[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11815 DECEMBER 23, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-80012-TP-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOAQUIN PINA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 23, 2005)
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Joaquin Pina appeals a 21-month sentence imposed by the district court upon
revocation of Pina’s supervised release under 18 U.S.C. § 3583. Pina’s sole claim
on appeal is that his sentence is unreasonable under United States v. Booker, 543
U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). We affirm.
In 1999, Pina pled guilty in the United States District Court for the Southern
District of New York to conspiracy to traffic forged securities and false
identification documents, in violation of 18 U.S.C. § 371. He received a sentence
of 27 months’ imprisonment and 3 years of supervised release. Pina’s term of
supervised release commenced on July 13, 2001, and he was removed from the
United States in October of the same year. In January of 2004, however, Pina was
found in Palm Beach, Florida, where he was in possession of cocaine. He
thereafter pled guilty in the United States District Court for the Southern District of
Florida to illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a)
and (b)(2) (“Count One”), and to possession with intent to distribute at least 500
grams of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (“Count
Two”). In October of 2004, the district court sentenced Pina to 60 months’
imprisonment on each Count, with the sentences to run concurrently.1 During that
same month, a federal probation officer in the Southern District of Florida filed a
petition for revocation of Pina’s supervised release that had commenced back in
1
The district court further sentenced Pina to 3 years of supervised release on Count One and
4 years of supervised release on Count Two. These terms were also to run concurrently.
2
July of 2001, on Pina’s conspiracy offense.2 Pina admitted that he had violated the
conditions of his supervised release by illegally reentering the United States and
committing a drug offense. He appeared before the district court for sentencing in
March of 2005.
At sentencing, the parties agreed that the applicable range under the United
States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.”) policy statements
was 15-21 months. The district court, noting that Pina “[b]asically came back and
did a drug deal after two previous federal convictions,”3 asked defense counsel
why a sentence at the top of the guidelines range, to be served consecutively to
Pina’s sentence on the illegal reentry and drug offenses, would not be appropriate.
Pina’s counsel argued that the facts of the case did not warrant such a sentence,
because: (1) Pina was 53 years old and had lived in the United States with his
common law wife and their children since 1980, and had reentered the country in
order to be with his family; (2) Pina had been one of several aliens on a boat
headed to the United States, and when the boat was intercepted by law enforcement
officers, a person on the boat tossed a kilo of cocaine at Pina, telling him to take it
because no one else wanted the kilo on them when they got caught; (3) Pina will
2
In June of 2004, the Southern District of New York transferred jurisdiction over Pina’s
supervised release to the Southern District of Florida.
3
It is uncontroverted that Pina had another prior federal conviction in addition to the
conspiracy conviction described above.
3
not return to the United States again because he does not want to risk the sentence
he would receive if he were caught; and (4) keeping Pina in prison only to deport
him again upon release is not a sensible use of Government funds. Pina’s counsel
also pointed out that the district judge who had sentenced Pina for the illegal
reentry and drug offenses had given the minimum possible sentence. For these
reasons, Pina’s counsel argued, Pina’s sentence for violating supervised release
should run concurrently with the sentence for Pina’s illegal reentry and drug
offenses. The Government disagreed, arguing that a sentence which ran
concurrently with the existing sentence on Pina’s illegal reentry and drug offenses
would effectively negate any punishment for Pina’s violation of supervised release.
The district court found that Pina had violated the conditions of his supervised
release, and that a sentence within the Guidelines range would be appropriate. The
court then revoked Pina’s supervised release and sentenced him to 21 months’
imprisonment, with the sentence to be served consecutively to the sentence
imposed on Pina’s illegal re-entry and drug offenses.
Under 18 U.S.C. § 3583(e), a district court may, upon finding that a
defendant has violated a condition of supervised release, revoke the term of
supervised release and impose a term of imprisonment after considering certain
4
factors set forth in § 3553(a).4 Prior to Booker, we reviewed a sentenced imposed
upon revocation of supervised release under the “plainly unreasonable” standard
set forth in 18 U.S.C. § 3742(e)(4). See United States v. Scroggins, 910 F.2d 768,
769 (11th Cir. 1990) (per curiam).5 In Booker, however, the Supreme Court
excised § 3742(e)(4) and replaced it with a reasonableness standard. See Booker,
125 S. Ct. at 764-66. In the wake of Booker, numerous circuits applying Booker’s
reasonableness standard to sentences imposed upon revocation of supervised
release have concluded that Booker’s reasonableness standard is essentially the
same as the “plainly unreasonable” standard of § 3742(e)(4). See United States v.
Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); United States v. Cotton, 399 F.3d
913, 916 (8th Cir. 2005); United States v. Fleming, 397 F.3d 95, 99 (2d Cir.
2005).6 We agree and review Pina’s sentence for reasonableness.
4
The factors set forth in § 3553(a) include: the nature and circumstances of the offense and
the history and characteristics of the defendant; the need for the sentence imposed to afford adequate
deterrence, protect the public from future crimes by the defendant, and provide the defendant with
neccessary education, training, or treatment; the applicable Guidelines range; certain policy
statements; and the need to avoid unwarranted sentence disparities and provide restitution to vicitms.
5
Although § 3742(e)(4) applied only to a sentence imposed for an offense for which there
was no applicable sentencing guideline, the provisions of the Guidelines addressing violations of
probation and supervised release are technically policy statements, not formal guidelines.
See U.S.S.G. ch. 7, pt. A.
6
Various panels of this circuit have also concluded as much, albeit in unpublished opinions.
See, e.g., United States v. Livingston, No. 04-16287 (11th Cir. July 22, 2005) (per curiam); United
States v. Powell, No. 04-15706 (11th Cir. June 28, 2005) (per curiam); United States v. Turner, No.
04-15161 (11th Cir. June 7, 2005) (per curiam).
5
Pina argues that his sentence is unreasonable because it will not help
reintegrate him into society. See Morgan v. Wainwright, 676 F.2d 476, 479 (11th
Cir. 1982) (“[F]urthering the reintegration of the probationer into society, and not
discovering and punishing his every transgression (i.e., a criminal prosecution) is
the primary function of the probation supervision process.”). The instant situation,
however, is one where Pina has admittedly violated the conditions of his
supervised release by committing additional federal crimes. Congress clearly
authorized additional imprisonment in these kinds of circumstances. See 18
U.S.C. § 3583(e)(3). Pina also asserts that his sentence is unreasonable because it
is, proportionally speaking, harsher than the sentence imposed for his illegal re-
entry and drug offenses. Pina cites no authority for this proposition, however, and
it ultimately compares apples and oranges, for determining a sentence to be
imposed upon revocation of supervised release involves considerations distinct
from those involved in determining the sentence to be imposed for the criminal
offense that effected the violation of supervised release. See, e.g., U.S.S.G. ch. 7,
pt. B, introductory cmt. (“Where a defendant is convicted of a criminal charge that
also is a basis of the violation [of supervised release], these policy statements do
not purport to provide the appropriate sanction for the criminal charge itself.”).
Finally, we are unpersuaded by Pina’s reurging of his arguments below for a
6
concurrent sentence. As a matter of policy, the Guidelines recommend that “the
sanction imposed upon revocation . . . be served consecutively to any other term of
imprisonment imposed for any criminal conduct that is the basis of the revocation.”
Id. Pina arguments do not establish that it was unreasonable to apply this policy in
his case.
In short, it is uncontroverted that the district court correctly calculated the
sentencing range recommended in the applicable Guidelines policy statements, and
then sentenced Pina within that range. Having considered the record and the
arguments of the parties, we are satisfied that the district court considered the
factors set forth in § 3553(a) when imposing sentence, and that the sentence is
reasonable.7 Accordingly, we affirm the sentence imposed by the district court.
AFFIRMED.
7
We note that “nothing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
7