USA v. Raul Cruz

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15776
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cr-00137-GKS-DAB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL CRUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 6, 2016)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 14-15776 Date Filed: 01/06/2016 Page: 1 of 6

-- 1 of 6 --

2
Raul Cruz appeals his sentence of 60 months of imprisonment, imposed
following his plea of guilty to committing fraud involving transactions with access
devices issued to other persons. See 18 U.S.C. § 1029(a)(5), (c)(1)(A)(ii). Cruz
argues that the district court committed significant errors that make his sentence
procedurally unreasonable. Cruz also argues that his sentence is substantively
unreasonable because the district court failed to consider his history and
characteristics or the nature and circumstances of his offense. Because there are
several procedural deficiencies in Cruz’s sentencing hearing that make his sentence
procedurally unreasonable, we need not consider the substantive reasonableness of
his sentence. We vacate and remand for resentencing.
Our review of a sentence for reasonableness is a deferential standard of
review for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.
586, 597 (2007). “A district court abuses its discretion if it applies an incorrect
legal standard, follows improper procedures in making the determination, or makes
findings of fact that are clearly erroneous.” United States v. Ellisor, 522 F.3d 1255,
1273 n.25 (11th Cir. 2008) (quoting Klay v. United Healthgroup, Inc., 376 F.3d
1092, 1096 (11th Cir. 2004)). We are required to vacate a sentence if the district
court commits “significant procedural error” by “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
Case: 14-15776 Date Filed: 01/06/2016 Page: 2 of 6

-- 2 of 6 --

3
facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51,
128 S. Ct. at 597.
The district court committed at least three procedural errors when sentencing
Cruz. First, the district court failed to calculate Cruz’s advisory guideline range.
See id. “[T]he Guidelines should be the starting point and the initial benchmark” at
sentencing, id. at 49, 128 S. Ct. at 596, and the failure of the district court to
mention Cruz’s sentencing range constitutes “significant procedural error,” id. at
51, 128 S. Ct. at 597. Although the district court stated that Cruz “[had]
a[ maximum] exposure of 15 years in prison” and that “the guidelines are not
reasonable in this case,” the district court should have identified the applicable
sentencing range before pronouncing Cruz’s sentence.
Second, the record is insufficient to establish that the district court
considered all the statutory sentencing factors and made “an individualized
assessment based on the facts presented.” Id. at 49–50, 128 S. Ct. at 596–97. The
parties discussed Cruz’s offense and stated what sentence they thought was
appropriate, but the district court did not participate in the discussion or articulate
that its decision was influenced by any factor mentioned by either party. Cruz
requested a downward variance to a sentence of home detention or confinement for
12 months and one day based on his cooperation, lack of a criminal history, and
Case: 14-15776 Date Filed: 01/06/2016 Page: 3 of 6

-- 3 of 6 --

4
familial obligations, and the government recommended a sentence of 18 months.
The district court did not address the parties’ arguments or mention section 3553(a)
before announcing that it was “going to sentence [Cruz] to five years in the Bureau
of Prisons.” And the district court imposed the sentence without giving Cruz or the
government an opportunity to address whether a sentence in excess of the
guidelines range was appropriate, even though “[s]ound practice dictates that
judges in all cases should make sure that the information provided to the parties . . .
in the hearing itself[] has given them an adequate opportunity to confront and
debate the relevant issues,” Irizarry v. United States, 553 U.S. 708, 715, 128 S. Ct.
2198, 2203 (2008). The variance no doubt surprised the parties because Cruz had
pleaded guilty in exchange for an agreement by the government to recommend a
sentence within the applicable guideline range and Cruz’s presentence report did
not identify any ground for a variance. The exchange between the district court and
the parties does not reveal whether the district court considered all the statutory
purposes of sentencing, see 18 U.S.C. § 3553(a), before deciding to vary upward
36 months from the high end of Cruz’s sentencing range.
Third, the district court failed to adequately explain its chosen sentence. A
district court is required to articulate the reasons why it selected a particular
sentence. See 18 U.S.C. § 3553(c). That explanation is necessary “to allow for
meaningful appellate review and to promote the perception of fair sentencing.”
Case: 14-15776 Date Filed: 01/06/2016 Page: 4 of 6

-- 4 of 6 --

5
Gall, 552 U.S. at 50, 128 S. Ct. at 597. An explanation is particularly important to
establish that there are “sufficient justifications” to vary outside the sentencing
range provided by the Guidelines, id. at 46, 128 S. Ct. at 594, when the variance is
based on a disagreement with the policy underlying the Guidelines, see United
States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010). Because the Sentencing
Commission formulates the Guidelines using “empirical data and national
experience, guided by a professional staff with appropriate expertise,” Kimbrough
v. United States, 552 U.S. 85, 109, 128 S. Ct. 558, 574 (2007) (quoting United
States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)),
a “closer review may be in order when the sentencing judge varies from the
Guidelines based solely on the judge’s view that the Guidelines range fails
properly to reflect § 3553(a) considerations even in a mine-run case,” id. at 109,
128 S. Ct. at 575 (internal quotation marks and citation omitted). In contrast, a
variance “attract[s] great[] respect when the sentencing judge finds a particular
case outside the heartland to which the Commission intends individual Guidelines
to apply.” Id. at 109, 128 S. Ct. at 574–75 (internal quotation marks and citation
omitted). We cannot conduct a meaningful review of Cruz’s sentence because we
cannot determine why the district court varied upward from the guidelines range.
On the one hand, the decision appears to be based on the determination that Cruz’s
offense was “outside the heartland” of cases covered by the Guidelines. See id.
Case: 14-15776 Date Filed: 01/06/2016 Page: 5 of 6

-- 5 of 6 --

6
Before the district court pronounced its sentence, it chastised Cruz for “fleec[ing]
[the public] from both ends” by purchasing stolen credit card information and by
selling “unsuspecting people” tickets to the Disney amusement park that “half the
time . . . were no good” and blamed him for contributing to the “epidemic in this
country” of credit card fraud that generated fear in the public that a “criminal[] like
you [will] steal their credit.” On the other hand, the district court also made the
“find[ing] that the guidelines are not reasonable in this case because they were set
up before this fraud became epidemic.”
Cruz’s sentence is procedurally unreasonable. The district court failed to
mention Cruz’s advisory sentencing range, to explicitly consider the statutory
sentencing factors, or to adequately explain its chosen sentence. We cannot discern
the ground on which the district court based its upward variance, which prevents us
from determining how much deference to give to the sentence imposed or whether
the variance is supported by “sufficient justifications.” See Kimbrough, 552 U.S. at
109, 128 S. Ct. at 574–75; Gall, 552 U.S. at 46, 128 S. Ct. at 594. Accordingly, we
vacate Cruz’s sentence and remand for resentencing.
VACATED AND REMANDED.
Case: 14-15776 Date Filed: 01/06/2016 Page: 6 of 6

-- 6 of 6 --