USA v. Luis Ernesto Hernandez-Arellano

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13314
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-00170-WKW-TFM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ERNESTO HERNANDEZ-ARELLANO,
a.k.a. Carlos Cortez,
a.k.a. Cesar Garza,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(May 9, 2013)
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Before: DUBINA, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Luis Hernandez-Arellano, a Mexican citizen, appeals the district
court’s imposition of a 120-month sentence for his conviction for one count of
reentering the country as a deported alien, in violation of 8 U.S.C. § 1326(a),
(b)(2), and a second, consecutive 24-month revocation sentence for violating the
terms of his supervised release in a prior federal case (“Hernandez-Arellano I”).
In 2006, Hernandez-Arellano pled guilty to conspiring to distribute powder
cocaine in Hernandez-Arellano I. The district court later sentenced him to 37
months’ imprisonment and three years of supervised release, subject to certain
conditions directing him, in part, not to return illegally to the United States.
Records show that he was released from custody on January 13, 2009, and
deported from the United States several days later.
In October 2009, federal authorities charged Hernandez-Arellano in the
present case, and he later pled guilty. In 2011, the probation office moved to
revoke Hernandez-Arellano’s supervised release, which was part of his sentence in
Hernandez-Arellano I, noting, among other things, that by reentering the country
illegally in the present case, he violated the conditions of his earlier supervised
release. Hernandez-Arellano pled guilty to the violations, and following a
consolidated hearing, the district court sentenced him to 120 months’
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imprisonment in the present case, plus 24 months’ imprisonment in the revocation
proceeding.
On appeal, Hernandez-Arellano essentially argues that the district court
abused its discretion in imposing a 120-month sentence in the present case because
it was greater than necessary under 18 U.S.C. § 3553(a). Specifically, the court
applied an upward variance based solely on his criminal history, which was already
factored into the guideline calculations. Hernandez-Arellano also argues that his
24-month revocation sentence, particularly in conjunction with his 120-month
sentence, was substantively unreasonable. Thus, he claims that a 144-month total
sentence, imposed at 1.5 times the high end of the guideline range, created an
impact that went beyond the necessity of imposing a sentence under 18 U.S.C. §
3553(a).1
We review “all sentences—whether inside, just outside, or significantly
outside the Guidelines range—under a deferential abuse-of-discretion standard.”
United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (internal quotation
marks omitted). A substantive reasonableness review requires us to “evaluate
1 Although Hernandez-Arellano’s notice of appeal only expressly designated the present case,
and did not mention Hernandez-Arellano I, we will nevertheless construe his appeal as jointly
challenging the substantive reasonableness of both sentences given his overriding intent, as
evidenced by the arguments in his brief, to appeal his total 144-month sentence. See Kicklighter
v. Nails by Jannee, Inc., 616 F.2d 734, 738 n.1 (5th Cir. 1980); Smith v. Atlas Off-Shore Boat
Serv., Inc., 653 F.2d 1057, 1059 n.1 (5th Cir. Unit A Aug. 1981). We have adopted as binding all
Fifth Circuit precedent decided before October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981).
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whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). The party challenging the sentence “bears the burden of
establishing that the sentence is unreasonable in light of both [the] record and the
factors in section 3553(a).” Id. We will remand for resentencing only if “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. Pugh, 515 F.3d 1179, 1191 (11th Cir.
2008) (internal quotation marks omitted).
Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary,” to comply with the purposes of
sentencing. 18 U.S.C. § 3553(a). Namely, the purposes of sentencing include the
need for the sentence to reflect the seriousness of the offense, promote respect for
the law, provide just punishment for the offense, deter criminal conduct, and
protect the public from future crimes of the defendant. Id. § 3553(a)(2). The
sentencing court must also consider the following factors in determining a
particular sentence: the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
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restitution to victims. Id. § 3553(a)(1), (3)-(7). However, the weight accorded to
each of the § 3553(a) factors is within the district court’s sound discretion. See
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
Furthermore, we have recognized that “there is a range of reasonable
sentences from which the district court may choose.” Talley, 431 F.3d at 788. A
sentence imposed well below the statutory maximum penalty is one indicator of a
reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008). Necessarily, there are also “sentences outside the range of reasonableness
that do not achieve the purposes of sentencing stated in § 3553(a) and that thus the
district court may not impose.” United States v. Martin, 455 F.3d 1227, 1237
(11th Cir. 2006). For example, a sentence may be substantively unreasonable if a
district court unjustifiably relied on any one § 3553(a) factor, failed to consider
pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence
on impermissible factors. Pugh, 515 F.3d at 1191-92. Finally, while we may take
the degree of variance into account and consider the extent of a deviation from the
guidelines, we reject “an appellate rule that requires ‘extraordinary’ circumstances
to justify a sentence outside the Guidelines range.” Gall v. United States, 552 U.S.
38, 47 128 S. Ct. 586, 595 (2007).
After considering the § 3553(a) factors noted above, a district court may
revoke a term of supervised release and impose a term of imprisonment if it
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determines by a preponderance of the evidence that a violation has occurred. 18
U.S.C. § 3583(e)(3). Section 3553(a)(4)(B) requires a sentencing court to consider
the policy statements of the Sentencing Commission with regard to a violation of
supervised release, although it is recognized that those policies are not binding. See
United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006). The introduction to
Chapter Seven of the Sentencing Guidelines, which sets forth the policy statements
for violations of supervised release, provides that “at revocation the court should
sanction primarily the defendant’s breach of trust . . . . [and] the sanction for the
violation of trust should be in addition, or consecutive, to any sentence imposed for
the new conduct.” U.S.S.G., ch. 7, pt. A, comment 3(b). More specifically, “the
Sentencing Commission's policy regarding sentences for supervised release
violations is plainly set forth at U.S.S.G. § 7B1.3(f).” United States v. Flowers, 13
F.3d 395, 397 (11th Cir. 1994). This policy states that:
Any term of imprisonment imposed upon the revocation of probation
or supervised release shall be ordered to be served consecutively to
any sentence of imprisonment that the defendant is serving, whether
or not the sentence of imprisonment being served resulted from the
conduct that is the basis of the revocation of probation or supervised
release.
U.S.S.G. § 7B1.3(f).
Hernandez-Arellano fails to demonstrate that his 120-month sentence was
substantively unreasonable in light of the record and the § 3553(a) factors. While
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the sentence was outside of the guidelines range, it was still well below the 20-year
statutory maximum penalty. See Gonzalez, 550 F.3d at 1324. Moreover, the
sentence met the goals encompassed within 18 U.S.C. § 3553(a). Considering
Hernandez-Arellano’s criminal history, including his six illegal reentries, and his
propensity for violating the terms of his supervised release, a variance upward
from the guideline range was necessary to promote respect for the law, provide just
punishment, and deter him from future criminal activity. See 18 U.S.C.
§ 3553(a)(2). Additionally, contrary to Hernandez-Arellano’s assertions, the
district court’s emphasis on his criminal history did not render his sentence
unreasonable, as the weight given to any particular factor is left to the sound
discretion of the court absent a clear error in judgment. Clay, 483 F.3d at 743.
Finally, we conclude that the 24-month revocation sentence was
substantively reasonable, on its own, because it met the statutory sentencing goals
under 18 U.S.C. § 3553(a), and was imposed at the bottom of the guideline range.
Even when combined with the 120-month sentence, Hernandez-Arellano’s
resulting total 144-month sentence was not substantively unreasonable for the
same reasons noted above. Given the Sentencing Commission’s policy and our
binding precedent, we conclude that the district court’s decision to order that the
24-month revocation sentence run consecutive to Hernandez-Arellano’s 120-month
sentence did not render his total sentence unreasonable or greater than necessary to
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comply with the purposes of sentencing. U.S.S.G. § 7B1.3(f); see Flowers, 13 F.
3d at 397.
Because the district court did not abuse its discretion in imposing the total
144-month sentence, we affirm Hernandez-Arellano’s sentences.
AFFIRMED.
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