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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15943
Non-Argument Calendar
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D.C. Docket No. 4:13-cr-00004-BAE-GRS-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RICARDO VAZQUEZ-GARCIA,
a.k.a. Peluqillas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(August 7, 2014)
Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Appellant Jose Ricardo Vazquez-Garcia pled guilty to Count Three of a
superseding indictment charging him, and 16 others with conspiring, in violation of
18 U.S.C. § 371, to coordinate the transportation of women who had entered the
United States illegally to Savannah, Georgia and elsewhere for the purpose of
prostitution; to transport these women to and from Savannah to cause them to
engage in prostitution; to harbor these women in various residences in Savannah;
and to engage in sexual activities with these women in Savannah and elsewhere, all
in violation of 18 U.S.C. § 2421. The district court thereafter sentenced Appellant
to a prison term of 36 months, varying upward from the Guidelines range of 15 to
21 months. He now appeals his sentence.
Appellant argues that his sentence was procedurally unreasonable because
the district court’s upward variance was inadequately explained and based on
clearly erroneous assumptions about factors already taken into account by the
Guidelines range. He also challenges the substantive reasonableness of his
sentence, contending that the court not only gave significant weight to irrelevant or
improper factors but also placed too much weight on the nature and circumstances
of his offense, rather than focusing on factors in mitigation of his sentence.
Generally, we review the reasonableness of all sentences, whether they are
within or outside of the Guidelines, under a deferential abuse of discretion standard
of review. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d
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445 (2007). Appellant has the burden of establishing that his sentence is
unreasonable in light of the record, the purposes of a criminal sentence as set out in
18 U.S.C. § 3553(a)(2)(A)-(C), and the other sentencing factors of § 3553(a).
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
I. Procedural Reasonableness
In reviewing the reasonableness of a sentence, we first ensure that the
district court committed no significant procedural error, such as improperly
calculating the guideline range, treating the Sentencing Guidelines as mandatory
rather than advisory, failing to consider the appropriate statutory factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597.
The district court need not articulate in detail its consideration of the
§ 3553(a) factors but must “‘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.’” United States v. Ghertler, 605 F.3d 1256,
1262 (11th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S. Ct.
2456, 2468, 168 L.Ed.2d 203 (2007)). Additionally, the court does not abuse its
discretion by enhancing a defendant’s sentence based on the same factors already
accounted for by the Guidelines. United States v. Amedeo, 487 F.3d 823, 833-34
(11th Cir. 2007). The court also does not abuse its discretion by enhancing a
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defendant’s sentence on the basis of undisputed facts contained in the PSI, as such
facts are deemed admitted if not objected to by the defendant. United States v.
Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).
Appellant’s sentence, above the applicable Guidelines range, is procedurally
reasonable. The court correctly calculated the Guidelines range, treated the
Guidelines as advisory, based the sentence on undisputed facts, and explicitly
stated that it had considered the § 3553(a) factors. See Gall, 552 U.S. at 51, 128
S.Ct. at 597. Contrary to Appellant’s assertion that the court based his sentence on
clearly erroneous assumptions about the number of victims involved, the record
shows that the court used unobjected-to facts from the presentence report (“PSI”),
which he admitted at sentencing. As such, the court did not abuse its discretion in
relying on those admitted facts in sentencing. See Bennett, 472 F.3d at 833-34.
Moreover, the court adequately explained its decision to impose an upward
variance, pointing to Appellant’s “egregious” conduct, whereby he used his
“superior position to require or seek the submission of the prostitutes, who largely
were penniless, in a foreign land, without any resources whatsoever.”
II. Substantive Reasonableness
After reviewing the procedural reasonableness of a sentence, we then
examine whether the sentence is substantively unreasonable, taking into account
the extent of any variance, based on the totality of the circumstances. Gall, 552
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U.S. at 51, 128 S.Ct. at 597. This examination includes an inquiry into whether the
statutory factors in § 3553(a) support the sentence. United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008).
Pursuant to § 3553(a), the district court must impose a sentence “sufficient,
but not greater than necessary to comply with the purposes” set forth in 18 U.S.C.
§ 3553(a)(2), including promoting respect for the law, deterring criminal conduct,
and protecting the public from the defendant’s future criminal conduct. 18 U.S.C.
§ 3553(a)(2)(A)-(C). In determining a particular sentence, the court must consider
the nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guideline range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
The weight to be accorded any given § 3553(a) factor is a matter committed
to the sound discretion of the district court. United States v. Williams, 526 F.3d
1312, 1322 (11th Cir. 2008). A district court’s failure to give mitigating factors the
weight a defendant contends they deserve does not render the sentence
unreasonable. United States v. Lebowitz, 676 F.3d 1000, 1016-17 (11th Cir. 2012)
(quotation omitted), cert. denied, 133 S. Ct. 1492 (2013). We will only vacate a
sentence if we are “left with the definite and firm conviction that the district court
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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).
When the district court decides after “serious consideration” that a variance
is in order, based on the above § 3553(a) factors, it should explain why that
variance “is appropriate in a particular case with sufficient justifications.” Gall,
552 U.S. at 46, 128 S.Ct. at 594. Although there is no proportionality principle in
sentencing, a major variance does require a more significant justification than a
minor one. Irey, 612 F.3d at 1196. In imposing an upward variance, the district
court is free to consider any information relevant to a defendant’s “background,
character, and conduct.” United States v. Tome, 611 F.3d 1371 (11th Cir. 2010);
see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence.”).
Finally, a sentence imposed below the statutory maximum penalty is an
indicator of a reasonable sentence. See United States v. Early, 686 F.3d 1219,
1222 (11th Cir. 2012). For example, we have upheld as reasonable upward
variances above the applicable advisory guideline range where the sentence does
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not exceed the statutory maximum. See, e.g., United States v. Mateos, 623 F.3d
1350, 1366 (11th Cir. 2010).
Appellant does not demonstrate that his sentence was substantively
unreasonable in light of the record and the § 3553(a) factors. The district court’s
variance may be considered major at 71 percent, but it provided sufficient
justifications to support Vazquez-Garcia’s sentence. Gall, 552 U.S. at 50, 128
S.Ct. at 597; Irey, 612 F.3d at 1196. Although the court may have given greater
weight to the nature and circumstances of the offense and to Vazquez-Garcia’s
personal history and characteristics than other § 3553(a) factors, that is a decision
committed to the court’s sound discretion. See Williams, 526 F.3d at 1322. To the
extent that Appellant urges us to re-weigh the § 3553(a) factors to place greater
emphasis on his mitigating factors, we will not do so. See Lebowitz, 676 F.3d at
1016-17. Furthermore, the court properly considered his uncharged attempted
illegal entries and sexual conduct with the prostitute victims, as this information
was relevant to his background, character, and conduct. See Tome, 611 F.3d at
1371; 18 U.S.C. § 3661. Finally, while the extent of the variance exceeded the
advisory guideline range by 15 months, Appellant’s sentence of 36-months fell
well below the 60-month statutory maximum sentence. See Early, 686 F.3d at
1222; Mateos, 623 F.3d at 1366. As such, we cannot say that “the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
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at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” Irey, 612 F.3d at 1190.
AFFIRMED.
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