USA v. Ferman Duarte-Herrera

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 24, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11952
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cr-00042-WCO-SSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERMAN DUARTE-HERRERA
Defendant-Appellant.
________________________
No. 11-12090
Non-argument Calendar
_________________________
D.C. Docket No. 2:11-cr-00005-WCO-1

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERMAN DUARTE-HERRERA
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(February 24, 2012)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIUM:
Ferman Duarte-Herrera appeals his 42-month sentence imposed following
his conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a), and the
revocation of his supervised release under 18 U.S.C. § 3583(e)(3). He argues that
his total sentence is substantively unreasonable, in part, because it does not
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account for his difficult childhood and motives for reentering this country. We
affirm.
In 2008, Duarte-Herrera was convicted in Texas for illegally reentering the
United States following a felony conviction, in violation of 8 U.S.C. § 1326(a),
and sentenced to 24 months’ imprisonment, followed by 3 years’ supervised
release, and deportation. Conditions of supervised release prohibited him from
(i) committing another federal, state, or local crime; and (ii) reentering the country
illegally following deportation.
In August 2010, Georgia law enforcement officials arrested Duarte-Herrera
for several state offenses. He was ultimately convicted and sentenced on these
charges, after which he was indicted in the Northern District of Georgia for
illegally reentering the country. In the meantime, probation officials in Texas
sought to revoke Duarte-Herrera’s supervised release based on the new state and
federal law violations. Because he was detained in Georgia, the Texas district
court transferred jurisdiction over the revocation case to the Northern District of
Georgia, which consolidated the two cases for sentencing.
At sentencing, after listening to the parties’ arguments, the district court
sentenced Duarte-Herrera to 5 months’ imprisonment for the revocation and 37
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months’ imprisonment for the illegal reentry, with the sentences to run
consecutively. The court stated that it was trying to relate to the severity of the
crimes and that the two sentences were in the proper range. The court further
stated that it had “cut way back on what normally would be the revocation
sentence” and run the sentences consecutively to “serve[s] in the totality” and fit
within the range. Duarte-Herrera now appeals both sentences, which we have
since consolidated.
We review an initial sentence imposed by the district court for
reasonableness, and evaluate the substantive reasonableness of a sentence under
the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38,
46 (2007); United States v. Talley, 431 F.3d 784, 785 (11th Cir. 2005); United
States v. Sweeting, 437 F.3d 1105, 1106 (11th Cir. 2006) (reviewing sentence
imposed upon revocation of supervised release for reasonableness).
When reviewing an initial sentence, we must first determine that the
“district court committed no significant procedural error.” Gall, 552 U.S. at 51.1
If the district court’s decision is procedurally reasonable, our analysis then turns to
To the extent that Duarte-Herrera argues that the district court erred in calculating his1
guideline range because his 15-year-old drug conviction should not have received a 12-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(B), this argument is without merit. United States v.
Adeleke, 968 F.2d 1159, 1160 (11th Cir. 1992).
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the substantive reasonableness of the sentence. Id. We review the totality of the
facts and circumstances to gauge for substantive error. United States v. Irey, 612
F.3d 1160, 1189–90 (11th Cir. 2010) (en banc). “[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both [the] record and the factors in section 3553(a).” Talley, 431 F.3d at2
788. The relevant inquiry is “whether the sentence imposed by the district court
fails to achieve the purposes of sentencing as stated in section 3553(a).” Id. The
district court is not required to “state on the record that it has explicitly considered
each of the § 3553(a) factors or discuss each of the § 3553(a) factors.” United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). An acknowledgment that
the court considered the defendant’s arguments and the § 3553 factors is adequate.
Talley, 431 F.3d at 786.
We may vacate a sentence only “if we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the2
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. Talley,431 F.3d at 786 (summarizing 18 U.S.C. § 3553(a)).
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reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008). “A district court abuses its discretion
when it . . . gives significant weight to an improper or inappropriate factor . . ..”
Irey, 612 F.3d at 1189. Although we do not automatically presume a sentence
within the guideline range to be reasonable, we ordinarily expect such a sentence
to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Moreover, a sentence imposed well below the statutory maximum is an indicator
of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008).
Section 1326 in Title 8 of the U.S. Code applies to aliens who were
excluded, removed, or deported, and then reentered the United States without first
obtaining permission from the Attorney General. 8 U.S.C. § 1326(a). The
statutory maximum punishment for a § 1326 offense is 20 years’ imprisonment if
the deportation was subsequent to a conviction for an “aggravated felony.” 8
U.S.C. § 1326(b)(2). We have considered a felony conviction for possession of
drugs with the intent to distribute to be an aggravated felony under this section.
United States v. Madera-Madera, 333 F.3d 1228, 1229-30 (11th Cir. 2003).
Duarte-Herrera’s revocation is governed by 18 U.S.C. § 3583, which
provides that a district court may impose a term of supervised release in addition
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to a term of imprisonment. This section also provides that, upon revocation of
supervised release due to a violation of the release terms, the court can require the
defendant to serve all or part of the remaining term in prison, without credit for
time already served on release. 18 U.S.C. § 3583(e)(3). The length of the term of
imprisonment and the maximum period that a defendant can be required to serve
depends on the classification of the underlying felony conviction according to the
statutory maximum sentence. Id. Because the maximum sentence under § 1326(b)
is 20 years’ imprisonment, illegal reentry after deportation following a felony
conviction is considered a Class C felony under 18 U.S.C. § 3559(a)(3).
Therefore, Duarte-Herrera faced a maximum of two years for the revocation of his
supervised release. 18 U.S.C. § 3583(e)(3).
Here, we conclude that both of Duarte-Herrera’s sentences, and the total 42-
month sentence, are substantively reasonable. Regarding the five-month sentence
imposed for the revocation, the sentence was at the low end of the guideline range
and well below the two-year statutory maximum, both of which support a finding
of reasonableness. Although the court did not explicitly state that it considered the
§ 3553(a) factors, it noted that the sentence “fit within the range” and “serve[d] in
the totality.”
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Regarding the 37-month sentence imposed in the illegal reentry case, the
district court explicitly stated that it had considered the § 3553(a) sentencing
factors, and it reaffirmed that statement in the judgment. The court was not
required to separately address each § 3553(a) factor, and in its comments during
the sentencing hearing, the court appeared to account for the seriousness of the
offense, Duarte-Herrera’s history of illegally entering this country, deterrence, and
the need to maintain some parity with the 2008 sentence for the same offense. The
37-month sentence imposed was also at the lowest end of the guideline range, and
far below the 20-year statutory maximum.
Furthermore, when questioned by the government, the court confirmed that
it had considered the parties’ arguments and the § 3553(a) factors in fashioning the
sentence. These statements are sufficient to show that the court considered the
§ 3553(a) factors, which would have included consideration of Duarte-Herrera’s
arguments regarding his motive for reentering the country, background, family
situation, and home-country conditions. Because Duarte-Herrera has not shown
that his sentences are unreasonable, we affirm.
AFFIRMED.
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