwell, 393 F.3d 1206, 1209 (11th Cir. 2004), cert. denied, 125 S.Ct. 1956(2005). U.S.S.G § 5G1.3 governs sentences for defendants who are convicted of a
crime while serving an undischarged sentence for a prior conviction. Subsection
(a) mandates consecutive sentences if the instant offense was committed while the
defendant was serving a term of imprisonment. If subsection (a) does not apply,
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subsection (b) provides that if a term of imprisonment “resulted from another
offense that is relevant conduct to the instant offense of conviction” and “was the
basis for an increase in the offense level,” then “the court shall adjust the sentence
for any period of imprisonment already served on the undischarged term of
imprisonment if the court determines that such period will not be credited to the
federal sentence by the Bureau of Prisons” and that “the sentence for the instant
offense shall be imposed to run concurrently to the remainder of the undischarged
term of imprisonment.” Id. § 5G1.3 (b). When neither subsection (a) nor (b) of §
5G1.3(b) applies, “the district court has discretion to impose a consecutive
sentence to achieve a reasonable punishment.” United States v. Bradford, 277 F.3d
1311, 1317 (11th Cir. 2002) (per curiam); see also U.S.S.G. § 5G1.3(c), p.s.
Neither §§ 5G1.3(a) nor (b) applies; Vicente did not commit his re-entry
offense while serving a term of imprisonment and his state forgery conviction was
not relevant conduct to his illegal re-entry offense. Further, Vicente’s offense level
was not increased by the forgery conviction. Since neither of the first subsections
applies, the court had discretion under § 5G1.3(c) to impose a federal sentence
concurrent with Vicente’s state sentence, but was not required to do so.
Vicente argues that the district court’s comment that his state forgery
conviction and federal illegal re-entry conviction were “separate and distinct
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crimes” shows that it thought it lacked the authority to impose a concurrent
sentence. This argument is without merit. At sentencing, neither Vicente nor the
court explicitly identified which subsection of § 5G1.3 they were discussing. The
comments only make sense, however, in reference to subsection (b). As discussed
and as conceded by Vicente in his brief, subsection (b) does not apply to this case.
That the court did in fact recognize its authority to impose a lesser or concurrent
sentence under U.S.S.G. § 5G1.3(c) is borne out by the court’s express statement
that the fact that Vicente had been in custody since 25 May “was one of the factors
that [it] considered in imposing the sentence at the level that [it] did.” R3 at 14.
The court exercised this discretionary authority in imposing a sentence seven
months below the applicable guideline range. Accordingly, we find no error in the
court’s application of U.S.S.G. § 5G1.3.
B. 3553(a) Factors
Vicente also argues that, under post-Booker advisory guidelines, the district
court erred in failing to consider all the mitigating evidence proffered by him in
relation to the 18 U.S.C. § 3553(a) factors.1 After a district court has accurately
calculated the guideline range, it “may impose a more severe or more lenient
1
To the extent that Vicente is arguing that the court did not depart enough from the
Guidelines, a district court’s discretionary decision to depart downward from the applicable
Guideline range cannot be reviewed for its sufficiency, even after Booker. See United States v.
Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (per curiam).
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sentence.” United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005)
(citing Booker). We review such a sentence for reasonableness. United States v.
Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005) (per curiam). In determining
whether a sentence is reasonable, the court should be guided by the factors in 18
U.S.C. § 3553(a). Booker, 125 S. Ct. at 765-66; Winingear, 422 F.3d at 1246. To
establish the reasonableness of a sentence, however, a district court need not
explicitly discuss every §3553(a) factor on the record. United States v. Scott, ___
F.3d ___, No. 05-11843, 2005 WL 2351020, at *4 (11th Cir. Sept. 27, 2005). An
indication that the court “adequately and properly considered the § 3553(a)
sentencing factors and the advisory Guidelines range” in conjunction with the
sentence will be sufficient. Id. at *5.
The district court imposed a sentence that was seven months below the low
end of the guideline range based, in part, on the fact that Vicente’s criminal history
was not “so egregious.” R3 at 14. Thus, first, the court did consider Vicente’s
proffered mitigating factor that his criminal history overstated the seriousness of
the offense. See 18 U.S.C. § 3553(a)(1). Second, the court observed that the
Vicente’s sentence was consistent with other sentences for crimes of this nature in
this district. See § 3553(a)(6). Third, the court expressly considered the factors of
punishment and deterrence, and proceeded to discuss how it thought this particular
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sentence would serve those purposes. See § 3553(a)(2)(A)-(B). Finally, the court
imposed a sentence considerably lower than both the 46-month high end of the
Guideline range and 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 find
the sentence imposed by the district court to be reasonable.
III. CONCLUSION
Vicente’s appeal of his sentence, which fell below the Guidelines range for
his conceded offense level and criminal history category, on the grounds that the
court misunderstood its authority under U.S.S.G. 5G1.3 and failed to consider all
factors listed under 18 U.S.C. § 3553(a) lacks merit. First, the court considered
Vicente’s state sentence in fashioning his federal sentence, thereby demonstrating
that it did not believe it lacked authority to impose a concurrent sentence under §
5G1.3. Second, the court did consider several relevant § 3553(a) factors in
imposing Vicente’s sentence, and the sentence was reasonable in light of those
factors. Accordingly, we AFFIRM.
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