USA v. Rafael Aleman-Rivera

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10347
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL ALEMAN-RIVERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cr-00596-VMC-CPT-8
____________________
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2 Opinion of the Court 22-10347
Before N EWSOM , G RANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Rafael Aleman-Rivera appeals his sentence of 180 months’
imprisonment for conspiracy to possess with intent to distribute 5
kilograms or more of cocaine, which was a downward variance
from the advisory guideline range of 210 to 262 months. On ap-
peal, Aleman-Rivera argues that his sentence was procedurally un-
reasonable because the District Court failed to consider each of the
18 U.S.C. § 3553(a) factors, including the need to protect the public
from the defendant’s future crimes.
I.
Aleman-Rivera entered a plea of guilty, which was accepted
by the United States District Court for the Middle District of Flor-
ida. At the end of Aleman-Rivera’s sentencing hearing, the District
Court said,
Let me first acknowledge the factors to consider in
imposing sentence as set forth in Section 3553(a) of
Title 18. The sentence should reflect the seriousness
of the offense, promote respect for the law, act as a
deterrent, and should be sufficient but not greater
than necessary to achieve those purposes.
I don’t think danger to the community is a considera-
tion as we sit here today, but I do echo a comment
[the government] made, that the impact of cocaine on
our communities is well known and well
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22-10347 Opinion of the Court 3
documented. Whether it contributes to drug addic-
tion or worse, the collateral crimes, it is a danger and
has been a danger to our community.
Tr. of Sentencing 92. Aleman-Rivera did not object to the
final sentence afterwards.
II.
We generally review the procedural reasonableness of a sen-
tence for an abuse of discretion.
Gall v. United States, 552 U.S. 38,
51, 128 S. Ct. 586, 597 (2007). When a defendant does not raise a
relevant objection at the time of sentencing, however, we review
for plain error.
United States v. Vandergrift, 754 F.3d 1303, 1307
(11th Cir. 2014). Plain error is error that is plain, that affects a de-
fendant’s substantial rights and seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings.
United States v.
Clark, 274 F.3d 1325, 1326 (11th Cir. 2001).
The district court must impose a sentence sufficient, but not
greater than necessary, to comply with the purposes listed in
§ 3553(a)(2), including the need to reflect the seriousness of the of-
fense, promote respect for the law, provide just punishment for the
offense, deter criminal conduct, and protect the public from the de-
fendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2)(A)–(C).
In imposing a particular sentence, the court must also consider the
nature and circumstances of the offense, the history and character-
istics of the defendant, the kinds of sentences available, the applica-
ble guideline range, the pertinent policy statements of the Sentenc-
ing Commission, the need to avoid unwarranted sentencing
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4 Opinion of the Court 22-10347
disparities, and the need to provide restitution to victims.
Id.
§ 3553(a)(1), (3)–(7).
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, 128 S. Ct. at 597. The district
court is not required to state on the record that it has explicitly con-
sidered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors.
United States v. Kuhlman, 711 F.3d 1321, 1326
(11th Cir. 2013). 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).
Here, the District Court’s sentence was procedurally reason-
able because it adequately considered the § 3553(a) factors, includ-
ing the need to protect the public from Aleman-Rivera’s future
criminal conduct. Though the appellant’s brief quotes part of the
District Court’s words, it quotes them selectively. Appellant’s Br.
at 13. While the District Court may not have identified the need
to protect the public from future crimes by the defendant in the
quoted portion, 18 U.S.C. § 3553(a)(2)(C), the Court clearly ad-
dressed this factor in the very next sentence. Accordingly, we af-
firm.
AFFIRMED.
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