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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14720
Non-Argument Calendar
________________________
D.C. Docket No. 4:08-cr-10070-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GUTIERREZ,
Defendant-Appellant.
________________________
No. 15-14791
Non-Argument Calendar
________________________
D.C. Docket No. 4:08-cr-10068-KMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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JUAN GUTIERREZ,
Defendant -Appellant.
________________________
No. 15-15533
Non-Argument Calendar
________________________
D.C. Docket No. 4:07-cr-10049-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO GUTIERREZ ARENCEBIA,
a.k.a. Juan Antonio Arencebia,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
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(December 16, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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In this consolidated appeal, Defendant Juan Gutierrez Arencebia appeals his
total 72-month sentence, imposed upon revocation of supervised release in three
separate cases. This is the second time Defendant asks us to review his sentence.
The first time this appeal was before us, we vacated Defendant’s 72-month
sentence, concluding that the district court had committed procedural error in
sentencing Defendant by considering conduct involving alien smuggling that had
not been proved by a preponderance of the evidence.
On remand, the district court once again sentenced Defendant to 72 months’
imprisonment. Defendant now appeals, arguing that his sentence is procedurally
and substantively unreasonable. After careful review, we affirm.
I. BACKGROUND
Defendant, a Cuban national, is a repeat violator of federal immigration
laws. In our previous decision, we provided a detailed description of the multiple
human-smuggling attempts, arrests, deportation orders, and prosecutions that lay
the foundation for this appeal. See United States v. Arencebia, 613 Fed. App’x
882, 883–888 (11th Cir. 2015) (unpublished). We therefore provide only a brief
synopsis of the facts and procedural history necessary for resolution of the present
appeal.
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A. Defendant’s Underlying Convictions
In June 2008, Defendant was sentenced to 24 months’ imprisonment
followed by three years of supervised release after pleading guilty to conspiracy to
induce aliens to enter the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I), and illegal reentry, in violation of 8 U.S.C. § 1326(a).
Later, in February 2009, Defendant pleaded guilty in two separate cases to
conspiracy to induce aliens to enter the United States. In one of the cases, he was
sentenced to 18 months’ imprisonment to run consecutively to his 24-month
sentence imposed in June 2008. As to the other case, he was sentenced to 30
months’ imprisonment to run concurrently with his other sentences. He received
three years of probation in each case.
B. Supervised Release Violation and First Revocation Hearing
Defendant began his term of supervised release in all three cases in August
2011. Approximately two years later and before the terms of supervised release
expired, the probation officer filed separate, but identical, petitions seeking
revocation of Defendant’s supervised release in each of the three cases. According
to the petitions, Defendant was arrested on October 23, 2013, for committing the
offenses of alien smuggling and illegal reentry. Defendant had thus violated
mandatory conditions of his supervised release by: (1) committing two new
criminal offenses; and (2) leaving the judicial district without seeking permission
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from the probation officer. Defendant admitted to leaving the judicial district
without permission, but denied committing the offenses of alien smuggling and
illegal reentry. Given Defendant’s admission, the Government dismissed the
violations related to alien smuggling and illegal reentry.
In anticipation of the revocation hearing, the probation officer prepared three
nearly identical written reports and recommendations. The probation officer
indicated that Defendant’s underlying convictions for conspiracy to induce aliens
to enter the United States were Class C felonies, and therefore the maximum term
of imprisonment that could be imposed was 24 months’ imprisonment for each
violation. See 18 U.S.C. § 3583(e)(3). Because Defendant’s supervised release
violation was a Grade C violation and Defendant’s criminal history category was I,
Defendant’s guideline range for the first case was three to nine months’
imprisonment. For the second case, Defendant’s guideline range was four to ten
months’ imprisonment. For the third case, Defendant’s criminal history category
was III, which resulted in a guideline range of 5 to 11 months’ imprisonment.
At the revocation hearing, Defendant admitted that he left the judicial
district on October 23, 2013, and had traveled to international waters without
permission from his probation officer. He also admitted that he was subsequently
arrested for alien smuggling and illegal reentry. Based on his admitted departure
from the judicial district without permission, the district court adjudicated him
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guilty of violating the terms of his supervised release in all three cases. The
district court reiterated the probation officer’s guidelines calculations in each of the
three cases. Concluding that Defendant had shown “utter contempt and disrespect
for the laws of the United States” and “appears to be unable or unwilling to
conform his behavior to the requirements of the law . . . that this kind of smuggling
activity is prohibited,” the district court sentenced Defendant to a total of 72
months’ imprisonment, consisting of 24 months’ imprisonment in each case, to run
consecutively to one another.
C. First Appeal
On appeal, we concluded that the district court committed procedural error
by relying on Defendant’s conduct involving alien smuggling, which had not been
sufficiently proven by a preponderance of the evidence. Arencebia, 613 Fed.
App’x at 891–92. We explained that to the extent the district court relied on an
affidavit that described Defendant’s arrest for alien smuggling, the district court
had not provided Defendant an opportunity to contest the reliability of that
evidence. Id. at 892. Accordingly, we vacated Defendant’s sentence and
remanded for a new sentencing hearing. Id. We stated that on remand, “the
district court shall allow Defendant the opportunity to contest any information that
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the court is considering as a sentencing factor and at which the court shall consider
only such conduct as is proved by a preponderance of reliable evidence.” 1 Id.
D. Resentencing Hearing for Violations of Supervised Release
At the outset of the resentencing hearing, the parties agreed that the
guidelines calculations remained unchanged. To meet its burden of establishing
that Defendant’s October 2013 arrest involved alien smuggling, the Government
called Lieutenant Morgan Roy, a pilot with the U.S. Coast Guard, to testify.
Lieutenant Roy stated that while on duty on October 23, 2013, she was directed to
relieve an aircraft that was overhead a vessel in the body of water between the
Florida Keys and Cuba. When she arrived on scene, she observed that the vessel
was overloaded with people. The vessel appeared to be having engine trouble and
eventually stopped at an abandoned island within the territory of the Bahamas,
where all but two people got off of the boat. The vessel then headed north,
eventually stopped, and the two remaining people on board took out fishing gear.
The Government also called Pablo Milian, a special agent with the
Department of Homeland Security. Agent Milian interviewed Defendant
following his arrest in October 2013, after the Coast Guard interdicted his vessel
1
In the meantime, while Defendant’s first appeal was pending in our Court, a jury convicted
him of attempted illegal reentry, in violation of § 1326(a), for the conduct stemming from his
October 2013 arrest. Id. at 888. Defendant was sentenced to 92 months’ imprisonment to be
served consecutively to the sentences imposed for the violations of supervised release. Id. We
later affirmed Defendant’s conviction and sentence. United States v. Gutierrez, 626 Fed. App’x
923, 926 (11th Cir. 2015) (unpublished).
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off of the Florida Keys. At first, Defendant told Agent Milian that he had
borrowed a boat from a friend for a fishing trip, but they encountered engine
trouble and headed back to the United States. When Agent Milian showed
Defendant a photograph of Defendant’s vessel filled with people on it, Defendant
changed his story. Defendant told Agent Milian that he encountered a stranded
boat and he had picked up those passengers and dropped them off on an island.
Agent Milian further testified that this was not the first time he had
interviewed Defendant, as he had first encountered Defendant in 2005 under
similar circumstances. In 2005, the Coast Guard interdicted a vessel that
Defendant was the master of, and which contained a large number of
undocumented Cuban nationals. When Agent Milian interviewed Defendant at
that time, Defendant told him the same story—he was fishing off of the Florida
Keys when he discovered a group of stranded people and took them on board his
vessel. Agent Milian testified that the investigation in 2005 resulted in one of the
alien-smuggling convictions underlying the current supervised release revocation
proceeding.
The district court confirmed with Defendant that the problem with the prior
sentencing hearing—the use of unreliable evidence to support the determination
that Defendant had engaged in alien smuggling—was no longer an issue given the
evidence presented by the Government during the resentencing hearing.
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Nevertheless, Defendant maintained that the evidence was not sufficient to
demonstrate that he had engaged in alien smuggling. Based on the testimony of
the two witnesses, the district court determined that the Government had
demonstrated by a preponderance of the evidence that Defendant attempted illegal
reentry and attempted to commit alien smuggling.
Defendant argued that a sentence significantly lower than the 72-month
sentence imposed at the prior sentencing hearing was appropriate, especially given
the applicable guideline range and the 92-month sentence Defendant received for
his most recent attempted illegal reentry conviction. The district court stated that
Defendant “shows utter disrespect for the law, and the only thing that’s going to
stop him from continuing to engage in alien-smuggling activity and the danger and
the risk to the lives of other people is incarceration.” After considering the parties’
arguments, the district court revoked Defendant’s supervised release and sentenced
him to 24 months’ imprisonment in each of the three cases to run consecutively,
resulting in a total sentence of 72 months’ imprisonment. This appeal followed.
II. DISCUSSION
Using a two-step process, we review the reasonableness of a district court’s
sentence for an abuse of discretion. United States v. Cubero, 754 F.3d 888, 892
(11th Cir. 2014). We first look to whether the district court committed any
significant procedural error, such as miscalculating the advisory guideline range,
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treating the Sentencing Guidelines as mandatory, failing to consider the 18 U.S.C.
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence. Id. Then we examine whether the
sentence is substantively reasonable in light of the totality of the circumstances.
Id. The party challenging the sentence bears the burden of showing that it is
unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).
When revoking a defendant’s term of supervised release, 18 U.S.C.
§ 3583(e) instructs courts to consider certain 18 U.S.C. § 3553(a) factors in
determining an appropriate sentence. See 18 U.S.C. § 3583(e)(3). In part,
sentencing courts must consider (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant,” (2) the need to adequately
deter criminal conduct, (3) the need “to protect the public from further crimes of
the defendant,” (4) the applicable sentencing range, and (5) any pertinent policy
statements of the Sentencing Commission. See 18 U.S.C. § 3583(e), 3553(a)(1),
(a)(2)(B)-(C), (a)(4)-(5).
A. Procedural Reasonableness
Defendant argues that the district court committed procedural error by
basing his sentence on the alien-smuggling conduct, rather than on his actual
supervised release violation of leaving the judicial district without permission.
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Under federal law, “[n]o 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.” 18 U.S.C. § 3661. The Guidelines
also note that the information a court may consider in formulating a sentence is
expansive and includes evidence that would not be admissible at trial, so long as
the information has a “sufficient indicia of reliability” to support its accuracy.
U.S.S.G. § 6A1.3(a). In other words, the relevant facts at sentencing must be
established by a preponderance of the evidence. See United States v. Watts, 519
U.S. 148, 156 (1997).
Here, Defendant’s sentence is not procedurally unreasonable because the
district court was permitted to consider Defendant’s alien-smuggling conduct. In
determining the proper sentence to impose upon revocation of supervised release,
the district court is not limited solely to the information about the admitted
violation. See 18 U.S.C. § 3661. Instead, the information the court can consider is
vast, so long as it is supported by a preponderance of the evidence. See Watts, 519
U.S. at 156. After hearing testimony from two Government witnesses, the district
court concluded that the Government established by a preponderance of the
evidence that Defendant engaged in alien smuggling. Moreover, Defendant has
abandoned any argument that this determination was not supported by a
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preponderance of the evidence, as he does not raise that argument on appeal. See
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (explaining
that issues not raised on appeal are deemed abandoned). But even if Defendant
had not abandoned this argument, any such argument would have been meritless,
as the testimony of Lieutenant Roy and Agent Milian was sufficient to show by a
preponderance of the evidence that Defendant engaged in alien smuggling. See
Watts, 519 U.S. at 156.
Furthermore, we are not persuaded by Defendant’s argument that the district
court could not consider his alien-smuggling conduct, as we indicated in
Defendant’s first appeal that the district court could consider the alien-smuggling
conduct in fashioning his sentence, so long as that conduct was established by a
preponderance of the evidence. See Arencebia, 613 Fed. App’x at 891–92. At the
resentencing hearing, the district court provided Defendant the opportunity to
cross-examine the Government’s witnesses, heard argument from Defendant, and
then found the alien-smuggling conduct was proved by a preponderance of the
evidence. Thus, our previous concerns regarding the procedural reasonableness of
Defendant’s sentence are no longer at issue.
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B. Substantive Reasonableness
Defendant next argues that his sentence is substantively unreasonable
because the district court varied upward to the statutory maximum sentence based
on Defendant’s conduct involving alien smuggling.
We disagree. Although Defendant’s 24-month sentences reflect upward
variances from the respective guideline ranges for each supervised release
violation, his sentences to the statutory maximum, were not “outside the range of
reasonable sentences dictated by the facts of the case.” See United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
Indeed, in determining that an upward variance was necessary as to each
violation, the district court considered several of the relevant sentencing factors,
including Defendant’s history and characteristics, the nature and circumstances of
the offense, and the need for deterrence. See 18 U.S.C. §§ 3583(e), 3553(a)(1),
(a)(2)(B)-(C), (a)(4)-(5); see also Irey, 612 F.3d at 1186–87 (explaining that when
a district court imposes a sentence outside of the applicable guideline range, the
justification must be “‘sufficiently compelling to support the degree of the
variance’”). In particular, Defendant had three prior convictions for alien
smuggling during the approximately ten years he had been in the United States.
Further, the testimony presented at sentencing was sufficient to establish by a
preponderance of the evidence that Defendant was again attempting to smuggle
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aliens when he was caught outside the judicial district in October 2013. These
repeated instances of alien smuggling, including the 2013 instance that occurred
after Defendant had already served terms of imprisonment for three prior alien-
smuggling convictions, suggest that a lengthier sentence was needed to adequately
deter Defendant. See 18 U.S.C. § 3553(a)(2)(B). In addition, Defendant exhibited
a callous disregard for human life, abandoning the aliens he had smuggled on an
uninhabitable island, with limited food and water.
Although Defendant argues that the district court relied too heavily on the
alien-smuggling conduct surrounding his supervised release violation, instead of
focusing on the actual admitted violation of leaving the judicial district without
permission, it was entirely within the district court’s discretion to do so. See
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court. . . .” (quotations omitted)). And to the extent Defendant still
maintains that the district court was not permitted to consider the alien-smuggling
conduct, we have already explained that the district court was permitted to consider
any information relevant to sentencing, so long as it was proved by a
preponderance of the evidence. See 18 U.S.C. § 3661; Watts, 519 U.S. at 156.
Finally, Defendant relies on U.S.S.G. § 5G1.2—the provision governing
sentencing on multiple counts of conviction—to argue that his consecutive
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sentences are unreasonable. This argument is without merit, as sentences imposed
upon revocation of supervised release are governed by Chapter 7 of the Sentencing
Guidelines, not § 5G1.2. See U.S.S.G. § 5G1.2; U.S.S.G. Chap. 7; See United
States v. Quinones, 136 F.3d 1293, 1295 (11th Cir. 1998) (concluding that § 5G1.2
did not limit the district court’s authority to impose consecutive terms of
imprisonment upon revocation of supervised release, as the policy statements in
Chapter 7 governed revocation sentences).
Accordingly, Defendant has not shown that the district court abused its
discretion by imposing a total sentence of 72 months’ imprisonment.
AFFIRMED.
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