USA vs Andres Carmelo Penalba-Martinez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 11, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15650
Non-Argument Calendar
________________________
D.C. Docket No. 2:09-cr-00207-MEF-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES CARMELO PENALBA-MARTINEZ,
a.k.a. Luis Fuentes,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 11, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:

-- 1 of 3 --

Andres Carmelo Penalba-Martinez appeals his sentence of 70 months of
imprisonment for bank fraud. 18 U.S.C. § 1344. Penalba argues that his sentence
is unreasonable. We affirm.
The district court did not abuse its discretion by sentencing Penalba to a
term of imprisonment 24 months above the top of the guideline range and well
below the statutory maximum term of 360 months of imprisonment. Although
Penalba was indicted for conspiring to commit bank fraud and five counts of
committing bank fraud, Penalba negotiated an arrangement to plead guilty only to
the charge of defrauding MBNA Bank by using a counterfeit credit card bearing a
valid account number to purchase more than $640 of goods. Penalba’s
presentence investigation report described a criminal history that spanned over 24
years and included 61 convictions for crimes ranging from carrying a concealed
weapon, battery of a law enforcement officer, and possession of drugs and drug
paraphernalia, to theft and forgery of a credit card, as well as arrests for 24 other
crimes and for charges that were pending in Florida and Alabama. The district
court reasonably determined that an upward variance was necessary to address
Penalba’s history and characteristics, see United States v. Williams, 526 F.3d
1312, 1324 (11th Cir. 2008), and to provide adequate punishment, promote respect
for the law, protect the public, deter future similar crimes, and provide Penalba
2

-- 2 of 3 --

with “the benefits of any vocational training or educational opportunities”
available to him in prison. See 18 U.S.C. § 3553(a)(1)–(2). Penalba’s sentence is
reasonable.
We AFFIRM Penalba’s sentence.
3

-- 3 of 3 --