USA v. Vasquez-Frometa

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 11, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13238
Non-Argument Calendar
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D.C. Docket No. 1:07-cr-20955-JEM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
LUIS VASQUEZ-FROMETA,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 11, 2011)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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Luis Vasquez-Frometa appeals his 60-month sentence for importing 100
grams or more of heroin, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2). In
November 2007, Vasquez-Frometa arrived in the United States on a flight from
the Dominican Republic and was arrested after he was found to be carrying pellets
containing heroin inside his body. He argues that his sentence is procedurally
unreasonable because the district court failed to consider the 18 U.S.C. § 3553(a)
sentencing factors and improperly considered (1) the number of heroin pellets that
he was carrying inside his body and (2) the fact that he had traveled to the United
States 18 times between 2004 and November 2007. Vasquez-Frometa also argues
that his sentence is substantively unreasonable because his brother, who was
convicted of a similar offense, was sentenced to only 30 months’ imprisonment.
We review a sentence for procedural and substantive reasonableness. Gall
v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007). If a defendant fails
to object to a sentencing error before the district court, we review for plain error.
United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009), cert. denied, 130
S.Ct. 2361 (2010). To establish plain error, a defendant must show that there was
an (1) error, (2) that is plain, and (3) that affects substantial rights. Id. We may
exercise our discretion to correct such an error if “the error seriously affects the
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fairness, integrity or public reputation of judicial proceedings.” Id. at 1239
(quotation and alteration omitted).
A sentence is procedurally unreasonable if the sentencing court fails to
consider the factors set forth in § 3553(a) or “selects a sentence based on clearly
erroneous facts.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir.
2010), cert. denied 131 S. Ct. 2166 (2011). The district court need not discuss or
explicitly state on the record each § 3553(a) factor. United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005). An acknowledgment by the district court that it
has considered the defendant’s arguments and the § 3553(a) factors will suffice.
Id. at 1329-30.
In considering the substantive reasonableness of a sentence, we consider the
totality of the circumstances and apply an abuse-of-discretion standard, under
which we reverse only if we find 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.”
United States v. Saac, 632 F.3d 1203, 1215 (11th Cir. 2011). The § 3553(a)
factors that a sentencing court must consider include “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The party
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challenging the sentence “bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in section 3553(a).”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We review Vasquez-Frometa’s procedural reasonableness arguments under
the plain-error standard because, at sentencing, Vasquez-Frometa stated that he
had no objections to the district court’s factual findings or pronouncement of
sentence. Vasquez-Frometa has failed to show that the district court plainly erred
by imposing a procedurally unreasonable sentence. The record shows that the
district court considered the § 3553(a) sentencing factors and, under 18 U.S.C.
§§ 3553(a)(1)-(2) and 3661, the court was permitted to consider the number of
pellets that were found in Vasquez-Frometa’s body, as well as Vasquez-Frometa’s
prior trips from the Dominican Republic to the United States. The district court
did not rely on clearly erroneous facts because the undisputed facts in the
presentence investigation report supported the court’s finding that
Vasquez-Frometa made 18 trips to the United States between 2004 and November
2007 despite having limited financial resources. Finally, Vasquez-Frometa has
failed to show that his sentence resulted in an unwarranted sentencing disparity
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because he has not established that he was similarly situated to his brother.
Accordingly, we affirm Vasquez-Frometa’s 60-month sentence.
AFFIRMED.1
The Government’s motion to dismiss the appeal is DENIED.1
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