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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14553
Non-Argument Calendar
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D.C. Docket No. 8:13-cr-00262-WJC-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISIDRO RAMIREZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 14, 2014)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Isidro Ramirez-Martinez appeals his total 48-month sentence, imposed after
pleading guilty to one count of illegal reentry of a deported alien, in violation of
8 U.S.C. § 1326(a), and one count of illegal entry by an alien, in violation of
8 U.S.C. §§ 1325(a)(1) and 1329. The district court imposed an advisory guideline
sentence of 48 months’ imprisonment by imposing consecutive statutory maximum
sentences for both counts, in accordance with U.S.S.G. § 5G1.2(d), which allows
for consecutive sentences when the sentence for the count carrying the highest
statutory maximum is less than the total punishment prescribed by the Sentencing
Guidelines. On appeal, Ramirez-Martinez argues that his sentence is procedurally
unreasonable because the district court failed to adequately explain the reasons for
imposing a 48-month statutory maximum total sentence, even though he had made
numerous arguments for a sentence below the statutory maximum. He also argues
that his sentence is substantively unreasonable. Finally, he argues that the district
court erred in applying a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), based on its finding that his prior conviction under Fla. Stat.
§ 843.01, for resisting an officer with violence, was a “crime of violence.” He
maintains that his prior conviction under Fla. Stat. § 843.01 was not a “crime of
violence.”
We will address each of Ramirez-Martinez’s arguments in turn.
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I.
We review the reasonableness of a sentence using a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct.
586, 591, 169 L.Ed.2d 445 (2007). In evaluating the reasonableness of a sentence,
we follow a two-step process by first determining whether the sentence is
procedurally reasonable, and then if necessary, determining if the sentence is
substantively reasonable. Id. at 51, 128 S.Ct. at 597. A sentence may be
procedurally unreasonable if the sentencing court fails to consider the factors set
forth in 18 U.S.C. § 3553(a), fails to properly calculate the appropriate guidelines
range, or fails to adequately explain the chosen sentence. Id. However, given the
advisory nature of the Sentencing Guidelines, it is sufficient if there is some
indication that “the district court was aware of and considered the Guidelines.”
United States v. Campbell, 473 F.3d 1345, 1349 (11th Cir. 2007) (quotation
omitted). Consequently, the district court need not discuss or explicitly state on the
record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005).
“The sentencing judge should set forth enough to satisfy [us] 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
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S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). However, “when a judge decides
simply to apply the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation. Circumstances may well make clear that the judge
rests his decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence.” Id. at 356-57, 127 S.Ct. at 2468. “Where the
defendant or prosecutor presents nonfrivolous reasons for imposing a different
sentence, however, the judge will normally go further and explain why he has
rejected those arguments.” Id. at 357, 127 S.Ct. at 2468. The appropriateness of
how much to write and what to say therefore depends on the circumstances of the
case, and “[t]he law leaves much, in this respect, to the judge’s own professional
judgment.” Id. at 356, 127 S.Ct. at 2468.
Once we determine that a sentence is procedurally reasonable, we examine
whether the sentence imposed is substantively reasonable. Gall, 552 U.S. at 51,
128 S.Ct. at 597. In reviewing for substantive reasonableness, we examine the
totality of the circumstances and ask “whether the statutory factors in § 3553(a)
support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). The party challenging the sentence has the burden of
demonstrating that the sentence is unreasonable in light of the record and factors
outlined in § 3553(a). United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We will remand for resentencing only if the district court “committed a clear error
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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).
Pursuant to § 3553(a), the district court must impose a sentence “sufficient,
but not greater than necessary, to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2), including the need to reflect the seriousness of the offense, to
promote respect for the law, to provide just punishment for the offense, to deter
criminal conduct, and to protect the public from the defendant’s future criminal
conduct. See 18 U.S.C. § 3553(a). In imposing a particular sentence, the district
court must also 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 given to any specific
§ 3553(a) factor is committed to the sound discretion of the district court. United
States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). However, the district
court can abuse its discretion when it (1) fails to consider factors that were due
significant weight, (2) gives an improper or irrelevant factor significant weight, or
(3) commits a clear error of judgment by balancing the proper factors
unreasonably. Irey, 612 F.3d at 1189.
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Ramirez-Martinez has failed to show that his sentence was procedurally
unreasonable. On appeal, he argues that the district court failed to adequately
explain its chosen sentence. However, his argument is unavailing because this was
one of the situations contemplated by the Supreme Court in Rita, where a lengthy
explanation was not required because the circumstances make clear that the district
court rested its decision upon the United States Sentencing Commission’s own
reasoning that the Guidelines sentence was the proper sentence. See Rita, 551 U.S.
at 356-57, 127 S.Ct. at 2468. Here, the advisory guideline range was a single
point, 48 months, and that point was the statutory maximum with consecutive
sentences. The government argued for it, noting that it was well below the bottom
end of the advisory guideline range before the imposition of the statutory
maximum. Ramirez-Martinez, in opposition, argued for a 24-month total sentence,
and in support, maintained that it would be sufficient punishment and deterrence,
because it was 8 times as long as his prior 105-day sentence for illegal entry. He
also argued that because the offenses of illegal reentry and illegal entry consisted
of nearly identical conduct, the district court would essentially be “punish[ing] him
twice or basically commit[ing] double jeopardy,” if it imposed consecutive
sentences. However, he conceded that it would not “legally [be] double jeopardy.”
Finally, he argued that a total sentence of 48 months’ imprisonment would give
him no credit for his acceptance of responsibility and timely guilty plea.
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After entertaining the parties’ arguments, the district court imposed the
Guidelines sentence, and stated that the sentence was sufficient, but not greater
than necessary, to comply with the statutory purposes of sentencing, necessarily
indicating that it had rejected Ramirez-Martinez’s position and agreed with the
government’s position. In imposing the sentence, the district court did not need to
provide a lengthy explanation for rejecting several of Ramirez-Martinez’s
arguments, particularly his “double jeopardy” argument, which even he conceded
was not “legally double jeopardy.” See Rita, 551 U.S. at 357, 127 S.Ct. at 2468
(“Where the defendant or prosecutor presents nonfrivolous reasons for imposing a
different sentence, . . . the judge will normally go further and explain why he has
rejected those arguments.”). However, the district court did give a response to
Ramirez-Martinez’s acceptance of responsibility argument, essentially stating that
Ramirez-Martinez had received the benefit for his acceptance of responsibility in
the guideline calculations, even though it did not show up in the total 48-month
sentence, due to the application of the statutory maximum. As for the rest of
Ramirez-Martinez’s arguments, they were adequately addressed by the district
court’s implicit agreement with the government’s explanation that Ramirez-
Martinez had already received a substantial benefit with the imposition of a total
48-month sentence, because, if the government had properly charged him with the
offense of illegal reentry of a previously deported felon, based upon his prior
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conviction under Fla. Stat. § 843.01, he would have faced an advisory guideline
range of 57 to 71 months’ imprisonment and a statutory maximum sentence of 10
years’ imprisonment. Accordingly, under the circumstances, the district court’s
brief explanation was legally sufficient. See Rita, 551 U.S. at 356, 127 S.Ct. at
2468.
Ramirez-Martinez has also failed to show that his sentence was
substantively unreasonable. He has not shown that his Guidelines sentence of 48
months’ imprisonment was substantively unreasonable in light of the totality of the
circumstances and the § 3553(a) factors. See Gonzalez, 550 F.3d at 1324. The
need for the sentence to promote respect for the law and adequate deterrence was
high, given Ramirez-Martinez’s history of quickly and repeatedly making illegal
reentries into the United States after being deported. Ramirez-Martinez’s
Guidelines sentence was also reasonable in light of his own history and
characteristics, particularly his criminal history of multiple arrests and convictions
in the United States, including a conviction for resisting an officer with violence
and a conviction for battery. Accordingly, we affirm.
II.
“We review the district court’s findings of fact for clear error and its
application of the Sentencing Guidelines de novo.” United States v. Newman, 614
F.3d 1232, 1235 (11th Cir. 2010) (quotation omitted). Accordingly, whether a
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defendant’s prior conviction constitutes a “crime of violence” under the Guidelines
is reviewed de novo. United States v. Diaz-Calderone, 716 F.3d 1345, 1348 (11th
Cir. 2013).
Under the Guidelines, a defendant being sentenced for illegal reentry into
the United States may receive a 16-level enhancement if he was previously
deported following a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). In
Romo-Villalobos, we held that a conviction under Fla. Stat. § 843.01, for resisting
an officer with violence, was a “crime of violence” for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). United States v. Romo-Villalobos, 674 F.3d 1246, 1249-1251
(11th Cir.), cert. denied, 133 S.Ct. 248 (2012).
Ramirez-Martinez’s argument is foreclosed by Romo-Villalobos. See United
States v. Lawson, 686 F.3d 1317, 1319 (11th Cir.), cert. denied, 133 S.Ct. 568
(2012) (“We are bound by a prior panel opinion until the opinion’s holding is
overruled by the Supreme Court or by our Court sitting en banc.”). Accordingly,
we affirm the sentence on this ground.
AFFIRMED.
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