USA v. Francisco Elorza-Obregon

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 27, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15522
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-00221-TWT-LTW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
FRANCISCO ELORZA-OBREGON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 27, 2011)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.
PER CURIAM:

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Francisco Elorza-Obregon appeals his 57-month sentence, imposed after he
pleaded guilty to illegally re-entering the United States after conviction of an
aggravated felony and deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). On
appeal, Elorza-Obregon argues that the district court abused its discretion by applying
a full 16-level enhancement for illegal re-entry after conviction of an aggravated
felony. He argues that: (1) the district court abused its discretion in failing to
consider the history of the development of the illegal entry sentencing guideline; (2)
because the guideline was not developed through an empirical approach and was
therefore arbitrarily arrived at by the Sentencing Commission, it is entitled to less
deference; and (3) both the facts underlying the previous conviction upon which the
enhancement was based and the remoteness of the conviction warrant consideration
for a shorter sentence. After thorough review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)).
In reviewing sentences for reasonableness, we typically perform two steps. Id.
at 1190. First, we “‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
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treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1
If we conclude that the district court did not procedurally err, we must consider
the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Id.
(quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to determine
“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 weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court, and we will not substitute our
judgment in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823,
832 (11th Cir. 2007) (quotation and brackets omitted). We will “vacate the sentence
if, but only if, we are left with the definite and firm conviction that the district court
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the1
history and characteristics of the defendant; (2) the need for the sentence imposed 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 the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
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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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.” See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotation omitted), cert. denied, 131 S. Ct. 1813 (2011). “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. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert.
denied, 131 S.Ct. 674 (2010).
Although we do not automatically presume a sentence within the guideline
range is reasonable, we ordinarily expect such a sentence to be reasonable. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed well below
the statutory maximum is another indicator of a reasonable sentence. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
In this case, Elorza-Obregon has not demonstrated that his sentence was
substantively unreasonable in light of the record and the § 3553(a) factors. The2
district court’s sentence of 57 months represented the lowest end of the applicable
guideline range of 57-71 months, and we would ordinarily expect such a sentence to
be reasonable. See Hunt, 526 F.3d at 746. This sentence was also well below the
20-year statutory maximum. See Gonzalez, 550 F.3d at 1324; 8 U.S.C. § 1326(b)(2).
Elorza-Obregon has not argued that his sentence was procedurally unreasonable.2
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The sentence, moreover, met the goals encompassed within 18 U.S.C. §
3553(a). Elorza-Obregon had a number of prior convictions which ultimately
resulted in his deportation. He has repeatedly provided aliases to law enforcement
officers and failed to appear in court. Considering Elorza-Obregon’s criminal history,
a custodial sentence within the guideline range was needed to promote respect for the
law, provide just punishment, and deter him from further criminal activity. See 18
U.S.C. § 3553(a)(2).
Further, Elorza-Obregon’s reliance on Kimbrough v. United States, 552 U.S.
85 (2007), does not support his contention that the district court erred by declining
to afford less deference to an enhancement guideline on the ground that the guideline
was not developed based on empirical data. In Kimbrough, the Supreme Court held
that a sentence outside of the guidelines is not per se unreasonable when based on the
sentencing court’s disagreement with a sentencing disparity produced by the
guidelines. 552 U.S. at 91. The Court further held that a judge is therefore permitted,
based on such disagreement, to determine that a guidelines sentence is “greater than
necessary to serve the objectives of sentencing.” Id. (quotation omitted). In support
of this conclusion, the Court cited the fact that the Sentencing Commission “did not
take account of empirical data and national experience” in formulating guidelines
ranges for crack cocaine offenses. Id. at 109 (quotation omitted). However, the
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Court did not require a sentencing judge to consider lack of empirical data as a basis
for departing from the guidelines. See generally 552 U.S. 85. We have likewise said
that under Kimbrough, a sentencing judge may consider lack of empirical evidence
as one factor in the analysis of whether to depart from the guidelines. United States
v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010). However, we have never required a
sentencing judge to consider such evidence. Cf. id. (“The lack of empirical evidence
would not require the wholesale invalidation of sentencing guidelines.”). The district
court here therefore did not abuse its discretion in failing to do so.
Elorza-Obregon’s arguments concerning the facts underlying the conviction
upon which the 16-level enhancement was based and the remoteness of the conviction
likewise fail to establish that the sentencing court abused its discretion. 8 U.S.C. §
1326 and U.S.S.G. § 2L1.2 simply require a district court, when determining whether
to impose a prior-conviction enhancement, to consider whether a prior conviction
constitutes, among other things, a “crime of violence,” but does not require it to
consider the seriousness of the facts underlying the convictions. In this regard, it
should be noted that Elorza-Obregon does not argue that his previous conviction
failed to meet the definition of “crime of violence” in § 2L1.2(b)(1)(A)(ii).
Moreover, we have held that the illegal reentry enhancement guideline does not turn
on how long ago the prior conviction occurred. See United States v.
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Camacho-Ibarquen, 410 F.3d 1307, 1310 (11th Cir. 2005). The sentencing court
therefore did not abuse its discretion when it assessed the 16-level enhancement
without considering these factors in determining the final sentence.
Because Elorza-Obregon’s sentence was supported by the § 3553(a) factors,
and the district court did not commit a clear error of judgment in weighing those
factors, there was no abuse of discretion. Accordingly, we affirm the sentence as
reasonable.
AFFIRMED.
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