Case: 12-15463 Date Filed: 08/14/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15463
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20483-RNS-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL VALDES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 14, 2013)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-15463 Date Filed: 08/14/2013 Page: 2 of 6
On July 19, 2011, Manuel Valdes and others were indicted for conspiracy to
commit bank fraud,1 Count 1; four counts of bank fraud, 2 Counts 6-7, 10 and 13;
and five counts of wire fraud,3 Counts 29-30 and 33-35. On December 30, 2011,
Valdes, pursuant to a plea agreement, pled guilty to Count 1 of the indictment.
Valdes’s commission of the Count 1 offense violated the conditions of a
probation sentence he was serving as the result of state court convictions on four
counts of second-degree grand theft and one count of organized fraud. 4 One of the
terms of the probation sentence required Valdes to pay restitution in the sum of
$109,155. When he appeared before the District Court for sentencing on Count 1,
on October 12, 2012, he still owed restitution payments in the sum of $85,658.
At sentencing, after considering the presentence report and the Valdes’s
objections to the report, the District Court fixed Valdes’s adjusted offense level at
20 and his criminal history category at II; this yielded a Guidelines sentence range
of 37 to 46 months’ confinement. Both sides recommended the imposition of a
prison term of 37 months. The court rejected their recommendation and, varying
upward from the sentence range, sentenced Valdes to a term of 60 months. The
court concluded that an upward variance was necessary because of his prior fraud
conviction and because he had paid very little toward the restitution sum of
1
18 U.S.C. § 1349.
2
18 U.S.C. § 1344(1)-(2).
3
18 U.S.C. § 1343.
4
The criminal activity underpinning those offenses occurred over a 10-year period.
2
Case: 12-15463 Date Filed: 08/14/2013 Page: 3 of 6
$109,155 at the time he committed the Count 1 offense. Valdes now appeals his
sentence.
Valdes argues that his sentence is procedurally unreasonable because the
District Court committed a clear factual error regarding his restitution-payment
history and because it did not explain how that history affected his sentence. He
also argues that his sentence is substantively unreasonable because (1) he was
involved in the Count 1 conspiracy for a shorter period of time than his
codefendants and was involved in only a small number of the fraudulent
transactions listed in the indictment, (2) his sentence constitutes an unwarranted
disparity from those received by his codefendants, and (3) his probation status at
the time of his arrest did not justify the upward variance because the Guidelines
sentence range reflected the state court convictions.
We review the reasonableness of a sentence using the deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591, 169 L. Ed. 2d 445 (2007). We first determine whether the “district court
committed . . . significant procedural error.” Gall, 552 U.S. at 51, 128 S.Ct. at 597.
Such error may occur if the court improperly calculated the Guidelines sentence
range, failed to treat the Guidelines as advisory, failed to consider the 18 U.S.C.
§ 3553(a) sentencing factors, based the sentence on clearly erroneous facts, or
failed adequately to explain the sentence imposed. Id. We have never required a
3
Case: 12-15463 Date Filed: 08/14/2013 Page: 4 of 6
sentencing judge to “articulate his findings and reasoning with great detail or in
any detail for that matter.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir.
2010) (en banc). Nevertheless, as a general matter, he is required to explain in
greater detail his decision to grant a variance above or below the Guidelines
sentence range. United States v. Livesay, 525 F.3d 1081, 1093 (11th Cir. 2008)
(rejecting a sentence because the district court “gave no reasoning or indication of
what facts justified such a significant variance from the advisory Guidelines
range”).
A “sentencing judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 345, 356, 358, 127 S. Ct. 2456, 2462, 2468–69, 168 L. Ed. 2d 203 (2007)
(holding that the district court’s reasoning was sufficient when the court simply
stated that the guideline range was not inappropriate and that the public needed to
be protected before imposing a guideline-range sentence). In Rita, the Supreme
Court reasoned that, although the district court had provided a limited explanation
of its sentence, the record showed that the court had listened to the evidence and
arguments and was aware of the various factors that would justify a lower
sentence. Id. at 358, 127 S. Ct. at 2469.
4
Case: 12-15463 Date Filed: 08/14/2013 Page: 5 of 6
On finding the district court’s sentencing decision procedurally reasonable,
we turn to the decision’s substantive reasonableness. Gall, 552 U.S. at 51, 128 S.
Ct. at 597. We review the totality of the facts and circumstances to gauge for
substantive error. Irey, 612 F.3d at 1189–90. The relevant inquiry is “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 court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” set out in 18 U.S.C. § 3553(a)(2), which
include the need 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 the defendant’s future criminal conduct. See 18 U.S.C.
§ 3553(a)(2). The court must also consider 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 restitution to victims. Id. § 3553(a)(1), (3)-(7).
The court is not required “to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead, its
acknowledgment that it has considered them is sufficient. Talley, 431 F.3d at 786.
5
Case: 12-15463 Date Filed: 08/14/2013 Page: 6 of 6
Additionally, the weight given to each factor is “a matter committed to the sound
discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007) (citation omitted). The court can consider factors even if they were
considered during the calculation of the defendant’s Guidelines sentence range.
United States v. Williams, 526 F.3d 1312, 1324 (11th Cir. 2008) (concluding that
the district court properly considered the defendant’s prior fraud-related crimes in
the § 3553(a) factors, specifically, the history and characteristics of the offender).
We may vacate a sentence only if we are “left with the definite and firm conviction
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. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008) (quotation omitted).
The sentence in this case is both procedurally and substantively reasonable
because the District Court (1) sufficiently explained its reliance on Valdes’s
restitution-payment history, and (2) acted within its discretion in weighing the
§ 3553(a) factors as it did. The judgment of the District Court is accordingly
AFFIRMED.
6