USA v. Victor Manuel Hernandez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10845
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL HERNANDEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00058-KKM-TGW-1
____________________
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2 Opinion of the Court 22-10845
Before LAGOA , BRASHER , and ANDERSON, Circuit Judges.
PER CURIAM:
Victor Hernandez appeals his total sentence of 324 months’
imprisonment for 5 counts related to possession with intent to dis-
tribute heroin and mixtures containing methamphetamine and co-
caine, as well as possession of firearms and ammunition by a felon.
Hernandez argues that his sentence was substantively unreasona-
ble because he was young at the time of the offense and the rele-
vant methamphetamine Guidelines are excessively punitive and
not based on empirical data.
When reviewing a sentence for substantive reasonableness,
we assess the totality of the circumstances under a deferential
abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51
(2007). The district court abuses its discretion when it “(1) fails to
afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.”
United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (quotation marks omitted).
The party challenging the sentence bears the burden of
showing the sentence is unreasonable based on the record and the
statutory factors specified in § 3553(a).
United States v. Tome, 611
F.3d 1371, 1378 (11th Cir. 2010). The factors due consideration un-
der statute include the nature and circumstances of the offense, the
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22-10845 Opinion of the Court 3
history and characteristics of the defendant, the offense’s serious-
ness, adequate deterrence, and protecting the public, the guideline
range, among others. 18 U.S.C. § 3553(a). The district court does
not need to give all the factors equal weight and is given discretion
to attach great weight to one factor over another.
United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). Although we
do not apply a presumption of reasonableness to a sentence within
the guideline range, we ordinarily expect such a sentence to be rea-
sonable.
United States v. Coglianese, 34 F.4th 1002, 1009 (11th Cir.
2022).
In
Kimbrough v. United States, the Supreme Court
acknowledged that sentencing courts may vary from the guideline
range based on policy considerations, including disagreement with
portions of the drug-sentencing Guidelines that appear to lack em-
pirical foundation and produce excessive sentences. 552 U.S. 85,
101–02 (2007). Although
Kimbrough empowered courts with dis-
cretion to vary from the guidelines range on policy grounds, “it did
not command them to exercise it.”
Dell v. United States, 710 F.3d
1267, 1279 (11th Cir. 2013).
Here, Hernandez’s sentence is not substantively unreasona-
ble. The court did not abuse its discretion in weighing the serious-
ness of the offenses, the need to protect the public, Hernandez’s
criminal history and characteristics, and the need for additional de-
terrence more heavily than issues with the methamphetamine sen-
tencing guidelines and Hernandez’s young age. Thus, the court’s
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4 Opinion of the Court 22-10845
decision to impose a sentence within the guideline range rather
than granting a downward variance was not unreasonable.
Contrary to Hernandez’s argument on appeal, the district
court did not fail to afford consideration to relevant factors that
were due significant weight.
Irey, 612 F.3d at 1189. Rather, the
court recognized the arguments raised by Hernandez on appeal in
the initial sentencing hearing, acknowledging the sentencing dis-
parities created by the methamphetamine guidelines and the role
of youth in precipitating criminal conduct. The court discussed
Hernandez’s age as a relevant characteristic for the purposes of sen-
tencing but stated that the lengthy imprisonment sentence was
warranted by Hernandez’s actions even though the sentence
would cost him freedom and opportunity for the middle part of his
life. Furthermore, the court stated that it understood the policy
disagreements about how the Guidelines have weighted metham-
phetamine improperly without empirical basis and was aware of its
power under
Kimbrough to vary from the guideline range. The
court properly recognized that while it had the discretion to vary
downward based on policy disagreements with the Guidelines, it
was not required to do so.
Dell, 710 F.3d at 1279.
And the district court explained at length why a downward
variance was not warranted under the circumstances here. The
court noted that this was an extremely serious offense that in-
volved an “enormous amount of drugs” and “an enormous
amount of firearms.” The court further noted that the conse-
quences of drug addiction for society, individuals, and families
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22-10845 Opinion of the Court 5
discouraged a downward variance out of concern for public safety.
Hernandez’s repeated criminal conduct while on bond after his first
arrest was an “extraordinarily aggravating” factor in the court’s as-
sessment of his criminal history and personal characteristics and
suggested a significant sentence was necessary to deter future mis-
conduct. The court assessed the totality of the circumstances, giv-
ing some weight to Hernandez’s arguments but determining that
other proper considerations weighed against a downward variance.
See, e.g., Rosales Bruno, 789 F.3d at 1254 (noting that the decision
of how much weight to assign a sentencing factor falls within the
court’s discretion). This Court ordinarily expects a sentence within
the guideline range to be reasonable,
Coglianese, 34 F.4th at 1009,
and the district court did not abuse its discretion here by determin-
ing that the totality of the factors that it considered warranted a
sentence of 324 months, the low end of the guideline range. Thus,
the sentence is substantively reasonable.
AFFIRMED.
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