USA v. Rory Orlando Urquia Lagos

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10839
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20509-JLK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,
versus
RONY ORLANDO URQUIA LAGOS,
llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 22, 2012)
Before BARKETT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Rony Urquia Lagos, a citizen of Honduras, pleaded guilty to one count of
illegal re-entry of a previously removed alien, in violation of 8 U.S.C. §§ 1326(a)
and (b)(1). Lagos’s Presentence Investigation Report (PSR) indicated a sentence
guideline range of 46 to 57 months, based on a criminal history category of III,
and a total offense level of 21, including a sixteen-level enhancement for having
been previously deported following a conviction for a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A). Over Lagos’s objection to the sixteen-level
enhancement, the district court sentenced him to a term of 46 months
imprisonment. This appeal followed.
On appeal, Lagos argues that his sentence must be vacated because the
district court erred by enhancing his sentencing guideline range pursuant to
U.S.S.G. § 2L1.2(b)(1)(A). Specifically, Lagos argues that the district court erred
in applying the enhancement because “his prior conviction for resisting arrest with
violence in violation of Fla. Stat. § 843.01 is not a crime of violence within the
meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii).” This Court reviews de novo whether a
defendant’s prior conviction qualifies as a “crime of violence” under the
sentencing guidelines. United States v. Romo-Villalobos, 674 F.3d 1246, 1247
(11th Cir. 2012).
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In 2003, Lagos was convicted in Florida for resisting an officer with
violence under Fla. Stat. § 843.01. In 2007, Lagos was removed from the United
States to Honduras. Thus, whether the district court properly applied the
enhancement depends on whether Florida’s resisting an officer with violence
statute is a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Lagos
concedes that we answered precisely this question in the affirmative in Romo-
Villalobos, 674 F.3d at 1251, and has pointed to no authority overruling or
undermining its holding. “[A] prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point of abrogation by
the Supreme Court or by this court sitting en banc.” United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008). Thus, Lagos cannot prevail on his argument
that his conviction under Fla. Stat. § 843.01 does not sustain an enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Lagos also argues that the district court erred by imposing a sentence that is
procedurally and substantively unreasonable. When determining whether a
sentence is reasonable, we must first “ensure that the district court committed no
significant procedural error, such as 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 facts, or failing
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to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,
51, 128 S. Ct. 586, 597 (2007). Then, assuming that the district court’s sentencing
decision is procedurally sound, we must “consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.” Id. When
conducting this review, we “take into account the totality of the circumstances.”
Id.
Lagos argues that his sentence is procedurally unreasonable because the
district court incorrectly calculated his guideline range based on his prior
conviction for resisting an officer with violence, and because the district court
failed to give adequate consideration to the § 3553(a) factors, particularly Lagos’s
character and history. For reasons already stated, the district court did not err in
its determination that Lagos’s conviction for resisting an officer with violence was
a crime of violence under the Guidelines. As to Lagos’s argument that the district
court failed to “appropriately weigh several § 3553(a) sentencing factors
[including] the circumstances of [Lagos’s] current immigration offense, his family
circumstances, [and] his community service since 2004,” it is clear from the record
that the district court did take these factors into consideration. Therefore, we
cannot say that the district court committed any “significant procedural error” in
calculating Lagos’s sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
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Neither can we say that Lagos’s 46-month sentence, which is at the low end
of his guideline range, is substantively unreasonable. Where, as here, “a sentence
is procedurally reasonable and is within the applicable Guidelines sentencing
range,” we look at the totality of the circumstances and ask whether the district
court abused its discretion. United States v. Chavez, 584 F.3d 1354, 1365 (11th
Cir. 2009). While we do not apply a presumption of reasonableness to a within-
guidelines sentence, “ordinarily we would expect a sentence within the Guidelines
range to be reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
The record clearly indicates that the court considered the § 3553(a) factors
advanced by Lagos in favor of a sentence below the guideline recommendation.
The court rejected Lagos’s argument that he deserved a sentence below the
guideline recommendation, explaining that because this will be the third time
Lagos has been removed from the United States, a sentence at the low end of the
guideline range is necessary to deter him from returning illegally. Even if we
thought, given the totality of the circumstances, that a different sentence was
warranted, “[w]e may not . . . set aside a sentence merely because we would have
decided that another one is more appropriate.” United States v. Irey, 612 F.3d
1160, 1191 (11th Cir. 2010). “We may set aside a sentence only if we determine,
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after giving a full measure of deference to the sentencing judge, that the sentence
imposed truly is unreasonable.” Id. On this record, Lagos has not demonstrated
that the district court abused its discretion by imposing a low-end guideline
sentence. We cannot say that his sentence is substantively unreasonable.
For these reasons, Lagos’s sentence is
AFFIRMED.
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