[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12012 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:08-cr-10071-KMM-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DIDIER GONZALEZ-VASQUEZ,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2010)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Didier Gonzalez-Vasquez appeals his 27-month sentence for conspiracy to
encourage and induce aliens to enter the United States, 8 U.S.C.
§ 1324(a)(1)(A)(v)(I). On appeal, Gonzalez-Vasquez argues that the district court
abused its discretion by sentencing him to the high end of the guideline range, and
by running his sentence consecutively to his sentences in another federal criminal
case. For the reasons set forth below, we affirm.
I.
A grand jury charged Gonzalez-Vasquez with 1 count of conspiracy to
encourage and induce aliens to enter the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), and 20 counts of encouraging and inducing an alien to
remain in the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and 18
U.S.C. § 2. Pursuant to a written plea agreement, Gonzalez-Vasquez agreed to
plead guilty to the conspiracy count of the indictment. The government promised
to seek dismissal of the remaining counts. The government also agreed to
recommend: (1) a reduction for acceptance of responsibility; (2) a sentence at the
low end of the advisory guideline range, as determined by the court; and (3) that
Gonzalez-Vasquez’s sentence run concurrently with his sentence from another
criminal case, United States v. Gonzalez-Vasquez, 09-20686-cr-JORDAN.
Gonzalez-Vasquez’s presentence investigation report set forth the following
facts. On May 27, 2008, the United States Coast Guard Cutter Chandeleur was
ordered to intercept a vessel with possible migrants on board. The Chandeleur
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approached within one nautical mile of the vessel, activated its blue law
enforcement lights, and ordered the vessel to stop. The operator of the vessel,
Ricardo Espildora, complied with the order and reduced the vessel’s speed. As a
Coast Guard boarding team approached the vessel, the officers observed that it
was overcrowded with people. The officers directed everyone to remain seated in
order to stabilize the vessel, and handed out life jackets to all of the passengers.
Espildora identified himself as the master of the vessel. He stated that he
and his crew member, Gonzalez-Vasquez, were on a pleasure trip when they
encountered 20 Cuban migrants stranded on Cay Sal. Espildora explained that he
intended to return to Miami with the refugees. The vessel did not have a
registration number on its hull, and no registration was found on board. Espildora
claimed to have borrowed the vessel from a friend, but was unable to give the
friend’s name. The vessel was carrying 15 gallons of fuel, eight one-gallon
containers of water, and 12 personal floatation devices.
Espildora and Gonzalez-Vasquez were subsequently charged with alien
smuggling offenses. Gonzalez-Vasquez was arrested on July 28, 2009, in
connection with another criminal case involving identity theft and fraudulent
credit card activity. In that case, Gonzalez-Vasquez paid Hector Souto to steal
credit card numbers using a “skimming” device. Gonzalez-Vasquez pled guilty to
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1 count of conspiracy to commit credit card fraud, 1 count of credit card fraud, and
1 count of aggravated identity theft, and was sentenced to a total term of 27
months’ imprisonment.
The PSI determined that Gonzalez-Vasquez had a total offense level of 15, a
criminal history category of II, and a guideline range of 21 to 27 months’
imprisonment. Gonzalez-Vasquez did not object to the PSI’s guideline
calculations. At the sentencing hearing, Gonzalez-Vasquez noted that the parties
had agreed to recommend a sentence at the low end of the guidelines, to run
concurrently with his sentences from the credit card fraud case. He argued that a
low-end sentence was appropriate in light of his limited role in the offense, his
timely guilty plea, which conserved prosecutorial and judicial resources, and the
fact that he already had spent 10 months in immigration custody
The district court recognized that Gonzalez-Vasquez and the government
had agreed to recommend a sentence at the low end of the guideline range.
However, the court concluded that such a sentence would not be sufficient to serve
the purposes of sentencing. The court observed that Gonzalez-Vasquez had been
in the United States for less than three years, and, during that time period, he had
either been incarcerated or involved in criminal activity. The court stated that
Gonzalez-Vasquez’s “track record” did not “suggest[] that he is going to have a
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successful, law-abiding lifestyle when he’s released from incarceration.”
The court noted that it was required to consider the 18 U.S.C. § 3553(a)
factors, including the history and characteristics of the defendant, the need to
promote respect for the law, and the need to provide adequate deterrence to
criminal conduct. The court concluded that a sentence at the low end of the
guideline range, or a sentence running concurrently to Gonzalez-Vasquez’s
sentence in the credit card fraud case, would fail to serve those purposes. The
court “appreciate[d]” Gonzalez-Vasquez’s efforts to preserve judicial resources by
pleading guilty, but it noted that Gonzalez-Vasquez already had received a
reduction for acceptance of responsibility. The district court sentenced
Gonzalez-Vasquez to the high end of the guideline range, 27 months. The court
specified that the sentence was to run consecutively to Gonzalez-Vasquez’s
sentence in the credit card fraud case.
II.
We review a sentence imposed by a district court for reasonableness, using
an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278
(11th Cir. 2009). Similarly, we review the imposition of a consecutive sentence
for an abuse of discretion. United States v. Covington, 565 F.3d 1336, 1346 (11th
Cir. 2009).
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We follow a two-step process in reviewing a sentence. First, we must
ensure that the district court did not commit a significant procedural error, “such
as failing to calculate (or improperly calculating) the Guidelines range, 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.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169
L.Ed.2d 445 (2007). In explaining the reasons for its sentence, the district court
“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, 356, 127 S.Ct.
2456, 2468, 168 L.Ed.2d 203 (2007). If the district court’s sentencing decision is
procedurally sound, we must then determine whether the sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128
S.Ct. at 597.
The party challenging the sentence has the burden of showing that it is
unreasonable in light of the record and the § 3553(a) factors. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). We “recognize that there is a range of
reasonable sentences from which the district court may choose,” and ordinarily
expect a sentence within the defendant’s advisory guideline range to be
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reasonable. Id. We will reverse a sentence as substantively unreasonable only 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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotation omitted).
When a defendant is sentenced for one offense while serving an
undischarged term of imprisonment for another, unrelated, offense, the sentence
“may be imposed to run concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to achieve a reasonable punishment”
for the defendant’s offense. U.S.S.G. § 5G1.3(c). In determining whether to
impose a consecutive sentence, the district court must consider the § 3553(a)
factors, the type and length of the prior sentence, the time likely to be served on
the prior sentence, the court that imposed the prior sentence, and any other
relevant circumstances. U.S.S.G. § 5G1.3, comment. (n.3(A)). We have
explained that the Sentencing Guidelines “evince a preference for consecutive
sentences when imprisonment terms are imposed at different times.” United States
v. Ballard, 6 F.3d 1502, 1506 (11th Cir. 1993).
In this case, Gonzalez-Vasquez’s contention that the district court failed to
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consider certain factors in determining his sentence implicates both procedural and
substantive reasonableness. His sentence would be procedurally unreasonable if
the district court wholly failed to consider his arguments. See Rita, 551 U.S. at
356, 127 S.Ct. at 2468. His sentence would be substantively unreasonable if the
district court considered his arguments but failed to give them sufficient weight in
determining his sentence. See Irey, 612 F.3d at 1190.
With respect to procedural reasonableness, the record shows that the district
court gave appropriate consideration to the arguments that Gonzalez-Vasquez
raised at the sentencing hearing. The court specifically addressed the parties’
sentencing recommendation and Gonzalez-Vasquez’s argument that his timely
plea of guilty conserved judicial resources, and it is apparent from the record that
the court considered his other arguments as well. Thus, no procedural error
occurred.
Gonzalez-Vasquez’s sentence is also substantively reasonable. Although
Gonzalez-Vasquez identified a number of considerations that might have militated
in favor of a shorter sentence, the district court did not commit a clear error in
judgment by giving other factors more weight. Given the fact that Gonzalez-
Vasquez committed two federal criminal offenses in the span of less than two
years, a longer sentence was justified based upon his history and characteristics,
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the need to promote respect for the law, and the need to protect the public from
further crimes committed by Gonzalez-Vasquez. See 18 U.S.C. § 3553(a)(1),
(2)(A), (2)(C). A sentence at the high end of the guideline range also has the
effect of deterring others from committing the same offense. See 18 U.S.C.
§ 3553(a)(2)(B).
It was not a clear error of judgment for the district court to conclude that the
sentence recommended by the parties failed to reflect Gonzalez-Vasquez’s prior
criminal history and likelihood of recidivism. The district court did not have to
give significant weight to Gonzalez-Vasquez’s apology or the fact that his plea of
guilty conserved judicial resources because his acceptance of responsibility was
already taken into account in the calculation of his guideline range. Also, the
district court did not have to accept Gonzalez-Vasquez’s argument that he played a
lesser role in the offense because the PSI determined that Gonzalez-Vasquez and
Espildora were equally culpable for the smuggling venture. Notably,
Gonzalez-Vasquez’s sentence is within his advisory guideline range, which we
ordinarily expect to be reasonable. See Talley, 431 F.3d at 788. We conclude that
district court did not abuse its discretion by sentencing Gonzalez-Vasquez to the
high end of the guideline range, 27 months.
In addition, the district court also did not abuse its discretion by running
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Gonzalez-Vasquez’s sentence consecutively to his sentences in the credit card
fraud case. The two offenses were committed at separate times and involved
different types of harms. Therefore, it was appropriate for the district court to
impose consecutive sentences to ensure that Gonzalez-Vasquez was adequately
punished for both crimes. Because Gonzalez-Vasquez has not met his burden of
showing that his sentence is procedurally or substantively unreasonable, we
affirm.
AFFIRMED.
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