[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12717 DEC 10, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 2:10-cr-14018-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
RICHARD NOEL QUEZADA,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 10, 2010)
Before TJOFLAT, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Appellant Richard Noel Quezada pled guilty to two counts of a five-count
indictment charging him with bringing five aliens into the United States in
violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and the district court sentenced him to
concurrent prison terms of 84 months. He now appeals his sentences, arguing that
his sentence are both procedurally and substantively unreasonable. Appellant
contends that the sentences are procedurally unreasonable because the district
court improperly considered his prior arrests1 and failed to provide a “more
significant justification” for its upward variance from the prescribed Guidelines
sentencing range. Appellant contends that his sentences are substantively
unreasonable because (1) the district court overemphasized his criminal history
without giving due weight to the “nature and circumstances of the offense,”
thereby creating a “substantial disparity” between his sentences and the those
imposed in typical alien-smuggling cases; (2) the district court should not have
considered specific deterrence and incapacitation as sentencing objectives given
that this was appellant’s first offense involving the smuggling of aliens; and (3)
U.S.S.G. § 2L1.1, § 4A1.3, and the Sentencing Commission’s relevant policy
statements. all counseled against an upward variance.
Our “substantive review of sentences is deferential” and “only look[s] to see
if the district court abused its discretion by committing a clear error in judgment.”
United States v. Irey, 612 F.3d 1160, 1165 (11th Cir. 2010) (en banc). Review for
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Appellant’s prior arrests did not result in the filing of criminal charges against him.
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abuse of discretion applies to all sentences, even variances outside the Guidelines
sentencing range. Id. at 1186 (citing Gall v. United States, 552 U.S. 38, 46, 128
S.Ct. 586, 594, 169 L.Ed.2d 445 (2007)). The party who challenges a sentence,
here the defendant, “bears the burden of establishing that the sentence is
unreasonable in light of both the record and the factors in [18 U.S.C. §]
section 3553(a).” United States v. Tate, 586 F.3d 936, 947 (11th Cir. 2009)
(alterations and citation removed).
A sentence may be procedurally or substantively unreasonable. Gall, 552
U.S. at 51, 128 S.Ct. at 597. A sentence may be procedurally unreasonable if the
district court (1) improperly calculates the guideline range, (2) treats the
Guidelines as mandatory, (3) fails to consider the appropriate § 3553(a) factors,
(4) selects a sentence based on clearly erroneous facts, or (5) fails to adequately
explain the chosen sentence, including an explanation for any deviation from the
guideline range. Id. In reviewing the substantive reasonableness of a sentence,
we consider “the totality of the circumstances and . . . whether the sentence
achieves the sentencing purposes stated in § 3553(a).” United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir. 2009). A sentence may be substantively
unreasonable where a district court “unjustifiably relied on any one § 3553(a)
factor, failed to consider pertinent § 3553(a) factors, selected the sentence
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arbitrarily, or based the sentence on impermissible factors.” Id. Nevertheless, the
district court “is permitted to attach great weight to one factor over others.”
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (citation and internal
quotations omitted). Although the district court must provide “sufficiently
compelling” justifications to support a sentence that varies from the Guidelines
sentencing range, we will not presume that a sentence outside the range is
unreasonable. United States v. Mateos, No. 08-17178, slip op. 127, 143 (11th Cir.
Oct. 19, 2010) (quoting Gall, 552 U.S. at 50, 128 S.Ct. at 597).
Finally, although “the district court is required ‘to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct . . . ,’” United States v. Spoerke, 568 F.3d 1236, 1252
(11th Cir. 2009) (quoting 18 U.S.C. § 3553(a)(6)), “[a] well-founded claim of
disparity . . . assumes that apples are being compared to apples.” United States v.
Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009) (citation omitted).
Appellant’s sentences are procedurally reasonable because the district court
properly calculated the Guidelines sentencing range, treated the Guidelines as
advisory, considered the appropriate § 3553(a) factors, adequately explained its
reasons for the sentences, and did not err in considering appellant’s prior arrests.
Appellant’s sentences are substantively reasonable because district court properly
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emphasized the § 3553(a) factors of “the history and characteristics of the
defendant[,]” the need for the sentence “to promote respect for the law[,]” and the
need for the sentence “to afford adequate deterrence to criminal conduct[.]”
Furthermore, Quezada’s sentence did not create an unwarranted disparity among
similarly-situated defendants, and the district court did not depart upward pursuant
to the Guidelines, but varied upwards pursuant to Ԥ 3553(a).
AFFIRMED.
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