USA v. Justiniano Calles-Gomez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 25, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14553
Non-Argument Calendar
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D. C. Docket No. 09-00174-CR-T-26-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTINIANO CALLES-GOMEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 25, 2010)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Justiniano Calles-Gomez appeals his sentence of 60 months’ imprisonment,

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imposed after he pled guilty to reentry of a deported alien, in violation of 8 U.S.C.
§§ 1326(a) and (b)(1) (Count One), and unlawful entry by an alien, in violation of
8 U.S.C. §§ 1325(a)(1) and 1329 (Count Two). After review, we affirm.
I. BACKGROUND FACTS
A. Offense Conduct
Calles-Gomez is a Mexican citizen who works on shrimp vessels. Although
Calles-Gomez has never lawfully been admitted to the United States, he repeatedly
has been found either inside this country or attempting to enter.
In 1992, Calles-Gomez was arrested in Brownsville, Texas and convicted in
state court of driving while intoxicated. Although it does not appear Calles-Gomez
was deported after this conviction, at some point Calles-Gomez returned to Mexico
because, between October 1997 and February 1999, Calles-Gomez was
apprehended at the U.S. border four times and returned to Mexico.
In August 2002, the U.S. Coast Guard discovered Calles-Gomez on a shrimp
boat in the Brownsville area and turned him over to Border Patrol agents. This
time, Calles-Gomez was convicted in federal court of illegally entering the United
States, sentenced to time-served and deported to Mexico on September 23, 2002.
Calles-Gomez again illegally re-entered the United States. In April 2005,
Calles-Gomez came to the attention of authorities when he assaulted his wife, who
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lives in Brownsville with their five children. In Texas state court Calles-Gomez
was convicted of misdemeanor assault and sentenced to a six-month jail term.
When his state jail term ended, Calles Gomez was turned over to federal
immigration authorities. On October 11, 2005, Calles-Gomez was convicted in
federal court of being an alien unlawfully found in the United States after
deportation. Calles-Gomez was given a 118-day sentence, after which he was
again deported to Mexico.
On March 13, 2009, an enforcement officer with the U.S. Customs and
Border Protection Office encountered Calles-Gomez at the Port of Tampa, Florida.
The officer determined that Calles-Gomez was a prior deported alien who had
previously been convicted of a felony and detained him. This last entry into the
United States is the basis for the instant offenses.
B. Sentencing
Calles-Gomez pled guilty to both counts in the indictment. The presentence
investigation report (“PSI”): (1) assigned Calles-Gomez a base offense level of
eight, pursuant to U.S.S.G. § 2L1.2(a); (2) added four levels because he previously
was deported after his 2005 felony conviction for being an alien unlawfully found
in the United States after deportation, pursuant to U.S.S.G. § 2L1.2(b)(1)(D); and
(3) subtracted two levels for his acceptance of responsibility, pursuant to U.S.S.G.
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§ 3E1.1(a). A total offense level of 10 and a criminal history category of III
yielded an advisory guidelines range of 10 to 16 months’ imprisonment. The
statutory maximum term was ten years for Count One and two years for Count
Two. Calles-Gomez did not object to the PSI’s facts or guidelines calculations.
At sentencing, the district court adopted the PSI and found that Calles-
Gomez’s advisory guidelines range was 10 to 16 months. Calles-Gomez asked for
a sentence within the advisory range. Calles-Gomez stressed that his two previous
sentences for his federal immigration offenses were short (time-served in 2002 and
four months in 2005) and that a guidelines sentence would be considerably more
time than he had ever served before. He also argued that he re-entered the United
States for work purposes and for better opportunities. Calles-Gomez personally
apologized for his crimes and stated that he was not aware that he would face such
a long prison sentence or he would not have returned to the United States.
The district court reviewed Calles-Gomez’s criminal history. The district
court opined that sending Calles-Gomez back to Mexico and giving him short
sentences did not deter him given that he continued to come back to the United
States. The district court also noted that it had just sentenced another, very similar
defendant for immigration offenses. The district court stated that it had heard the
parties’ arguments and considered the § 3553(a) factors. The court explicitly
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noted: (1) the nature and circumstances of the immigration offenses, which it
described as serious, and that a serious illegal immigration problem exists in the
United States; (2) Calles-Gomez’s history and characteristics, which indicated that
“[h]e just will not be deterred from coming into this country illegally”; (3) the need
for the sentence imposed “to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the offense, to afford adequate
deterrence for criminal conduct and protect the public from further crimes of the
Defendant”; and (4) the sentences the court had imposed in other illegal
immigration cases, including the case it had heard immediately before Calles-
Gomez’s, and the need to avoid unwarranted sentencing disparities among similar
defendants.
The district court stressed that Calles-Gomez had been ordered to leave the
United States on seven occasions and told not to return. The court stated that it
considered the other § 3553(a) factors, but that, “in [the court’s] mind, the
emphasis should be on the factors [the court] just identified in fashioning a
reasonable sentence in this case.” The court imposed a 60-month sentence for
Count One and a concurrent 24-month sentence for Count Two. The total 60-
month sentence was 44 months above the high end of the advisory guidelines range
of 10 to 16 months. The court found that the sentence was “fair and reasonable,
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and is sufficient but not greater than necessary to comply with the statutory
purposes of sentencing.” Calles-Gomez objected to the court’s upward variance.
This appeal followed.
II. DISCUSSION
On appeal, Calles-Gomez argues that his 60-month sentence is unreasonable.
We review the reasonableness of a sentence for abuse of discretion using a two-
step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We
look first at whether the district court committed any significant procedural error
and then at whether the sentence is substantively reasonable under the totality of
the circumstances. Id. The party challenging the sentence bears the burden to
show it is unreasonable in light of the record and the § 3553(a) factors. United
States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).1
“If, after correctly calculating the guidelines range, a district court decides
that a sentence outside that range is appropriate, it must ‘consider the extent of the
deviation and ensure that the justification is sufficiently compelling to support the
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the1
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the
need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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degree of the variance.’” United States v. Williams, 526 F.3d 1312, 1322 (11th
Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597
(2007)). Likewise, although “[s]entences outside the guidelines are not presumed
to be unreasonable, . . . we may take the extent of any variance into our calculus.”
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.
2847 (2009). However, we “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Here, Calles-Gomez has not met his burden to show his 60-month sentence
was procedurally or substantively unreasonable. Procedurally, there is no dispute
the district court correctly calculated the advisory guidelines range. The record
belies Calles-Gomez’s claims that the court failed to consider the § 3553(a) factors
or Calles-Gomez’s mitigation arguments and failed to explain its decision to
impose an upward variance. To the contrary, the district court explicitly
considered the § 3553(a) factors and the parties’ arguments, explained that the
majority of the factors outweighed Calles-Gomez’s arguments in mitigation and
provided a thorough rationale for its choice of sentence. Although Calles-Gomez
is correct that the district court did not explicitly discuss the need for him to
receive education or vocational training, the sentencing court is not required to
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discuss each factor; rather an acknowledgment that it has considered all the factors
is sufficient. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Finally, the fact that the district court took into account Calles-Gomez’s
prior illegal re-entries in calculating the advisory guidelines range and in deciding
to impose an upward variance does not make the sentence unreasonable. See
United States v. Williams, 526 F.3d 1312, 1323-24 (11th Cir. 2008) (stating that
district court may consider the defendant’s prior offenses under the § 3553(a)
factors in deciding to impose an upward variance even though they had also been
used to calculate the defendant’s criminal history score). Nothing in § 3553(a) or
our binding precedent suggests that a district court should ignore those § 3553(a)
factors that have some overlap with the Sentencing Guidelines. See United States
v. Amedeo, 487 F.3d 823, 833-34 (11th Cir. 2007) (rejecting argument that
because conduct was considered in imposing guidelines enhancement, it could not
be considered under the § 3553(a) factors in imposing an upward variance).
Calles-Gomez also has not shown that his 60-month sentence is
substantively unreasonable. Calles-Gomez repeatedly defied orders not to re-enter
the United States. The record documents at least seven entries or attempted entries.
Calles-Gomez committed the instant re-entry offenses in 2009 despite already
having been prosecuted and convicted for illegal re-entry offenses in 2002 and
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2005. Clearly, the shorter imprisonment sentences Calles-Gomez served had not
had a deterrent effect. Additionally, apart from his immigration offenses, Calles-
Gomez committed other crimes while in the United States.
Based on these facts, the district court concluded that a significant upward
variance was needed to reflect the seriousness of the offense, promote respect for
the law, protect the public and deter Calles-Gomez from again re-entering the
country and committing future crimes here. The district court’s stated concerns
over Calles-Gomez’s recidivism and criminal history in the United States were
sufficiently compelling to support the degree of the variance. See, e.g., Shaw, 560
F.3d at 1240-41 (affirming an 83-month upward variance based in large part on
district court’s concern over defendant’s long criminal history that was undeterred
by shorter sentences). Under the totality of the circumstances, we cannot say the
district court’s decision to impose a 60-month sentence was an abuse of discretion.
AFFIRMED.
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