USA v. Fidel Morejon Vega

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11545
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL MOREJON VEGA,
a.k.a. David Padrino,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20336-KMM-1
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2 Opinion of the Court 22-11545
____________________
Before J ORDAN, B RANCH, and B RASHER , Circuit Judges.
PER CURIAM:
Fidel Morejon Vega impersonated a federal agent and de-
frauded over a dozen immigrants out of roughly $175,000, promis-
ing to help with their United States immigration status. Vega com-
mitted this criminal scheme only three months after serving a sen-
tence for conducting a similar scheme. After Vega pleaded guilty,
the district court varied upward from the guidelines advisory
range, sentencing him to sixty months’ imprisonment. On appeal,
Vega argues that the district court, which more than tripled the up-
per bound of the guidelines advisory range, imposed a substan-
tively unreasonable sentence. We disagree and affirm.
I.
We briefly recount the relevant facts, which are largely un-
disputed. In April 2018, Vega falsely represented to M.R.V., a Costa
Rican citizen, that he was a federal immigration agent. Vega prom-
ised to expedite M.R.V.’s citizenship paperwork for $10,000.
M.R.V. paid Vega and provided him with copies of her driver’s li-
cense and work permit. She also sought Vega’s assistance for sev-
eral friends and relatives who needed immigration assistance. Be-
tween May 2018 and August 2018, Vega collected about $175,000
from M.R.V.’s referrals.
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22-11545 Opinion of the Court 3
Vega delivered I-797 immigration forms to M.R.V. and two
others, which purported to notify the three individuals that United
States Citizenship and Immigration Services had approved their ap-
plications for permanent residency. A subsequent review of those
documents by federal law enforcement agents revealed that the I-
797 forms were fraudulent, and that Vega had never worked for
the federal government in any capacity.
In 2021, a federal grand jury returned a six-count indictment.
Vega pleaded guilty to possession or use of a false immigration doc-
ument, in violation of 18 U.S.C. § 1546(a), and encouraging and in-
ducing aliens to enter and remain in the United States, in violation
of 18 U.S.C. § 1324(a)(1)(A)(iv). The government dismissed the re-
maining counts.
At Vega’s sentencing hearing, the district court adopted the
guidelines advisory range of twelve to eighteen months’ imprison-
ment. Although the government recommended a sentence at the
top of the guidelines advisory range, the district court imposed an
upward variance and sentenced Vega to sixty months’ imprison-
ment. The court found Vega’s offense “shocking” because of the
victims and the fact that his criminal conduct began less than three
months after he had served a sentence for “exactly the same thing.”
His conduct showed “absolutely no respect for the law” and estab-
lished that his previous thirty-three-month sentence had not de-
terred him. The court concluded that a within-guidelines sentence
would not correspond with the seriousness of the offense, Vega’s
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4 Opinion of the Court 22-11545
lack of respect for the law, or the Section 3553(a) factors. Vega ob-
jected and timely appealed.
II.
We review the substantive reasonableness of a sentence for
abuse of discretion, considering the totality of the circumstances.
Gall v. United States, 552 U.S. 38, 51 (2007). A district court abuses
its discretion when it (1) ignores “relevant factors that were due
significant weight,” (2) disproportionately weighs improper or ir-
relevant factors, or (3) “commits a clear error of judgment in con-
sidering the proper factors.”
United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (quoting
United States v. Campa, 459 F.3d,
1121, 1174 (11th Cir. 2006) (en banc)).
III.
Vega argues that the district court imposed a substantively
unreasonable sentence because it improperly weighed his prior
conviction and ignored certain mitigating factors. We disagree.
A sentence is substantively reasonable if, based on the total-
ity of the circumstances, it fulfills the goals of Section 3553(a).
See
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008);
see also
18 U.S.C. § 3553(a) (stating that a court must “impose a sentence
sufficient, but not greater than necessary, to comply with” the sen-
tencing objectives of Section 3553(a)(2)). In determining an appro-
priate sentence, the district court must consider: (1) the nature of
the offense and the defendant’s “history and characteristics”; (2)
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22-11545 Opinion of the Court 5
“the need for the sentence” to reflect the seriousness of the crime,
deter future criminal conduct, protect the public, and rehabilitate
the defendant; (3) the types of available sentences; (4) the guide-
lines advisory range; (5) “any pertinent policy statement” by the
Sentencing Commission; (6) “the need to avoid unwarranted sen-
tencing disparities”; and (7) the victim’s need for restitution. 18
U.S.C. § 3553(a).
The district court has discretion to weigh certain Section
3553(a) factors more than others,
see United States v. Rosales-
Bruno, 789 F.3d 1249, 1259 (11th Cir. 2015), and may impose an
upward variance when warranted,
see Gall, 552 U.S. at 49–50. An
upward variance may result from “conduct that a probation officer
already had considered in calculating the defendant’s” guidelines
advisory range.
United States v. Johnson, 803 F.3d 610, 619 (11th
Cir. 2015) (quoting
United States v. Moran, 778 F.3d 942, 983 (11th
Cir. 2015)). To vacate a sentence as substantively unreasonable, we
must firmly believe that the upward variance resulted from “a clear
error of judgment in weighing the [section] 3553(a) factors.”
United
States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018) (quoting
United States v. Cubero, 754 F.3d 888, 893 (11th Cir. 2014)) (altera-
tion in original). Thus, “it is only the rare sentence that will be sub-
stantively unreasonable.”
United States v. McQueen, 727 F.3d
1144, 1156 (11th Cir. 2013). Still, a sentence that “is grounded solely
on one factor, relies on impermissible factors, or ignores relevant
factors” may be unreasonable.
Pugh, 515 F.3d at 1194.
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6 Opinion of the Court 22-11545
Vega posits that the district court improperly weighed a sin-
gle sentencing factor—his prior conviction—and ignored the fact
that he was the sole caregiver for his disabled partner. Thus, as the
argument goes, the upward variance was substantively unreasona-
ble.
Not so. To be sure, the district court emphasized Vega’s
prior conviction for conducting a similar immigration scheme. But
the district court may give certain Section 3553(a) factors more
weight than others.
Rosales-Bruno, 789 F.3d at 1259. The district
court also cited the failure of the prior thirty-three-month sentence
for nearly identical conduct to deter this offense, the financial dev-
astation suffered by Vega’s victims, the severity of Vega’s artifice,
Vega’s lack of respect for the law, and the duration of the immigra-
tion scheme as justification for the upward variance. The upward
variance therefore arose from a confluence of several Section
3553(a) factors, including Vega’s criminal history, the need for the
sentence to reflect the offense’s severity, deterrence, protecting the
public, and rehabilitation.
See 18 U.S.C. § 3553(a).
Though Vega contends that the upward variance was sub-
stantively unreasonable because the guidelines advisory range al-
ready accounted for his prior conviction, the district court may im-
pose an upward variance based on “conduct that a probation officer
already had considered” during the guidelines advisory range cal-
culation.
Johnson, 803 F.3d at 619. And nothing in the record sug-
gests that the district court ignored mitigating factors, such as
Vega’s role as sole caregiver to his disabled partner.
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22-11545 Opinion of the Court 7
Based on the totality of the circumstances, we are not “left
with the definite and firm conviction that the district court com-
mitted a clear error of judgment in” varying upward from the
guidelines advisory range.
See Shabazz, 887 F.3d at 1224 (quoting
Cubero, 754 F.3d at 893). The district court properly considered the
Section 3553(a) factors and did not “give[] significant weight to an
improper or irrelevant factor.”
See Irey, 612 F.3d at 1189. Accord-
ingly, Vega’s sentence was substantively reasonable, and we detect
no abuse of discretion.
IV.
The district court is AFFIRMED.
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