[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14234 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 4, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00169-RAL-TGW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
FERNANDO GARCIA-CERVANTES,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 4, 2011)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Fernando Garcia-Cervantes appeals the 60-month, above-Guidelines
sentence he received after he pleaded guilty to being found in the United States
following deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a)
and (b)(2).1 He raises two arguments to challenge the reasonableness of his
sentence. As neither is persuasive, we affirm the decision of the district court.
I.
We review the reasonableness of a sentence imposed by the district court
under the abuse-of-discretion standard.2 Gall v. United States, 552 U.S. 38, 41,
128 S. Ct. 586 (2007). That standard allows for a range of acceptable sentences.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). As long as
the sentence does not demonstrate a clear error in judgment, it will be affirmed.
Id.
When evaluating the reasonableness of a sentence, we engage in a two-step
process. First, we verify that the district court imposed a sentence free from any
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—including an explanation for any
1
The applicable Guidelines range was 33–41 months.
2
The Government argues for plain-error review. However, because we conclude that
Garcia-Cervantes does not succeed under an abuse-of-discretion standard, we need not resolve
that issue.
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deviation from the Guidelines range.” Gall, 552 U.S. at 51.
If the sentence is procedurally reasonable, we next evaluate its substantive
reasonableness. Id. The district court is required to impose a sentence that is
sufficient, but not greater than necessary, to comply with the purposes listed in 18
U.S.C. § 3552(a)(2). Id. at 50 n.6. In determining the appropriate sentence, it
must consider the totality of the circumstances and the § 3553(a) factors,
including, inter alia, the nature and circumstances of the offense, the
characteristics of the defendant, the applicable Guidelines range, and the need to
avoid unwarranted sentencing disparities. Id. at 51. A successful sentencing
disparity claim requires the defendant to prove that he received a more severe
sentence than similarly situated individuals. See United States v. Spoerke, 568
F.3d 1236, 1252 (11th Cir. 2009). A defendant seeking relief based on a
sentencing disparity cannot present bare statistical evidence, without context, as
that would not sufficiently establish that he is in a comparable factual
circumstance to the individuals considered in compiling the data. See United
States v. Campbell, 491 F.3d 1306, 1317 (11th Cir. 2007).
The district court’s explanation for a variance from the Guidelines range
“must be compelling enough to support the degree of the variance and complete
enough to allow meaningful appellate review.” United States v. Shaw, 560 F.3d
3
1230, 1238 (11th Cir. 2009) (internal quotation marks omitted). Facts already
considered in the Guidelines calculation may properly justify a variance if they
“fit[] squarely into one of the § 3553(a) factors.” See United States v. Williams,
526 F.3d 1312, 1324 (11th Cir. 2008) (per curiam).
II.
Garcia-Cervantes’s first argument challenges the reasonableness of district
courts in the Eleventh Circuit as an institution.3 He crafts his claim around
statistical evidence released by the United States Sentencing Commission. He
argues that his sentence is substantively unreasonable because district courts in the
Eleventh Circuit impose above-Guidelines sentences in a higher percentage of
criminal cases involving immigration issues than district courts nationally.
Specifically, above-Guidelines sentences are imposed in 1.66% of criminal
immigration cases nationally, but they are imposed in 2.5% of those cases in the
Eleventh Circuit. Moreover, in the Fifth and Ninth Circuits, which handle far
more immigration cases, above-Guidelines sentences are imposed in 1.77% and
0.88% of cases, respectively. Accordingly, Garcia-Cervantes contends that district
courts in the Eleventh Circuit have created an unwarranted sentencing disparity.
3
It is unclear whether this is a stand-alone argument or is simply intended to put this
Court on notice that we should carefully scrutinize sentences in criminal immigration cases. We
view the argument through both lenses.
4
Garcia-Cervantes’s argument fails to create the requisite nexus between the
cases that form the basis for the statistics and his own. While he refers to the
broad categories described in the Sentencing Commission’s report, he fails to
describe the specific factual context involved in any of the cases. Therefore, no
meaningful comparison can be drawn on the basis of the statistics offered. The
district court pointed to facts specific to Garcia-Cervantes in reaching its
conclusion, and the statistics offered do not render its determination unreasonable.
III.
Garcia-Cervantes next raises more traditional challenges to his sentence.
He first argues that his sentence is procedurally unreasonable because the district
court failed to supply adequate justification for its decision to impose a 60-month
sentence. Specifically, he challenges the district court’s reliance on his previous
criminal transgressions to justify an upward variance because those crimes were
used in the calculation of his Guidelines range. Furthermore, he contends that the
district court imposed a sentence that was substantively unreasonable as it was
longer than necessary to promote the sentencing goals articulated by Congress.
The district court’s determination was neither procedurally nor
substantively unreasonable. The district court properly calculated the Guidelines
range, based the sentence on undisputed facts, and considered the § 3553(a)
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factors. While the sentence imposed did exceed the Guidelines range, the district
court provided a meaningful explanation for the variance. It took into account a
number of factors unique to Garcia-Cervantes, such as his immediate re-entry after
his initial deportation and the close temporal proximity of his offenses. Although
these crimes were part of the Guidelines calculation, the district court
appropriately considered them as part of the history and characteristics of the
defendant. See 18 U.S.C. § 3553(a)(1). In exercising its discretion, the district
court ultimately determined that a 60-month sentence was necessary to “reflect the
seriousness of the offense and deter[] future criminal conduct, especially [Garcia-
Cervantes’s] future criminal conduct, and protect[] the public, and [] promote
respect for the law.” That conclusion does not constitute an abuse of discretion.
IV.
For the foregoing reasons, we affirm Garcia-Cervantes’s sentence.
AFFIRMED.
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