USA v. Avid Ponce

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 30, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13032
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cr-20715-KMM-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
AVID PONCE,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 30, 2012)
Before WILSON, PRYOR, and KRAVITCH, Circuit Judges.
PER CURIAM:

-- 1 of 2 --

Avid Ponce pleaded guilty to violating a condition of his supervised release
and was sentenced to 10 months imprisonment. In this appeal he argues that his
due process rights were violated because when fashioning his sentence the court
considered a portion of his criminal record that included a charge that was nolle
prossed and a charge that resulted in no action.
A sentencing court may consider a defendant’s criminal record even when it
contains charges that did not result in a conviction. Williams v. New York, 337
U.S. 241, 69 S. Ct. 1079 (1949) (holding due process rights were not denied when
a sentencing court based its decision to impose a death penalty on information
about burglaries for which the defendant had not been convicted). This principle
was codified in 18 U.S.C. § 3661: “No limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.” Additionally, the
Sentencing Commission expressly incorporated § 3661 into the Sentencing
Guidelines. See U.S. SENTENCING GUIDELINES MANUAL § 1B1.4 (citing 18
U.S.C. § 3661). Appellant’s argument has no merit.
AFFIRMED.
2

-- 2 of 2 --