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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16435
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20244-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEXIS BRACHE, SR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 31, 2013)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
After a jury trial, Alexis Brache appeals his convictions and 78-month
sentences for conspiracy to import cocaine, in violation of 21 U.S.C. § 963;
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importation of cocaine, in violation of 21 U.S.C. § 952(a) and 18 U.S.C. § 2;
attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846;
and possession with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1). After review, we affirm.
I. MOTION TO SUPPRESS
With respect to his convictions, Brache argues that the district court erred in
denying his pretrial motion to suppress evidence seized from his home. Following
an evidentiary hearing, a magistrate judge entered a report and recommendation
(“R&R) concluding that Brache’s motion to suppress should be denied. Brache did
not file any written objections to the R&R, which the district court adopted.
We conclude that Brache waived his right to appellate review of the denial
of his motion to suppress by not objecting to the magistrate judge’s R&R
recommending that the motion to suppress be denied. See Fed. R. Crim. P.
59(b)(2) (providing that the failure to file timely written objections to the R&R “in
accordance with this rule waives a party’s right to review”); see also United States
v. Garcia-Sandobal, 703 F.3d 1278, 1283 (11th Cir. 2013) (concluding that
defendant who failed to object to magistrate judge’s R&R recommending that
defendant’s guilty plea be accepted, waived appellate review under Rule 59(b)(2)).
Brache argues that because the district court’s order adopting the R&R states
that it does so “upon de novo review of the record,” Brache is not precluded from
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appellate review. To support his argument, Brache cites cases pre-dating the 2005
adoption of Federal Rule of Criminal Procedure 59. Rule 59, however, does not
make any distinction based on whether the district court reviews the R&R, de novo
or otherwise; it simply provides that appellate review in this Court is waived if a
party fails to object to the magistrate judge’s R&R. See Fed. R. Crim. P. 59
advisory committee’s note (2005) (explaining that the rule’s “waiver provision is
intended to establish the requirements for objecting in a district court in order to
preserve appellate review of magistrate judges’ decisions,” but does not affect the
district court’s authority to review the R&R “whether or not objections are timely
filed”). Thus, Brache’s reliance on case law that has been superseded by Rule 59
and this Court’s interpretation of this rule is misplaced.
Even if Brache had preserved this challenge, we would still affirm the
district court’s denial of the motion to suppress. It is undisputed that after entering
the residence and performing a protective sweep, the officers sat down with Brache
at his dining room table. At that time, the officers’ weapons were holstered, they
spoke in a conversational tone, and Brache was not handcuffed. The officers gave
Brache a copy of his Miranda rights in Spanish, which he then waived. After
speaking with an officer in Spanish, Brache was given a written consent form,
which explicitly stated that he had the right to refuse to consent to the search. One
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of the officers translated the consent form into Spanish for Brache. Brache
appeared to understand and signed the consent form.
During the subsequent consent search, officers found drugs in Brache’s
bedroom. Even assuming arguendo that law enforcement’s entry into, and
protective sweep of, Brache’s residence was illegal, Brache’s subsequent consent
to the search was voluntary, and any taint was sufficiently purged by the
intervening circumstances in which Brache gave his consent. See United States v.
Delancy, 502 F.3d 1297, 1309-14 (11th Cir. 2007).
II. Sentence
Brache also argues that his four concurrent 78-month sentences are
unreasonable. We review the reasonableness of a sentence under the deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591 (2007). We look first at whether the district court committed any
significant procedural error and then at whether the sentence is substantively
unreasonable under the totality of the circumstances. United States v. Pugh, 515
F.3d 1179, 1190 (11th Cir. 2008). 1
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Although Brache’s brief states that his sentence is both “procedurally and substantively
unreasonable,” it does not challenge the district court’s guidelines calculations or point to any
other procedural error at Brache’s sentencing. Nor does Brache’s brief make any substantive
argument with regard to procedural reasonableness. Thus, Brache has abandoned any challenge
to the procedural reasonableness of his sentence. See United States v. Jernigan, 341 F.3d 1273,
1283 n.8 (11th Cir. 2003).
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The abuse of discretion standard “allows a range of choice for the district
court, so long as that choice does not constitute a clear error of judgment.” United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation
marks omitted). “In the face of this [very broad] discretion, it is only the rare
sentence that will be substantively unreasonable.” United States v. McQueen, ___
F.3d ___, 2013 WL 4478640, at * 9 (11th Cir. Aug. 22, 2013). Thus, we ordinarily
expect a sentence within the advisory guidelines range to be reasonable. United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The party challenging the
sentence bears the burden of proving the sentence is unreasonable in light of the
record and the 18 U.S.C. § 3553(a) factors. Id. 2 We will reverse only if “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.” Pugh,
515 F.3d at 1191 (quotation marks omitted).
In this case, Bache has not demonstrated that his sentence is substantively
unreasonable in light of the record and the § 3553(a) factors. His total 78-month
2
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
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
guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to
avoid unwarranted sentence disparities; and (10) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
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sentence is within the advisory guidelines range of 63 to 78 months. It is also well
below the statutory maximum sentence of twenty years, which is another
indication that it is reasonable. See United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008).
The sentence, moreover, meets the goals encompassed within § 3553(a).
Brache arranged to smuggle 474 grams of cocaine from Honduras to the United
States using a DHL parcel. Brache had the parcel addressed to Gustavo Garcia, a
man who had merely done yard work for Brache, and then paid another man,
Yoelis Santos, $150 to receive the parcel from the DHL delivery driver and bring it
to him. In addition to the cocaine found inside the DHL parcel, Brache also had
28.4 grams of cocaine and 10.9 grams of marijuana in his residence. After his
arrest, Brache gave sworn statements to investigators that he had nothing to do
with the cocaine hidden inside the DHL parcel, which belonged to Santos.
However, after Brache was confronted with the drugs found inside his residence,
he admitted the drugs were his and to selling drugs.
At sentencing, the government asked for a sentence at the high end of the
advisory guidelines range, or 78 months. Brache asked for one at the low end, or
63 months, arguing that his “actions were occasioned by his regular use of cocaine
since 1991.” The district court stated that it had “considered the statements of the
parties, the presentence report containing the advisory guidelines and the statutory
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factors” and then imposed a 78-month sentence. The district court explained that it
had chosen a sentence at the high end of the range because “there were some
aggravating factors in this case, including the fact that Mr. Brache tried to put this
over on, as I recall, someone else initially.” Under the circumstances, we cannot
say the district court abused its broad discretion when it imposed a 78-month
sentence, at the high end of the guidelines range.
Brache’s sole argument with respect to reasonableness is that the district
court did not “appropriately weigh” his personal characteristics, including his age
(48 years old), that he had been married to his wife for thirty years, that he
supported his family, that he was disabled after he lost four fingers in a work
accident and that he had hypertension. Notably, Brache did not bring these
personal facts to the sentencing court’s attention. The facts were, however,
presented in the PSI, which the district court stated it had considered. The district
court clearly concluded that the aggravating fact that Brache tried to avoid criminal
liability by using and then implicating intermediaries outweighed Brache’s
personal circumstances. In essence, Brache asks us to second guess the weight the
district court accorded each of these factors, which is something we do not do
when, as here, the ultimate sentence is reasonable in light of all the circumstances
presented. See United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010).
AFFIRMED.
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