[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10230 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 16, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20813-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
WALTER PEREIRA-FLORES,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 16, 2010)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Walter Pereira-Flores appeals his 87-month sentence after pleading guilty to
conspiracy to possess with intent to distribute at least 100 kilograms of marijuana
while aboard a vessel subject to the jurisdiction of the United States, in violation
of 46 U.S.C. §§ 70503(a), 70506(b), and 21 U.S.C. § 960(b)(2)(G). On appeal,
Pereira-Flores argues that his sentence is unreasonable because the court did not
properly apply the 18 U.S.C. § 3553(a) factors, and because it did not consider
mitigating factors. We conclude that his sentence is reasonable, and AFFIRM.
I.
In the early morning of September 9, 2009, United States Coast Guard
personnel found an idle thirty-foot boat in international waters with its
navigational lights turned off. A man on board, who turned out to be Pereira-
Flores, was throwing packages into the water. The recovered packages contained
approximately 303 kilograms of marijuana. Another individual on the boat later
told authorities that Pereira-Flores was paying him $30,000 for his help smuggling
the marijuana into the United States from the Bahamas.
Pereira-Flores pleaded guilty to conspiracy to possess with intent to
distribute at least 100 kilograms of marijuana on board a vessel. The probation
officer calculated two criminal history points based on Pereira-Flores’s two prior
convictions: entering Cuban territorial waters with a vessel, and failure to heave a
vessel in defiance of an order by a federal law enforcement officer. Pereira-Flores
violated the terms of his supervised release for the first offense by committing the
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present offense and by not reporting another arrest (for a traffic offense) to his
probation officer. He was awaiting sentencing for the failure to heave offense
when he was sentenced in this case. The probation officer added two points to
Pereira-Flores’s criminal history because he was on supervised release when he
committed this offense. See United States Sentencing Guidelines § 4A1.1(d)
(Nov. 2009). Pereira-Flores was assessed four criminal history points total and a
criminal history category of III, and an offense level of 25, which yielded a
Guideline range of 70 to 87 months imprisonment.
The district court noted that Pereira-Flores’s conduct in this offense was
similar to his two previous convictions (presumably because all three involved
vessels), and sentenced him to 87 months imprisonment. Pereira-Flores’s attorney
objected, arguing that his prior convictions had already been factored into his
criminal history category, and should not be considered for selecting a sentence.
The district court stated that it had actually considered sentencing Pereira-Flores
above the Guideline range, given that he has demonstrated a consistent disregard
for the laws of the United States since he entered this country. The court
specifically mentioned four § 3553(a) factors as influencing the sentence:1 the
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
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
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nature and circumstances of this offense, the history and characteristics of Pereira-
Flores, the need to promote respect for the law and the need to provide deterrence.
II.
We review Pereira-Flores’s sentence for reasonableness. United States v.
Talley, 431 F.3d 784, 785 (11th Cir. 2005). Our review is deferential; we ask only
“whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” Id. at 788. While the sentence must be
both procedurally and substantively reasonable, see United States v. Sarras, 575
F.3d 1191, 1219 (11th Cir. 2009), Pereira-Flores does not identify any procedural
error. Thus, we focus our analysis on whether his sentence was substantively
reasonable based on the factors he identifies. See United States v. Docampo, 573
F.3d 1091, 1103 (11th Cir. 2009) (limiting our review of reasonableness only to
those factors identified by the party challenging the sentence).
Pereira-Flores makes three arguments that his sentence at the top of the
Guideline range is not reasonable. First, he claims that the district court
impermissibly considered the fact that he committed the offense while on
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 Guideline 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. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
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supervised release, although this fact was already calculated in his criminal
history. Second, he claims that the circumstances of his offense were not
particularly heinous because there was no high speed chase and the marijuana was
recovered. Pereira-Flores also claims that the district court impermissibly weighed
the fact that he had entered the United States illegally, although it appears that the
illegality of his entry was never actually established at sentencing, only that he
was under removal proceedings.2
Although Pereira-Flores says the district court relied on these factors to the
exclusion of other factors, he does not identify what factors the court erroneously
omitted. He does not, for example, identify any pertinent background
characteristics or mitigating facts that would have warranted a sentence at the low
end of the Guideline range. The district court is not required to discuss all the
factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). It has
discretion to give greater weight to any single factor so long as it acknowledges, as
the court did here, that it has considered the § 3553(a) factors. Id.; see also United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (noting that we defer to
2
The record does not reflect, for example, whether the illegality of Pereira-Flores’s
presence is due to his prior convictions or if he originally entered the country illegally. Although
he is under removal proceedings for illegal presence, he has a valid social security card for work
authorized by the Department of Homeland Security.
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the district court’s judgment in weighing the § 3553(a) factors unless it has made a
clearly erroneous judgment).
We conclude that the district court had legitimate, articulated reasons for
selecting the 87-month sentence. The court considered the § 3553(a) factors, and
pointed to specific concerns it had about Pereira-Flores’s pattern of criminal
behavior in such a short period of time. It was appropriate for the court to
consider Pereira-Flores’s prior criminal acts in fashioning a sentence, as those acts
are relevant to several of the § 3553(a) factors. We have held that a district court
may consider facts that have already been accounted for under the Guideline
calculation when selecting a sentence based on the § 3553(a) factors. Amedeo,
487 F.3d at 833–34. Furthermore, Pereira-Flores has pointed to no mitigating
factors that make his sentence unreasonable. Although the sentence is at the top of
the Guideline range, it is far below the forty-year statutory maximum for his
offense. See 21 U.S.C. 960(b)(2)(G); see also Gonzalez, 550 F.3d at 1324; United
States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Because Pereira-
Flores’s 87-month sentence is reasonable, we AFFIRM.
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