[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14523 ELEVENTH CIRCUIT
JUNE 14, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-20424-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO RUIZ-FLORES,
a.k.a. Jose Luis Canales,
a.k.a. Juan Jose Gomez-Carrasco,
a.k.a. Juan Sanchez-Mendez,
a.k.a. Jose Gomez,
a.k.a. Jose Luis Rios Canales,
a.k.a. Jose Luis Mendoza Canales,
a.k.a. Jose Canales Mendoza,
a.k.a. Jose Rios Canales,
a.k.a. Juan Mendez,
a.k.a. Jose Luis Vasquez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 14, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Jose Antonio Ruiz-Flores appeals his 60-month sentence, twice the length of
the top end of the applicable advisory guidelines range, for illegally re-entering the
United States after having been deported as a non-aggravated felon, in violation of
8 U.S.C. § 1326(a) and (b)(1). On appeal, Ruiz-Flores makes three arguments.
First, he argues that the district court’s four-level increase of his offense level
pursuant to U.S.S.G. § 2L1.2 is inherently unreasonable and results in
impermissible double-counting of a defendant’s criminal history. Second, he
argues that his sentence was unreasonable under the 18 U.S.C. § 3553(a)
sentencing factors. Third, he argues that his sentence was unreasonable in light of
the disparity between his sentence and the sentences of defendants who are
indicted and sentenced in so-called “fast-track districts.”
I.
Although Ruiz-Flores argues that his sentence was unreasonable due to the
inherent unreasonableness of § 2L1.2, the reasonableness standard only applies
when reviewing a defendant’s final sentence, rather than “each individual decision
made during the sentencing process.” United States v. Winingear, 422 F.3d 1241,
1245 (11th Cir. 2005). As to those individual decisions, plain-error review applies
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when “a defendant fails to clearly articulate a specific objection during
sentencing,” thus waiving the objection on appeal. United States v. Zinn, 321 F.3d
1084, 1088 (11th Cir. 2003) (emphasis omitted). Because Ruiz-Flores challenges
§ 2L1.2 for the first time on appeal, we review the district court’s application of §
2L1.2 for plain error. Under plain-error review, the defendant must demonstrate
that (1) an error occurred, (2) the error was plain, (3) the error affected substantial
rights, and (4) the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. See, e.g., United States v. Camacho-Ibarquen,
410 F.3d 1307, 1315 (11th Cir. 2005). Generally, “[a]n error is not plain unless it
is contrary to explicit statutory provisions or to on-point precedent in this Court or
the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir.
2009).
The district court’s application of § 2L1.2 was not plain error. “Double
counting a factor during sentencing is permissible if the Sentencing Commission
intended the result, and if the result is permissible because each section concerns
conceptually separate notions relating to sentencing.” United States v. Adeleke,
968 F.2d 1159, 1161 (11th Cir. 1992) (quotation omitted). As to U.S.S.G. § 2L1.2,
the Sentencing Commission intended prior felony convictions to count both under
the criminal history category and § 2L1.2(b)(1)(D). See U.S.S.G. § 2L1.2,
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comment. (n.6) (“A conviction taken into account under subsection (b)(1) is not
excluded from consideration of whether that conviction receives criminal history
points . . .”). In addition, those two sections serve different purposes. Adeleke, 968
F.2d at 1161 (“The criminal history section is designed to punish likely recidivists
more severely, while the enhancement under § 2L1.2 is designed to deter aliens
who have been convicted of a felony from re-entering the United States.”). Section
2L1.2, therefore, does not result in impermissible double-counting. Id. Ruiz-
Flores’s challenge is without merit because § 2L1.2 does not result in
impermissible double-counting and the district court, therefore, did not err, much
less plainly err, in any reliance it placed on that guidelines provision.
II.
Ruiz-Flores next argues that his 60-month sentence was unreasonable
because it represents a major departure from the applicable guidelines range of 24
to 30 months. We review the reasonableness of a sentence under a 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). Reasonableness review involves a two-step
process. United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009), cert.
denied, 129 S. Ct. 2847 (2009). First, we determine whether the district court
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committed any significant procedural error; second, if we find the sentence to be
procedurally sound, we review the substantive reasonableness of the sentence
under the totality of the circumstances, “including the extent of any variance from
the Guidelines range.” Id. (quotation omitted).
A district court commits a significant procedural sentencing error if it, for
example, (1) improperly calculates the guidelines range, (2) treats the Guidelines
as mandatory, (3) fails to consider the 18 U.S.C. § 3553(a) sentencing factors,
(4) selects a sentence based on clearly erroneous facts, or (5) fails to explain the
chosen sentence adequately. Gall, 552 U.S. at 51, 128 S. Ct. at 597. With regard
to the fifth type of procedural error, the district court “should set forth enough to
satisfy the appellate court that [it] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking authority.” Rita
v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L.Ed.2d 203
(2007). “Sometimes the circumstances will call for a brief explanation; sometimes
they will call for a lengthier explanation.” Id. at 357, 127 S. Ct. at 2468. “Where
the judge imposes a sentence outside the Guidelines, the judge will explain why he
has done so.” Id. Nevertheless, “it [is] not incumbent on the District Judge to raise
every conceivably relevant issue on his own initiative.” Gall, 552 U.S. at 54, 128
S. Ct. at 599.
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In this case, the district court thoroughly explained why it was imposing a
sentence above the top end of the applicable guidelines range. The court explained
that the guidelines range for Ruiz-Flores’s offense did not accurately reflect the 18
U.S.C. § 3553(a) factors as they applied to him, reasoning that Ruiz-Flores’s
extensive criminal history and three prior convictions for illegal re-entry warranted
an upward variance under those factors. We therefore detect no procedural error in
the district court’s sentencing of Ruiz-Flores.
If there is no procedural error, we then review the substantive
reasonableness of the sentence. Id. at 51, 128 S. Ct. at 597. “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A
sentence is substantively unreasonable if, under the totality of the circumstances, it
fails to achieve the purposes of sentencing listed in 18 U.S.C. § 3553(a). United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
We “recognize that there is a range of reasonable sentences from which the
district court may choose.” Talley, 431 F.3d at 788. “In reviewing the
reasonableness of a sentence outside the Guidelines range, appellate courts may [ ]
take the degree of variance into account and consider the extent of a deviation from
the Guidelines.” Gall, 552 U.S. at 47, 128 S. Ct. at 594-95. Generally, “a major
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departure should be supported by a more significant justification than a minor
one.” Id. at 50, 128 S. Ct. at 597. No “presumption of unreasonableness” attaches
to a sentence outside the guidelines range. Id. at 47, 128 S. Ct. at 595.
Moreover, “[b]ecause of its institutional advantage in making sentence
determinations, a district court has considerable discretion in deciding whether the
§ 3553(a) factors justify a variance and the extent of one that is appropriate.”
Shaw, 560 F.3d at 1238 (quotations and citation omitted). Stated differently,
[w]e may vacate a sentence because of the variance 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.
Id. (quotation omitted). “[T]hat we might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal.” Id. (quotation
omitted). In reviewing the substantive reasonableness of a sentence, we have
compared the actual sentence imposed to the applicable statutory maximum term
of imprisonment. See, e.g., United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008) (holding that the defendant’s 50-month sentence for violating 8 U.S.C.
§ 1326(b)(1) was substantively reasonable in part because the sentence was well
below the statutory maximum of 10 years’ imprisonment), cert. denied, 129 S. Ct.
2848 (2009); Winingear, 422 F.3d at 1246.
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Ruiz-Flores’s sentence was not substantively unreasonable because, while it
exceeded the top end of the guidelines range for his offense level, that range failed
to account fully for his extensive criminal history, especially his three prior
convictions for the same offense as the instant offense. We are further persuaded
that the sentence was not substantively unreasonable by the fact that Ruiz-Flores’s
60-month sentence fell well below the statutory maximum term of imprisonment of
ten years. See 8 U.S.C. § 1326(b)(1).
III.
As to Ruiz-Flores’s third point of error, we have held that district courts,
when considering sentencing disparity under § 3553(a)(6), may not take into
account the availability of “fast-track” early disposition programs in other districts.
See United States v. Vega-Castillo, 540 F.3d 1235, 1238-39 (11th Cir. 2008), cert.
denied, 129 S. Ct. 2825 (2009). Our precedent therefore forecloses Ruiz-Flores’s
argument that the availability of “fast-track” early disposition programs in some
districts but not others leads to disparities in sentencing.
Upon consideration of the record on appeal, and after review of the parties’
briefs, we affirm Ruiz-Flores’s sentence.
AFFIRMED.1
1
Appellant’s request for oral argument is denied.
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