Case: 14-14728 Date Filed: 10/01/2015 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14728
Non-Argument Calendar
________________________
D. C. Docket No. 1:14-cr-20390-DPG-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL DEJESUS LORA,
a.k.a. Emillo Encarnacion Melendez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 1, 2015)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 14-14728 Date Filed: 10/01/2015 Page: 2 of 13
Manuel DeJesus Lora appeals his 120-month sentence, imposed above the
advisory guideline range of 63 to 78 months, after he pled guilty to one count of
conspiracy to possess five kilograms or more of cocaine with the intent to
distribute, in violation of 21 U.S.C. § 846 (Count 1); one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3); and
one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a)
(Count 4). On appeal, Mr. Lora argues that his sentence is procedurally and
substantively unreasonable.
Upon review of the parties’ briefs and the record, we conclude that the
district court did not abuse its discretion when it sentenced Mr. Lora, because it
sufficiently explained its reasons for imposing the sentence and appropriately
considered the 18 U.S.C. § 3553(a) factors. Accordingly, we affirm Mr. Lora’s
sentence.
I
Mr. Lora pled guilty to Counts 1, 3, and 4 of a four-count indictment.
According to the presentence investigation report (“PSI”), law enforcement
surveilled Mr. Lora purchasing cocaine from a co-conspirator outside an apartment
complex. During the arrest of the co-conspirator, Mr. Lora’s son attempted to
escape the premises while concealing approximately 1.5 kilograms of cocaine.
Subsequent to his arrest, Mr. Lora admitted to purchasing the cocaine. He also
2
Case: 14-14728 Date Filed: 10/01/2015 Page: 3 of 13
revealed that he was residing in the United States illegally and that he had been
deported in 2000 following a three-year prison term for conspiracy to distribute
cocaine. A subsequent search of his apartment led to the discovery of two firearms
under Mr. Lora’s bed and numerous rounds of ammunition in his bedroom closet.
Mr. Lora admitted that the guns were his.
The probation officer calculated a base offense level of 26 for Count 1
pursuant to U.S.S.G. § 2D1.1, and grouped Counts 1 and 3 pursuant to § 3D1.2(c).
Count 4 (illegal reentry) represented a separate harm and was calculated as a
separate group. Together, the groups added an additional 2-level enhancement to
the offense levels for Counts 1 and 3. Mr. Lora also received a 2-level
enhancement under § 2D1.1(b)(1) for possession of a dangerous firearm. The
probation officer then applied a 3-level reduction based on Mr. Lora’s acceptance
of responsibility, which resulted in a total adjusted offense level of 27.
Due to his prior narcotics convictions, Mr. Lora was assigned a criminal
history category of II. In 1998, Mr. Lora was convicted of conspiracy to distribute
and possess 7.2 kilograms of cocaine. In addition to the drugs, law enforcement
recovered a loaded handgun and various implements used for the packaging and
distribution of large quantities of cocaine from Mr. Lora’s residence. As noted
earlier, Mr. Lora served a three-year prison sentence and was deported in 2000.
3
Case: 14-14728 Date Filed: 10/01/2015 Page: 4 of 13
Based on his criminal history category of II and an adjusted total offense
level of 27, Mr. Lora’s advisory guidelines range was 78 to 97 months. The
maximum statutory penalty for Count 1 was 20 years’ imprisonment, while the
mandatory minimum was 5 years’ imprisonment. The maximum term of
imprisonment for Count 3 was 10 years, and the maximum term for Count 4 was
20 years.
In his acceptance of responsibility statement, Mr. Lora admitted that he “was
dealing in drugs.” PSI at 7 ¶ 23. He also indicated that he intended to continue
dealing in drugs had he not been caught: “I didn’t have enough for exactly 2 kilos
so I gave [the co-conspirator] $35,000 for under 2 kilos and I was going to pay him
the rest when I could sell what I had. There wasn’t any way in the world I could
have purchased 10 kilos at the time.” Id.
Mr. Lora objected to the amount of cocaine the PSI initially attributed to
him. At the sentencing hearing, the district court agreed that he should only be
responsible for 1.7 kilograms of cocaine, rather than the nearly 10 kilograms
indicated in the PSI. D.E. 75 at 8. This resulted in a mandatory minimum sentence
as to Court 1 of 5 years rather than 10. The district court also reduced Mr. Lora’s
total offense level by 2 levels, in anticipation of amendments to the guidelines that
would lower the base offense level. Id. at 12. The final adjusted offense level thus
4
Case: 14-14728 Date Filed: 10/01/2015 Page: 5 of 13
became 25. Based on these adjustments, Mr. Lora’s advisory guidelines range was
63 to 78 months’ imprisonment. Id. at 17.
The government then moved for an upward variance “to reflect the severity”
of the crimes, asserting that Mr. Lora’s criminal history and the circumstances of
the presently charged crimes justified the variance:
This is an individual who was a drug trafficker, was expelled
from the United States, came back, lived under an assumed identity
for a[n] extended period of time, resumed drug trafficking, had
firearms, had narcotics [and] involved his 19-year old son in the drug
trade. . . . This is an individual who . . . has no reason to be in the
United States other than to commit crimes. . . . [W]e would ask for a
high sentence . . . to reflect that.
Id. at 18.
Given an opportunity for allocution, Mr. Lora apologized for his actions and
stated that he did not oppose the sentence. Id. at 18–19. Mr. Lora also stated that he
had intended to return the firearm involved in Count 3, but was waiting for an
amnesty program regarding illegally obtained firearms. Id.
The district court granted the government’s motion for an upward variance
and ordered concurrent sentences of 120, 60, and 120 months’ imprisonment for
Counts 1, 3, and 4, respectively. Id. at 19–21. In imposing the sentences, the
district court explained:
The Court having considered the presentence investigation
report, the pleadings filed and the statements from the parties, I do
first note that the modified total offense level is a 25 and a criminal
history category of [II], which places the defendant’s advisory
5
Case: 14-14728 Date Filed: 10/01/2015 Page: 6 of 13
guideline range between 63 to 78 months. However, the Court finds
that a variance is appropriate.
The Court, again, having considered the statements of the parties,
the presentence report, which contains [the] advisory guideline range
and the statutory factors contained in Title 18, United States Code,
Section 3553[(a)], I find that again, the variance is appropriate.
....
And, again, the Court varied because I find that the sentence that
I imposed is reflective of the offenses involved, which are three
different offenses, very different in nature and the defendant’s
criminal history. And I find the sentence to be sufficient but not
greater than necessary.
(Id.). Counsel for Mr. Lora objected to the sentence and variance as being more
than necessary to satisfy the § 3553(a) factors. Id. at 21.
II
Mr. Lora first argues that his sentence was procedurally unreasonable
because the district court did not provide an adequate statement of reasons for its
variance from the guidelines range. Mr. Lora asserts that the district court did not
properly explain the specific conduct in his “record” that justified the upward
variance. He also argues that the district court improperly used his status as an
alien as justification for the upward variance.
We review the procedural reasonableness of a sentence imposed outside the
guidelines range for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). “[W]e must ensure that the district court committed no significant
6
Case: 14-14728 Date Filed: 10/01/2015 Page: 7 of 13
procedural error, such as ‘failing to consider the [18 U.S.C.] § 3553(a) factors[.]’”
United States v. Langston, 590 F.3d 1226, 1236 (11th Cir. 2009) (quoting Gail,
552 U.S. at 51) (alterations in Langston).1 “The party challenging the sentence has
the burden of showing the sentence to be procedurally unreasonable.” United
States v. Hill, 783 F.3d 842, 844 (11th Cir. 2015)
The district court must provide a statement of reasons for imposing a
sentence. See 18 U.S.C. § 3553(c). “Where the judge imposes a sentence outside
the Guidelines, he will explain why he has done so.” Rita v. United States, 551
U.S. 338, 357 (2007). But district courts do not have to conduct an accounting of
every factor or explain the role each played in the sentencing decision. See United
States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005). Rather, “[t]he sentencing
judge 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, 551 U.S. at 356. If the district court varies from
the guidelines range, it must offer a “sufficiently compelling [justification] to
support the degree of the variance.” United States v. Irey, 612 F.3d 1160, 1186–87
(11th Cir. 2010) (en banc). These justifications must be “complete enough to allow
1
The government suggests that we review Mr. Lora’s argument as to procedural reasonableness
under the plain error standard of review, contending that Mr. Lora failed to object to procedural
reasonableness at sentencing. We need not address this argument, however, because we affirm
under the abuse of discretion standard.
7
Case: 14-14728 Date Filed: 10/01/2015 Page: 8 of 13
meaningful appellate review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th
Cir. 2009).
The district court’s explanation of the sentence was not procedurally
unreasonable. The district court was not required to explicitly discuss the role that
each § 3553(a) factor played in the sentencing decision. Robles, 408 F.3d at 1328.
In any event, the court discussed both Mr. Lora’s criminal history and the
circumstances of the case. See D.E. 75 at 17, 19, 21. Additionally, the court stated
that it had, in making its determination, considered not only the § 3553(a) factors,
but the statements of the parties and the PSI. Id. at 19. Notably, prior to sentencing
both parties had discussed the circumstances of the crimes, including Mr. Lora’s
illegal possession of a firearm and the involvement of Mr. Lora’s son. And the
district court noted that “the sentence imposed [ ] reflect[ed] [ ] offenses involved,
which are three different offenses, very different in nature and the defendant’s
criminal history.”
The record, in totality, makes clear that the district court believed that the
numerous occasions on which Mr. Lora was convicted of drug-related crimes, as
well as the severe circumstances of the present crimes, warranted a sentence above
the guidelines range. As the parties primarily focused on these issues during their
arguments at sentencing, it was reasonable for the district court to rely on them as
8
Case: 14-14728 Date Filed: 10/01/2015 Page: 9 of 13
its justification for an upward variance. Contrary to Mr. Lora’s argument, the law
does not require an ideal explanation. See Irey, 612 F.3d at 1186–87.
One final point merits discussion. Mr. Lora argues that the district court
improperly replied on his status as an alien to justify its upward variance.
Presumably, this argument is based on the government’s statement that Mr. Lora
had “no reason to be in the United States other than to commit crimes.” There is no
indication, however, that the district court relied on Mr. Lora’s status as an alien
when determining the appropriate sentence. And in any event, the government was
not implying that Mr. Lora deserved a harsher sentence because he is an alien;
rather, the government was attempting to illustrate that, based on his criminal
history and employment status, Mr. Lora had illegally reentered the country for the
purpose of engaging in additional criminal activity. The record does not support
Mr. Lora’s argument that the district court considered an improper factor in
determining his sentence.
In sum, the district court adequately explained and supported its reasons for
the upward variance, and its sentence was not procedurally unreasonable. The
district court did not abuse its discretion.
III
Mr. Lora also argues that his sentence was substantively unreasonable
because the sentence is inconsistent with sentences imposed on offenders
9
Case: 14-14728 Date Filed: 10/01/2015 Page: 10 of 13
convicted of similar crimes with similar guidelines ranges. He asserts that, of 154
similar offenders sentenced in 2011, 2012, and 2013, “three received a sentence in
excess of the high-end” of the guidelines range. He also cites two specific
examples of defendants convicted of similar crimes in this Circuit who received
sentences within the guidelines range. Mr. Lora thus argues that his 120-month
sentence creates an unwarranted sentencing disparity.
The government contends that we should not consider the sentencing
disparity data attached to Mr. Lora’s initial brief because it was not properly
presented at sentencing. It also argues that Mr. Lora is not similarly situated to the
defendants included in the data.
We review the substantive reasonableness of a sentence for abuse of
discretion. See United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.
2015). The party challenging the sentence bears the burden of proving it was
unreasonable. Id.
The district court must impose a sentence “sufficient, but not greater than
necessary, to comply with the purposes” listed in § 3553(a)(2), including the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future conduct. See § 3553(a). In determining a particular sentence,
the district court should also consider other factors, including “the need to avoid
10
Case: 14-14728 Date Filed: 10/01/2015 Page: 11 of 13
unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct.” Id. § 3553(a)(6).
A district court abuses its discretion and imposes a substantively
unreasonable sentence only when it “(1) fails to afford consideration to relevant
factors that were due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment in considering the
proper factors.” Rosales-Bruno, 789 F.3d at 1256 (quoting Irey, 612 F.3d at 1189)
(quotation marks omitted). The weight given to any specific factor is committed to
the “sound discretion” of the district court, and that court does not necessarily
commit reversible error simply because it attaches significant weight to a single §
3553(a) factor. See United States v. Willliams, 526 F.3d 1312, 1322 (11th Cir.
2008). We “may not presume that a sentence outside the guidelines is
unreasonable, and we must give ‘due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the variance.’” Irey, 612
F.3d at 1187 (quoting Gall, 552 U.S. at 51).
Mr. Lora has not demonstrated that the sentence is substantively
unreasonable. The district court primarily relied on Mr. Lora’s criminal history and
the circumstances surrounding the crime in imposing the upward variance. See
D.E. 75 at 18–19. The record supports the district court’s determination. Mr.
Lora’s criminal history, i.e., various convictions for drug possession and
11
Case: 14-14728 Date Filed: 10/01/2015 Page: 12 of 13
distribution, indicates that he has been involved in the drug trade for the majority
of his time in the United States. Mr. Lora acknowledged that he was indeed a drug
dealer, and his statements indicated that he was willing to continue engaging in the
drug trade. Although he said that he returned to the United States because of his
family, he also involved his son in his crimes, and his son was convicted of a
felony as a result. Considering Mr. Lora’s criminal history, the need for adequate
deterrence, and his likelihood of recidivism, an upward variance was not
unreasonable.
Neither the law nor the record supports Mr. Lora’s argument that the district
court’s sentence created an unwarranted sentencing disparity between defendants
similarly situated to him. He presents only evidence of offenders with similar
guidelines ranges and criminal history categories; there is no indication that these
offenders had similar characteristics or histories of recidivism. Even if there were a
disparity between similar offenders here, the weight to be given each § 3553(a)
factor is within the discretion of the district court, and there is no indication that
the district court gave other factors undue weight. Simply put, district courts do not
calculate criminal sentences by using computer software. Rather, they do what the
district court did in this case—consider the defendant’s criminal history, offense
level, and the § 3553(a) factors, holistically, to determine the appropriate sentence.
See United States v. Lozano, 490 F.3d 1317, 1324 (11th Cir. 2007) (“The district
12
Case: 14-14728 Date Filed: 10/01/2015 Page: 13 of 13
court may determine on a case-by-case basis the relative weight to give the
Guidelines range in light of the other section 3553(a) factors.”).
Giving the substantial deference we must accord the district court in its
consideration of the § 3553(a) factors, we conclude that Mr. Lora’s sentence of 120
months’ imprisonment is not substantively unreasonable.
IV
We affirm Mr. Lora’s sentence.
AFFIRMED.
13