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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15004
Non-Argument Calendar
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D.C. Docket No. 1:17-cr-20500-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACIO CRUZ-RODRIGUEZ,
a.k.a. Jose Mejia-Rodriguez,
a.k.a. Jose Cruz-Rodriguez,
a.k.a. Jose Cruz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 30, 2018)
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Before MARCUS, ROSENBAUM and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Horacio Cruz-Rodriguez appeals his 40-month
sentence for illegal reentry of a previously deported alien, in violation of 8 U.S.C.
§§ 1326(a) and (b)(1). On appeal, Cruz-Rodriguez argues that the district court
imposed a procedurally unreasonable sentence because it “anchor[ed]” Cruz-
Rodriguez’s sentence to his prior 37-month sentence for illegal reentry rather than
to his current advisory guidelines range of 8 to 14 months. After review, we find
no procedural error and affirm Cruz-Rodriguez’s sentence.
I. GENERAL PRINCIPLES
We review the reasonableness of a sentence under the deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). The party challenging the sentence has the burden to show it is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). In
reviewing the procedural reasonableness of a sentence, we consider whether the
district court committed any significant procedural error, such as failing to
calculate or improperly calculating the advisory guidelines range, treating the
guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) sentencing
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factors, selecting a sentence based on clearly erroneous facts, or failing to explain
adequately the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.1
Although the Sentencing Guidelines are now advisory after United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the district court must still calculate
correctly and consider the advisory guidelines range at sentencing. United States
v. Pugh, 515 F.3d 1179, 1190 (2008). A failure to do so results in a procedurally
unreasonable sentence. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.2
II. CRUZ-RODRIGUEZ’S SENTENCE
Here, the record refutes Cruz-Rodriguez’s claim that the district court
erroneously anchored his sentence to his prior illegal reentry sentence. At
sentencing, the district court began by noting that, according to the presentence
investigation report (“PSI”) (to which Cruz-Rodriguez did not object), the advisory
guidelines range was “8 to 14 months based on a total offense level of 10 and a
criminal history category of [II].”
The district court turned to the government’s motion for an upward variance.
The government’s motion sought a 60-month sentence, arguing that: (1) Cruz-
Rodriguez was previously removed from the United States five times; (2) Cruz-
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Cruz-Rodriguez does not argue that his sentence is substantively unreasonable.
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The parties disagree as to whether our review is for plain error or preserved error in light
of Cruz-Rodriguez’s general objection to his sentence as substantively and procedurally
unreasonable. We need not resolve this issue because Cruz-Rodriguez cannot prevail under
either standard of review.
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Rodriguez had a number of prior felony convictions that were not counted in his
criminal history score, including a 2007 conviction for illegal reentry; (3) although
Cruz-Rodriguez had received a 37-month sentence for his prior illegal reentry
offense, he was now “facing a guideline range of 8-14 months imprisonment”; and
(4) the government believed “such a short sentence will not deter the defendant
from coming back to the United States.”
The district court asked if there had been a change in the guidelines that
explained why Cruz-Rodriguez’s previous 37-month sentence had been so long.
The government explained that Cruz-Rodriguez’s current advisory guidelines
range was shorter because some of his prior convictions were now too old to be
counted toward his criminal history score.
Cruz-Rodriguez argued for a sentence within the advisory guidelines range,
stating, inter alia, that he had not been arrested for a ten-year period and that his
motivation for repeatedly returning to the United States was his fear for his safety
due to crime in Honduras. After hearing Cruz-Rodriguez’s mitigation arguments,
the district court stated that an upward variance was appropriate, noting that his
prior five removals were “a pretty aggravating circumstance.” The government
reviewed Cruz-Rodriguez’s criminal history in the United States and argued that a
60-month sentence would deter Cruz-Rodriguez from returning to the United
States.
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The district court ultimately imposed a 40-month sentence, stating that it had
considered the parties’ statements, the PSI, which contained the advisory
guidelines range, and the § 3553(a) factors. To explain its decision to vary
upward, the district court stated that: (1) Cruz-Rodriguez’s criminal record was not
very recent, partially due to a period of incarceration and removal; (2) although
Cruz-Rodriguez had not committed another crime except illegal reentry since he
last entered the United States in 2013, his criminal history showed that in the past
Cruz-Rodriguez, after being removed, had returned to the United States and
committed more crimes; (3) Cruz-Rodriguez needed to understand that he was not
welcome in the United States, despite the difficult situation he faced in Honduras;
and (4) because Cruz-Rodriguez needed to be deterred, a “sentence somewhat
longer than the last sentence [he] served [was] the appropriate sentence.” After
imposing the 40-month sentence, the district court stated, “I do want to note that
the sentence I imposed was only three months longer than the last sentence that
was imposed when the defendant illegally reentered.”
There is no merit to Cruz-Rodriguez’s contention that the district court
“displaced” the guidelines range with the prior 37-month sentence or “relegat[ed]
the guideline range to a meaningless afterthought.” It is clear from the sentencing
transcript that the district court began by considering the correctly calculated
advisory guidelines range of 8 to 14 months. The district court concluded, not
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unsurprisingly, that a sentence within that range would be inadequate to deter
Cruz-Rodriguez based on his history of repeatedly returning to the United States
after removal and the fact that Cruz-Rodriguez was undeterred by his last 37-
month sentence for illegal reentry. Both Cruz-Rodriguez’s prior criminal history
and the need for deterrence were proper factors for the district court to consider in
deciding whether, and to what extent, to vary from the advisory guidelines range.
See 18 U.S.C. § 3553(a)(1), (a)(2)(B). More particularly, there was nothing
improper in the district court’s considering the length of Cruz-Rodriguez’s prior
illegal reentry sentence, which did not deter him from reentering the United States,
in determining what length of sentence would adequately deter him in the future.
Citing Peugh v. United States, 569 U.S. 530, 544, 133 S. Ct. 2072, 2084
(2013), and Molina-Martinez v. United States, 578 U.S. ___, 136 S. Ct. 1338, 1346
(2016), Cruz-Rodriguez argues that the guidelines range is the “lodestone/lodestar”
at sentencing. We do not disagree with this uncontroversial, general proposition.
The guidelines range is both the sentencing court’s appropriate starting point and
an important sentencing factor and in the usual case will have a significant effect
on the ultimate sentence. See Molina-Martinez, 578 U.S. at ___, 136 S. Ct. at
1346. Nonetheless, as Booker tells us, the guidelines range is advisory, not
mandatory, and one of several sentencing factors the district court must weigh in
arriving at the appropriate sentence. Thus, the district court may vary from that
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advisory guidelines range based on other § 3553(a) factors when, in the court’s
discretion, it is appropriate to do so.
Here, the district court explicitly concluded that a guidelines sentence would
be inappropriate, explained its reasons for varying upward, and those reasons were
based on permissible factors and supported by the record.
In sum, we find no procedural error in the district court’s consideration of
the advisory guidelines range and weighing of the various § 3553(a) factors. Cruz-
Rodriguez has not shown that his 40-month sentence is procedurally unreasonable.
AFFIRMED.
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