USA v. Ernesto Morales Bacallao

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14128
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO MORALES BACALLAO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20074-JLK-1
____________________
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2 Opinion of the Court 21-14128
Before ROSENBAUM, BRASHER, and ANDERSON, Circuit
Judges.
PER CURIAM:
Ernesto Morales Bacallao appeals the reasonableness of his
87-month sentence for conspiracy to possess with intent to distrib-
ute more than 500 grams of methamphetamine. He argues that his
sentence was procedurally unreasonable because the district court
failed to adequately consider his arguments or explain its reasons
for rejecting them, and that his sentence was substantively unrea-
sonable,
inter alia, because it overstated his culpability as a low-
level courier. We affirm.
When reviewing a sentence for reasonableness, we consider
the totality of the circumstances under a deferential abuse-of-dis-
cretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007).
Under this standard, we first decide whether the district court com-
mitted any significant procedural error and next whether the sen-
tence was substantively reasonable.
Id. The party challenging the
sentence has the burden of showing that the sentence was proce-
durally and substantively unreasonable.
United States v. Hill,
783 F.3d 842, 844 (11th Cir. 2015). We review
de novo a claim that
the district court failed to adequately explain its chosen sentence,
regardless of whether the defendant objected on this ground at sen-
tencing.
United States v. Bonilla, 463 F.3d 1176, 1181 & n.3 (11th
Cir. 2006).
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21-14128 Opinion of the Court 3
A sentence may be procedurally unreasonable if the district
court improperly calculates the guideline range, treats the Guide-
lines as mandatory, fails to consider the § 3553(a) factors, sentences
based on clearly erroneous facts, or fails to adequately explain its
chosen sentence.
Gall, 552 U.S. at 51
. The district court’s explana-
tion of its chosen sentence must be sufficient for us to determine
that the court considered the parties’ arguments and had a rea-
soned basis for imposing the sentence.
See Rita v. United States,
551 U.S. 338, 356 (2007). But how much of an explanation this re-
quires depends on the circumstances of the particular case.
Id. at
356-57. Generally, “[a]n acknowledgment the district court has
considered the defendant’s arguments and the § 3553(a) factors will
suffice.”
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
A district court imposes a substantively unreasonable sen-
tence when it “(1) fails to afford consideration to relevant factors
that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judg-
ment in considering the proper factors.”
United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (
en banc) (quotation marks omit-
ted). We will vacate a sentence as substantively unreasonable 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 reasonable sentences dictated by the facts of the case.”
Id. at
1190 (quotation marks omitted). The § 3553(a) factors include the
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4 Opinion of the Court 21-14128
nature and circumstances of the offense and the history and char-
acteristics of the defendant. 18 U.S.C. § 3553(a)(1). Other factors
include the need for the sentence imposed to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; to afford adequate deterrence; and to
protect the public from further crimes of the defendant.
Id.
§ 3553(a)(2)(A)-(C). We ordinarily expect a sentence within the
guideline range to be reasonable.
Gonzalez, 550 F.3d at 1324.
Here, Bacallao’s 87-month sentence was procedurally and
substantively reasonable. First, the district court thoroughly ex-
plained its reasons for rejecting Bacallao’s argument as to the drug
purity issue and acknowledged that it had considered his other ar-
guments and the § 3553(a) factors. The court made clear that it
viewed the application of the purity enhancement to couriers as a
potential “problem,” but one that did not apply in this case because
Bacallao “knew he was dealing with serious distribution” and be-
cause of his previous receipt of methamphetamine. Second,
Bacallao has cited no law requiring a district court to impose a
downward variance to offset the harshness of the purity enhance-
ment when applied to a defendant who possessed the drug without
knowledge of its purity, and it was within the court’s discretion to
apply the purity enhancement as called for under the Sentencing
Guidelines. As to Bacallao’s other arguments, it was within the
court’s discretion to weigh the § 3553(a) factors to arrive at a rea-
sonable sentence as dictated by the facts of the case.
Irey, 612 F.3d
at 1190. Bacallao was found in possession of over a kilogram of
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21-14128 Opinion of the Court 5
highly pure methamphetamine. His 87-month sentence was at the
bottom of the guideline range, and this Court ordinarily expects a
guideline-range sentence to be reasonable.
See Gonzalez, 550 F.3d
at 1324. Accordingly, we affirm.
AFFIRMED.
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