USA v. Cedano

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEP 16, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________
No. 10-13557
Non-Argument Calendar
_________________
D. C. Docket No. 1:10-cr-20221-JAL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOMINGO CORPORAN CEDANO,
a.k.a. Carlos Manuel Perez Soto,
a.k.a. Jose Ortiz Lopez,
Defendant - Appellant.
_________________
Appeal from the United States District Court
for the Southern District of Florida
__________________
(September 16, 2011)
Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.

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PER CURIAM:
Domingo Corporan Cedano appeals the reasonableness of his 54-month
sentence imposed for illegal re-entry, 8 U.S.C. § 1326. No reversible error has
been shown; we affirm.
We review a sentence “whether within or without the guidelines . . . only for
reasonableness under an abuse of discretion standard.” United States v. Irey, 612
F.3d 1160, 1186 (11th Cir. 2010), cert. denied, (U.S. Apr. 4, 2011) (No. 10-727).
To be upheld on appeal, a sentence must be reasonable both procedurally and
substantively. United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).
The party challenging the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both the record and the 18 U.S.C. §
3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).1
On appeal, Cedano argues that the guideline under which his guidelines
range was calculated -- U.S.S.G. § 2L1.2 -- inherently is unreasonable because it
double-counts a defendant’s criminal history, resulting in an enhancement for
Under section 3553(a), a district court should consider the nature and circumstances of1
the offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, provision for the medical
and educational needs of the defendant, the guidelines range, policy statements of the Sentencing
Commission, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(1)-(7).
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certain crimes no matter the specific circumstances of those crimes. Such double-2
counting, he contends, places too much emphasis on a defendant’s criminal history
and does not reflect the sentencing goals of section 3553(a).
But we review only a defendant’s final sentence, and not the guidelines
themselves, for reasonableness. United States v. Dorman, 488 F.3d 936, 938 (11th
Cir. 2007) (explaining that the reasonableness standard applies to the final
sentence, not to each decision made during the sentencing process). And the
Sentencing Commission intended prior felony convictions to count under both
section 2L1.2(b)(1)(A) and the criminal history category. See U.S.S.G. § 2L1.2,
comment. (n.6); United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992)
(explaining that the criminal history category serves “to punish likely recidivists
more severely” while enhancements under section 2L1.2(b)(1)(A) serve “to deter
aliens who have been convicted of a felony from re-entering the United States”).
Thus, the use of Cedano’s prior drug trafficking convictions in both his criminal
history category and adjusted offense level did not render his sentence
unreasonable.3
Cedano received a 16-level enhancement because he had earlier been deported after a2
conviction for possession of cocaine with intent to distribute. See U.S.S.G. § 2L1.2(b)(1)(A)(i).
In addition, the district court considered that Cedano, a lawful permanent resident, had3
twice been convicted of drug crimes under two different aliases. He was deported after both
convictions and later re-entered the United States using his real name. Cedano admitted that he
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Cedano also argues that the disparity between his sentence and the
sentences received by defendants in “fast-track” districts rendered his sentence
unreasonable. At sentencing, Cedano acknowledged that his argument was
foreclosed by our circuit precedent in United States v. Castro, 455 F.3d 1249 (11th
Cir. 2006). In Castro, we explained that no unwarranted disparity existed when
one district participated in the fast-track program and another district court did not
participate in the program. Id. at 1252-53; see also United States v. Arevalo-
Juarez, 464 F.3d 1246, 1247, 1251 (11th Cir. 2006) (disparities associated with
early disposition programs are not unwarranted sentencing disparities for purposes
of section 3553(a)(6)). So, we are barred from reviewing his present claim under
the doctrine of invited error. See United States v. Brannan, 562 F.3d 1300, 1306
(11th Cir. 2009) (explaining that we are precluded from reviewing an issue on
appeal if defendant has induced or invited the district court into making the
alleged error, including where defendant waives a procedural right or agrees to the
admissibility of certain evidence).
In sum, Cedano’s appellate arguments do not persuade us that the district
used the aliases so that he could re-enter the United States. We cannot say that the district
court’s reasons for imposing a guidelines sentence -- including Cedano’s history and
characteristics and his “complete lack of respect for the laws of this country” -- is unsupported by
the record.
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court’s guidelines sentence “lies outside the range of reasonable sentences dictated
by the facts of the case.” See United States v. Pugh, 515 F.3d 1179, 1191 (11th
Cir. 2008); see also Talley, 431 F.3d at 788 (noting that “ordinarily we would
expect a sentence within the Guidelines range to be reasonable”). Cedano has not
met his burden of demonstrating that his sentence is unreasonable.
AFFIRMED.
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