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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14442
Non-Argument Calendar
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D.C. Docket No. 1:99-cr-00866-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO SUAREZ,
a.k.a. Wilson Rosario,
a.k.a. Andre Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 23, 2019)
Before MARCUS, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Francisco Suarez, proceeding pro se, appeals the district court’s denial of his
motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
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Amendment 782 to the Sentencing Guidelines. On appeal, Suarez argues that the
district court’s analysis was “technically procedurally incomplete” because it (1) did
not discuss public safety considerations, (2) relied on his leadership role in the
offense, (3) applied an incorrect legal standard in its sentencing disparity analysis,
and (4) did not mention the rule of lenity. After thorough review, we affirm.
We review the district court’s decision of whether to grant a sentence
reduction under § 3582(c)(2) for abuse of discretion. United States v. Smith, 568
F.3d 923, 926 (11th Cir. 2009). A district court may abuse its discretion by failing
to apply the proper legal standard or by failing to follow proper procedures. United
States v. Jules, 595 F.3d 1239, 1241-42 (11th Cir. 2010).
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that the Sentencing
Commission later lowered. 18 U.S.C. § 3582(c)(2). Any sentence reduction,
however, must be consistent with the Sentencing Commission’s policy statements.
Id. When the district court considers a § 3582(c)(2) motion, it must first recalculate
the guideline range under the amended guidelines. United States v. Bravo, 203 F.3d
778, 780 (11th Cir. 2000). Then, the court must decide whether to exercise its
discretion to impose the newly calculated sentence under the amended guidelines or
retain the original sentence. Id. at 781. In making that decision, the court must
consider the § 3553(a) factors and the nature and severity of danger to any person
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posed by a sentence reduction. Smith, 568 F.3d at 927. The court also may consider
the defendant’s post-sentencing conduct. Id.
The § 3553(a) sentencing factors include: (1) the nature and circumstances of
the offense; (2) the history and characteristics of the defendant; (3) the need for the
sentence “to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment”; (4) the need for adequate deterrence; (5) the need
to protect the public from further crimes; (6) the guideline range; (7) any pertinent
policy statement from the Sentencing Commission, and (8) “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)(1), (a)(2), (a)(4)(A),
(a)(5), (a)(6). The court can show that it considered the § 3553(a) factors by
identifying factors weighing against a sentence reduction, even if it does not make
particular findings for each factor. See United States v. Brown, 104 F.3d 1254,
1255-56 (11th Cir. 1997). The district court has discretion to determine how much
weight to give a specific § 3553(a) factor. United States v. Alvarado, 808 F.3d 474,
496 (11th Cir. 2015).
The district court is not required to state how each factor applies to the
defendant’s case if the record shows that it considered the pertinent factors. Smith,
568 F.3d at 927. Similarly, “a district court commits no reversible error by failing
to articulate specifically the applicability -- if any -- of each of the section 3553(a)
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factors, as long as the record demonstrates that the pertinent factors were taken into
account by the district court.” United States v. Eggersdorf, 126 F.3d 1318, 1322
(11th Cir. 1997). In Eggersdorf, the district court’s order declining to resentence
Eggersdorf was short, but said that it had reviewed the relevant motions and the
record, and was otherwise duly advised. Id. at 1322. We held that the court gave
sufficient reasons for its order and that the record demonstrated that it had considered
the pertinent sentencing factors, particularly since the same district court judge
sentenced the defendant and later declined to reduce his sentence. Id. at 1322-23.
The need to avoid unwarranted sentencing disparities can also mean “the need
to avoid unwarranted similarities among other co-conspirators who were not
similarly situated.” Gall v. United States, 552 U.S. 38, 54-55 (2007). In Gall, the
Supreme Court held that a defendant’s sentence was reasonable where the district
court gave him a less severe sentence than his three codefendants because he
voluntarily withdrew from the conspiracy and his codefendants did not. Id. at 55-
56. It noted that the district court gave specific attention to the issue of disparity by
inquiring about the sentences already imposed by a different judge on two of the
defendant’s codefendants. Id. at 54.
“The rule of lenity requires ambiguous criminal laws to be interpreted in favor
of the defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514
(2008). However, “[t]he simple existence of some statutory ambiguity . . . is not
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sufficient to warrant application of that rule, for most statutes are ambiguous to some
degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998). The rule of lenity
applies only where, “after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute such that the Court must
simply guess as to what Congress intended.” Barber v. Thomas, 560 U.S. 474, 488
(2010) (citations and quotation omitted). Where “the Sentencing Commission’s
intent is clear, we need not address the rule of lenity” concerning a sentencing
guideline. United States v. Wright, 607 F.3d 708, 713 (11th Cir. 2010).
Here, the district court did not abuse its discretion by denying Suarez’s §
3582(c)(2) motion because, after determining that Suarez was eligible for a sentence
reduction, it adequately considered the § 3553(a) factors in concluding that a
reduction was not warranted. As the record reveals, the district court identified §
3553(a) factors weighing against a reduction and the facts relevant to those factors.
The court first discussed Suarez’s history and characteristics, specifically his
leadership role in directing codefendants in the operation of multiple stash houses
containing drugs and firearms. See 18 U.S.C. § 3553(a)(1). It then considered the
unwarranted disparity between Suarez’s and his less culpable codefendants’
sentences that a sentence reduction would create. See id. Suarez’s argument that no
such disparity can exist because he is not similarly situated to his codefendants
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misses the point -- it is the lack of similarity in their criminal conduct that warrants
a longer sentence for him. See Gall, 552 U.S. at 54-55; 18 U.S.C. § 3553(a)(6).
Nor did the district court abuse its discretion by not explicitly addressing all
of the § 3553(a) factors or public safety considerations; it was not required to do so.
Smith, 568 F.3d at 927; Eggersdorf, 126 F.3d at 1322. Like the district court in
Eggersdorf, the court here used a short order that referenced the parties’ briefs and
the § 3553(a) factors, and the record otherwise shows that the district court took
pertinent factors into account, especially since the same court that sentenced Suarez
also declined to reduce his sentence. Eggersdorf, 126 F.3d at 1320-22. In short,
Suarez has not shown that the district court applied the wrong legal standard, failed
to follow the proper procedure, or improperly considered the § 3553(a) factors. See
Jules, 595 F.3d at 1241-42; Alvarado, 808 F.3d at 496.
Finally, contrary to Suarez’s argument, there is no ambiguity, much less
grievous ambiguity, in Chapter 5, Part A of the guidelines (i.e., the sentencing table).
That the table lists only life imprisonment, rather than a range of months, for the
highest offense level does not make it ambiguous. Because the sentencing
commission’s intent regarding the table is clear, the rule of lenity is not implicated.
See Wright, 607 F.3d at 713.
AFFIRMED.
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United States v. Francisco Suarez
Combined Opinion