[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 20, 2006
No. 05-13660 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00297-CR-T-23TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR ENRIQUE VIRULA ARREDONDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 20, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Oscar Enrique Virula Arredondo appeals his 121-month sentence
after he pled guilty to one count of conspiracy to possess with intent to distribute 5
kilograms or more of cocaine while on board a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. App.§ 1903(a), (g), and (j), and 21
U.S.C. § 960(b)(1)(B)(ii) (“count one”), and one count of possession with intent to
distribute 5 kilograms or more of cocaine while on board a vessel subject to the
jurisdiction of the United States, in violation of 46 U.S.C. App. § 1903(a) and (j),
and 21 U.S.C. § 960(b)(1)(B)(ii) (“count two”). On appeal, Arredondo argues the
court’s low-end Guideline sentence was unreasonable because (1) he did not have a
financial interest in the drugs; (2) he was not an organizer; (3) he was not the
captain of the vessel; (4) he had no knowledge about the criminal organization; and
(5) he is a family man with no criminal history who was not likely to be a
recidivist. He asserts that the district court should have given more weight to his
humble acceptance of responsibility and the fact that he committed the offense, not
out of greed, but rather out of necessity in order to support his family. The
government responds that this Court lacks jurisdiction under 18 U.S.C. § 3742(a)
to address Arredondo’s § 3553(a) argument because the district court’s alleged
failure to consider the statutory factors did not result in a sentence imposed in
violation of law.
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A. Jurisdiction
As an initial matter, contrary to the government’s position, we have
jurisdiction under 18 U.S.C. § 3742(a) to entertain Arredondo’s argument that the
district court’s low-end Guideline sentence was unreasonable. United States v.
Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006) (concluding “that a post-Booker
appeal based on the ‘unreasonableness’ of a sentence, whether within or outside
the advisory guidelines range, is an appeal asserting that the sentence was imposed
in violation of law pursuant to § 3742(a)(1).”).
B. Reasonableness
We review sentences imposed under the post-Booker advisory Guideline
scheme for reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th
Cir. 2005); United States v. Booker, 543 U.S. 220, 260-63, 125 S. Ct. 738, 765-66
(2005) (holding that appellate court review sentences for unreasonableness in light
of the § 3553(a) factors). Following the Booker decision, we have held that the
district court must first correctly calculate the defendant’s advisory Guideline
range, and 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).
Moreover, our review for reasonableness is deferential. United States v.
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Talley, 431 F.3d 784, 788 (11th Cir. 2005). We have stated that we “must evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a),” and that in evaluating a sentence for
reasonableness, “we recognize that there is a range of reasonable sentences from
which the district court may choose . . . .” Id. The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. at 786; see also 18 U.S.C. § 3553(a). We also have noted that “when the
district court imposes a sentence within the advisory Guideline range, we
ordinarily will expect that choice to be a reasonable one.” Id. at 788.
In United States v. Scott, we 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. 426 F.3d 1324, 1329-30 (11th Cir. 2005).
We held “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.” Id. at 1329. We concluded that the
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defendant’s sentence was reasonable because the district court accurately
calculated the Guideline range and the defendant’s sentence at the low end of the
range reflected the court’s consideration of his evidence in mitigation. Id. at 1330.
In the present case, we conclude from the record that Arredondo’s sentence
was reasonable. First, the district court correctly calculated Arredondo’s Guideline
range. See Crawford, 407 F.3d at 1178. Second, the court, in sentencing
Arredondo to a low-end Guideline sentence took into consideration the 18 U.S.C. §
3553(a) factors. In listening to Arredondo’s argument in favor of mitigation based
on his role in the offense and on the circumstances surrounding his loss of
employment and his need to support his daughters, the district court did take into
account Arredondo’s personal history and characteristics. See 18 U.S.C.
§ 3553(a)(1). However, the court also took into consideration the seriousness of
the offense and the need to protect the public when it responded to Arredondo’s
plea for mitigation by noting that Congress has deemed cocaine smuggling to be a
very serious offense given its immense societal costs. See 18 U.S.C. § 3553(a)(2),
(4). Although the court did not explicitly discuss each and every one of the
§ 3553(a) factors, it was not required to do so. See Scott, 426 F.3d at 1329-30.
Finally, the court, recognizing its discretion under Booker to impose a non-
Guideline sentence, applied the Guidelines in an advisory fashion.
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Conclusion
Based on our review of the record and the parties’ briefs, we discern no
reversible error. Accordingly, we affirm Arredondo’s sentence.
AFFIRMED.
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