[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11776 FEBRUARY 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00551-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN DE DIOS MIRANDA MEDRANO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 14, 2006)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Juan de Dios Miranda Medrano appeals his 168-month sentence for
conspiracy to possess with the intent to distribute five kilograms or more of
cocaine while aboard a vessel subject to the jurisdiction of the United States and
possession with the intent to distribute five kilograms or more of cocaine while
aboard a vessel subject to the jurisdiction of the United States, in violation of 46
U.S.C. § 1903(a), (g), and (j), and 21 U.S.C. § 960(b)(1)(B)(ii). We AFFIRM.
I. BACKGROUND
Medrano, a Colombian born in 1945, was on a “go-fast” boat intercepted by
United States Coast Guard officers. During a pursuit from the officers, the crew
jettisoned 58 bales from the boat, which were later determined to contain 1,450
kilograms of cocaine. Medrano and other crew members told the officers that they
were recruited to transport the cocaine by an individual named “Pedro.”
A federal grand jury indicted Medrano for conspiracy to possess with the
intent to distribute five kilograms or more of cocaine while aboard a vessel subject
to the jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a), (g), and
(j), and 21 U.S.C. § 960(b)(1)(B)(ii) (Count 1); and possession with the intent to
distribute five kilograms or more of cocaine while aboard a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. § 1903(a) and (g), and
21 U.S.C. § 960(b)(1)(B)(ii) (Count 2). R1-8 at 1-2. The indictment alleged a total
of 1,450 kilograms of cocaine. Id. at 4. Medrano pled guilty to both counts of the
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indictment without entering into a plea agreement with the government.
The probation officer set Medrano’s base offense level at 38 pursuant to
U.S.S.G. § 2D1.1(c)(1). Medrano received a two-level enhancement under
§ 2D1.1(b)(2)(B) based on his role as the captain of the “go-fast” boat and a two-
level reduction under § 2D1.1(b)(7) because he met the safety-valve criteria found
in § 5C1.2. He also received a net three-level reduction for acceptance of
responsibility under § 3E1.1, resulting in a total offense level of 35. Medrano was
assessed no criminal history points, making his criminal history category I. His
Sentencing Guidelines range was 168 to 210 months of imprisonment. Neither
party objected to the presentence investigation report.
At sentencing, Medrano argued that he should receive a sentence of 121
months of imprisonment because that sentence would be sufficient but not greater
than necessary to comply with the requirements of 18 U.S.C.§ 3553(a) and would
account for Medrano’s age of 60, when life expectancy of a Colombian citizen is
66. R3 at 4-7. The government responded that (1) Medrano’s father, 84, exceeded
the average life expectancy, and Medrano would receive good health care and
nutrition while in prison, and (2) a sentence within the Sentencing Guidelines
range would be in parity with the sentences received by Medrano’s codefendants.
Id. at 8-11. The district judge noted parity as an important § 3553(a) factor, opined
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that Medrano was not eligible for a minor-role reduction because he was the
captain of the “go-fast” boat and stated that his status as the captain and being a
more mature individual did not justify the type of sentence or reduction Medrano
sought. Id. at 14-16. The judge stated, “There is a need to impose severe
sentences in these cases as a—to have a deterrent effect to similar criminal conduct
and to reflect the seriousness of the offense.” Id. at 16. The district judge
sentenced Medrano to 168 months of imprisonment on each count, to run
concurrently, and five years of supervised release on each count, to run
concurrently. Id.
On appeal, Medrano argues that the facts of this case, including (1) the
vessel was a small speedboat; (2) there was no evidence that the vessel or the drugs
aboard were heading to the United States; (3) Medrano only earned $11,745 for his
role, which is small in comparison to the larger drug smuggling conspiracy; (4)
Medrano had no ownership or financial interest in the drugs; (5) Medrano was
otherwise a law-abiding individual; (6) Medrano committed the crime to support
his family; and (7) Medrano was 60 years old at the time of sentencing and had a
life expectancy of 66 years, warranted a lesser sentence than the 14-year sentence
imposed. Medrano contends that, because he qualified for the “safety valve”
provision, the district judge could have imposed any sentence as low as time
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served. He notes that his 14-year sentence will not allow him to return to
Colombia and warn others of the consequences of his activity. He submits that a
121-month sentence would meet the requirements of § 3553(a). Consequently, he
concludes that his 14-year sentence was unreasonable.
The government argues that we lack jurisdiction to decide the
reasonableness of Medrano’s sentence because the factors found in 18 U.S.C.
§ 3742(a) provide the only means for appellate review of a sentence. It contends
that § 3742(a) remains intact following United States v. Booker, 543 U.S. 220, 125
S.Ct. 738 (2005). The government asserts that § 3742 is jurisdictional and cannot
be expanded by judicial action. It submits that our court in United States v.
Winingear, 422 F.3d 1241 (11th Cir. 2005) (per curiam), confirmed the continuing
viability of § 3742(a) limitations because we held that it lacked jurisdiction to
review a downward departure. The government further argues that a defendant’s
claim that his sentence was unreasonable does not mean that it was “imposed in
violation of the law” standard of § 3742(a)(1). It contends that “reasonableness”
is not new substantive law, but a standard of review to replace those excised by
Booker. The government maintains that a sentence within the Sentencing
Guidelines range should be presumptively reasonable and rebuttable only by
showing that the sentence is unreasonable when measured against the § 3553(a)
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factors. Accordingly, the government contends that Medrano’s sentence was
reasonable because it asserts that the district judge followed the directives of
§ 3553(a) in this case and found that Medrano was a more mature individual with
greater responsibilities than other participants, which warranted the sentence
imposed.
II. DISCUSSION
We review subject matter jurisdiction de novo. Winingear, 422 F.3d
at 1245. Pursuant to 18 U.S.C. § 3742(a), a defendant may appeal his sentence if
that sentence:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline
range to the extent that the sentence includes a greater fine or term of
imprisonment, probation, or supervised release than the maximum
established in the guideline range, or includes a more limiting
condition of probation or supervised release under section 3563(b)(6)
or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
18 U.S.C. § 3742(a) (emphasis added); see also Booker, 543 U.S. at ___, 125 S.Ct.
at 764-68 (excising the standards of review in 18 U.S.C. § 3742(e) and holding that
a review for reasonableness could be inferred from pre-2003 text preceding the
PROTECT Act revisions). We recently held that we have jurisdiction under 28
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U.S.C. § 3742(a)(1) to review for unreasonableness a sentence within the advisory
guideline range as a sentence imposed “in violation of law.” United States v.
Martinez, No. 05-12706, 2006 WL 39541, at *3-4 (11th Cir. Jan. 9, 2006) (per
curiam).
Sentences imposed under an advisory guidelines system are reviewed for
“unreasonableness.” Booker, 543 U.S. at ___, 125 S.Ct. at 765. Following the
Booker decision, we have stated that a district court must first correctly calculate
the defendant’s Sentencing Guidelines range, then, using the 18 U.S.C. § 3553(a)
sentencing factors, the court can impose a more severe or more lenient sentence as
long as it is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir.
2005); Winingear, 422 F.3d at 1246. The § 3553(a) factors include the available
sentences, the applicable Sentencing Guidelines range and policy statements, the
nature and circumstances of the offense, and the need for the sentence to (1) reflect
the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense, (2) afford adequate deterrence to criminal conduct, (3)
protect the public from further crimes by the defendant, and (4) provide the
defendant with needed correctional treatment. 18 U.S.C. § 3553(a); Winingear,
422 F.3d at 1246. “[N]othing 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
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to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324,
1329 (11th Cir. 2005).
“Review for reasonableness is deferential.” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005) (per curiam). “[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both th[e] record and the factors in section 3553(a).” Id. A sentence
within the advisory Sentencing Guidelines range is not per se reasonable, but is
expected to be reasonable. Id. (“[W]hen the district court imposes a sentence
within the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.”). We have held that a district court’s statement that it had
considered the § 3553(a) factors alone is sufficient in post-Booker sentences to
indicate that it considered the factors and concluded that the defendant’s sentence
was reasonable because the district court accurately calculated the Guidelines
range and the defendant’s sentence at the low end of the range reflected the court’s
consideration of his evidence in mitigation. See Scott, 426 F.3d at 1330.
Since we have held that we have jurisdiction under § 3742(a)(1) to review a
sentence within the advisory Sentencing Guidelines range for reasonableness, we
likewise reject the government’s jurisdictional argument in this case. Because the
district judge considered the § 3553(a) factors, accurately calculated the
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Sentencing Guidelines range, and sentenced Medrano at the low end of the
Guidelines range, his sentence is not unreasonable. The district judge explicitly
mentioned his consideration of the § 3553(a) factors and Medrano’s mitigating
evidence and concluded that Medrano’s maturity and greater responsibilities
warranted a more severe sentence. Further, Medrano’s sentence was at the low end
of the Guidelines range, a range that takes into account his offense conduct, his
personal characteristics and history, just punishment, and adequate deterrence.
Therefore, Medrano’s sentence was reasonable.
III. CONCLUSION
Medrano appeals his 168-month sentence for conspiracy to possess with the
intent to distribute five kilograms or more of cocaine while aboard a vessel subject
to the jurisdiction of the United States and possession with the intent to distribute
five kilograms or more of cocaine while aboard a vessel subject to the jurisdiction
of the United States, in violation of 46 U.S.C. § 1903(a), (g), and (j), and 21 U.S.C.
§ 960(b)(1)(B)(ii). Explaining that we have jurisdiction to review a sentence
within the advisory guidelines range for reasonableness, we have determined that
Medrano’s sentence is reasonable because the district court considered the
§ 3553(a) factors, accurately calculated the Sentencing Guidelines range, and
sentenced Medrano at the low end of the Sentencing Guidelines range. Therefore,
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Medrano’s reasonable sentence is AFFIRMED.
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