[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11824 DECEMBER 9, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 01-10055-CR-JCP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR CABRERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 9, 2005)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Cesar Cabrera appeals his 135-month sentence for various drug convictions.
He argues that the trial court erred when it failed to consider his injuries from a
post-arrest motorcycle accident as a mitigating factor and thereby imposed an
unreasonable sentence. We AFFIRM.
I. BACKGROUND
Cabrera, in concert with three other men, smuggled 350 kilograms of
cocaine from Bimini, Bahamas, into Key Largo, Florida. He admitted to
investigators that he helped transfer the cocaine onto his boat, concealed the
cocaine in a secret compartment, and piloted the boat to Florida. He reported that
he was to receive 20 kilograms of the 350 as payment. Cabrera provided a
statement apologizing and taking full responsibility for his actions.
In March 2002, approximately seven months after he was arrested, Cabrera
was involved in a motorcycle accident. He suffered head trauma, including brain
contusions and brain swelling, and was in a coma for twelve days. He was
subsequently treated for slurred speech, headaches, difficulty hearing in his left ear,
memory loss, fluid on his brain, problems with his gait, and numbness to his
extremities. In July 2002, Cabrera was examined by a doctor who saw him again
in April and September 2003. The doctor found that Cabrera was at that time
incompetent to stand trial but that his condition would likely improve. As a result,
the district court repeatedly continued Cabrera’s case pending competency.
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Eventually, the doctor changed his opinion and concluded that it was not likely that
Cabrera would recover competency.
The government contested this finding and, in December 2003, Cabrera was
ordered to undergo four months of neuropsychological treatment at a federal
facility. Accordingly, Cabrera was admitted to the Mental Health Department,
Federal Medical Center (“FMC”) at Butner, North Carolina. While there, the FMC
physicians diagnosed him with a mood disorder with depressive features and a
cognitive disorder, both as a result of his closed head injury. He had average
cognitive functioning, with weaknesses in attention and concentration, mental
processing speed, and fine motor skills. However, the FMC physicians concluded
that most areas of functioning were probably consistent with Cabrera’s pre-injury
levels and that Cabrera was therefore competent to stand trial. Cabrera did not
contest their findings.
In October 2004, Cabrera pled guilty to (1) conspiracy to possess with intent
to distribute cocaine, 21 U.S.C. § 846, (2) conspiracy to import cocaine, 21 U.S.C.
§ 963, (3) possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and
(4) knowingly and intentionally importing cocaine, 21 U.S.C. § 952(a). The
probation officer assigned Cabrera a base offense level of 38, based on 350
kilograms of cocaine. She reduced it by two levels for specific offense
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characteristics, resulting in an adjusted offense level of 36. She further reduced it
by another two levels for acceptance of responsibility, and an additional one level
for assisting the authorities in the investigation for a total offense level of 33.
Since Cabrera had no criminal history points and a criminal history category of I,
the probation officer calculated a guideline imprisonment range of 135 to 168
months.
Cabrera’s first objection to the PSI was that the probation officer should
have used the 2000 Sentencing Guidelines manual instead of the 2004 manual
because the 2000 manual was more generous as to downward departures. This
objection was not addressed in any subsequent filing, at the sentencing hearing, nor
on appeal with our court. Cabrera’s second objection was to the probation officer’s
failure to recommend a downward departure under U.S.S.G. §§ 5H1.1, 5H1.4, and
5K2.0 in recognition of Cabrera’s age and frail health. Cabrera filed his objections
on 27 December 2004, two and a half weeks before the United States Supreme
Court issued its opinion in United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005), which held that the Sentencing Guidelines were advisory.
Sentencing took place on 14 March 2005, roughly two months after Booker
was decided. Cabrera, through counsel, asked the court to “fashion[] the
appropriate sentence.” R5 at 6, 40. He argued that he was no longer the same
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person that had committed the underlying crime and that he was a “prime example
as to why the courts should have discretion.” Id. at 38-39. He further contended
that his injuries from his motorcycle accident left him in an “extraordinary
situation” that changed his “quality of life” and justified the imposition of “a
reasonable sentence.” Id. at 39.
Cabrera’s doctor testified at the hearing regarding his post-accident health.
The doctor testified, in pertinent part, that Cabrera has “an organically based
personality condition . . . [presenting] difficulties with language based critical
thinking . . . [and] balance and vestibular problems.” R5 at 29. He further
explained that:
[T]his is as good as Mr. Cabrera is going to get or as good as he’s
going to be. He is going to have continuing problems with reasoning
and judgment, concentration, [and] attention . . . . Since he does have
this brain atrophy, his life expectancy levels drop . . . . [I]t’s more
likely that [he] will develop Alzheimer’s disease or one of its variants
or will become confused at an earlier age than the general population.
Id. at 27-28. On cross-examination the doctor admitted that no testing data existed
that would allow him to compare Cabrera’s current condition to his condition prior
to the accident. He also confirmed that Cabrera could complete day-to-day
functions, such as dressing and feeding himself. Further, he admitted that Cabrera
would more likely take his medication in a monitored setting.
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After the parties had concluded their arguments the district court judge
adopted the findings of the Presentence Investigation Report and noted that the
Sentencing Guidelines range was 135 to 168 months. The judge then stated:
I have also considered the other factors. I think the advisory
guidelines do provide a just and reasonable range in this case. While
Mr. [Cabrera] has suffered a bad accident and has been in some ways
dealt probably an unfair blow in terms of life, I don’t see how I can,
how that impacts the sentence.
I don’t think I am in a position to try to, I guess, factor in those
things to try to make up for the fact that he was hurt. That is not
something I can really do as a sentencing factor.
I think the Bureau of Prisons does have facilities that are
adequate to deal with his medical situation. Quality of life, you know,
there’s no way you can measure that and try to factor that into a
sentencing regime. That one person is able to enjoy life more than
another seems to be an impossible kind of thing to judge. And so I
don’t believe that these factors, although they are terribly important to
Mr. [Cabrera], can impact the sentence.
R5 at 42. The judge proceeded to discuss other elements of the sentence, and later
allowed Cabrera’s counsel to “renew [his] objection that the guideline sentence in
this case would not be reasonable.” Id. at 44. Ultimately the judge sentenced
Cabrera to 135 months of imprisonment at a facility that could meet his medical
requirements, three years of supervised release, and a $400 special assessment.
On appeal, Cabrera argues that the district court, in rejecting his requests for
a more lenient sentence on the basis of head injuries sustained in a post-arrest
motorcycle accident, ignored the dictates of 18 U.S.C. § 3553(a)(1) by failing to
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consider the history and characteristics of the defendant. Thus, he argues that a
reasonable sentence would have taken his injuries into account and would therefore
fall below the advisory Sentencing Guidelines range.1
II. DISCUSSION
We “review sentencing decisions for unreasonableness.” Booker, 543 U.S.
at ___, 125 S. Ct. at 767; see United States v. Winingear, 422 F.3d 1241, 1245
(11th Cir. 2005) (holding that only the final sentence is reviewed, not the
“individual decision[s] made during the sentencing process”). The reasonableness
analysis “require[s] us to determine whether the sentence imposed by the district
court was reasonable in the context of the factors outlined in [18 U.S.C. §
3553(a)].” Id. at 1246. Relevant section 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) [what is required for a sentence sufficient, but not greater than
necessary, to comply with] the need for the sentence imposed--
1
In his “Summary of the Argument” on appeal, Cabrera states that “[t]he trial court failed
to consider factors other than the guideline range therefore making its adherence to the guideline
range a mandatory sentencing scheme in violation of the recent dictates of Booker.” Appellant’s
Br. at 9. However, the body of Cabrera’s argument focuses entirely on the reasonableness of the
sentence post-Booker. Accordingly, Cabrera has failed to raise the issue on appeal. United States
v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue
on appeal must plainly and prominently so indicate. Otherwise, the issue–even if properly preserved
at trial–will be considered abandoned.”) (citing Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1573 n.6 (11th Cir. 1989) (issue abandoned where only referenced in Statement of the Case)).
Similarly, while Cabrera mentions the issue of a downward departure throughout his brief on
appeal, it is only in reference to arguments made before the district court. While Cabrera may have
argued for a departure below, on appeal he has failed to raise the argument, and it is therefore
abandoned. Id.
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(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
...
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.
18 U.S.C. § 3553(a). In considering these factors the district court need not “state
on the record that it has explicitly considered each of [the § 3553(a) factors] . . . or
to discuss each of [them].” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005); see also id. (“Further, the district court explicitly acknowledged that it had
considered [the appellant’s] arguments at sentencing and that it had considered the
factors set forth in § 3553(a). This statement alone is sufficient in post-Booker
sentences.” (emphasis omitted)).
The district court in this case correctly calculated the Sentencing Guidelines
range and then applied a sentence at the bottom of that range. In so doing it stated
that it had “considered the other factors” and that it thought the advisory
Sentencing Guidelines provided “a just and reasonable range in this case.” R5 at
42. Further, it specifically noted that it believed “the Bureau of Prisons . . . [has]
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facilities that are adequate to deal with his medical situation.” Id. Thus, Cabrera’s
claim that the district court erred is without merit. He has not met his burden of
showing that the court failed to consider the factors relevant to the selection of an
appropriate sentence or that the sentence imposed was unreasonable, especially in
light of the serious nature of his criminal convictions.
III. CONCLUSION
Cabrera appeals his 135-month sentence for various drug convictions. He
argues that the trial court erred when it failed to consider his injuries from a post-
arrest motorcycle accident as a mitigating factor and imposed an unreasonable
sentence. We conclude that the district court considered the relevant factors under
18 U.S.C. 3553(a) and imposed a reasonable sentence which fell within the
advisory Sentencing Guidelines. Accordingly, the sentence imposed by the district
court is AFFIRMED.
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