United States v. Ronictor Joseph

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 13, 2006
No. 05-17168 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-20606-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RONICTOR JOSEPH,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 13, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
Ronictor Joseph appeals his 46-month total sentence imposed after his plea

of guilty to illegally reentering the United States after deportation, in violation of 8

U.S.C. § 1326(a) and (b)(2); forgery or false use of a passport, in violation of 18

U.S.C. § 1543; and falsely claiming United States citizenship, in violation of 18

U.S.C. § 911. The sentence was composed of concurrent terms of 46 months’

imprisonment as to Counts One and Two, and 36 months’ imprisonment as to

Count Three.

Joseph was deported to Haiti based on his cocaine conviction. He was

arrested attempting to reenter the United States illegally with a fraudulent passport.

Joseph argues on appeal that his sentence is unreasonable in light of United States

v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). His argument is based largely

upon his claim that his case involved “unique circumstances” in that he attempted

to enter the United States because he was receiving threats in Haiti.1 After review,

we affirm.

Sentences imposed under an advisory Guidelines system are reviewed for

unreasonableness. Booker, 543 U.S. at 261, 125 S. Ct. at 765. Following the

1
Joseph also states briefly that removal following his sentence will cause hardship to his
wife and children because realistically they will not be able to join him in Haiti. He does not,
however, expressly challenge the requirement that he surrender for removal following his
incarceration, or cite any authority to show that this was reversible error. Accordingly, this
argument is deemed waived. See United States v. Nealy, 232 F.3d 825, 830-831
(11th Cir. 2000).

2
Booker decision, we have stated that the district court must first correctly calculate

the defendant’s Guidelines 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).2 “[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) facts or to discuss

each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th

Cir. 2005). A district court’s statement that it considered the § 3553(a) factors is

sufficient in post-Booker sentences to indicate that it considered the factors. See

id. at 1330. “Review for reasonableness is deferential.” United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).” Id.

Joseph acknowledged below that the district court properly calculated the

applicable advisory range under the Guidelines, and does not dispute the

2
The § 3553(a) factors include the available sentences, the applicable 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 of the defendant, and (4) provide the defendant with needed
correctional treatment. 18 U.S.C. § 3553(a); United States v. Winingear, 422 F.3d 1241, 1246
(11th Cir. 2005).

3
calculation on appeal. See Crawford, 407 F.3d at 1179. Joseph’s advisory

Guidelines range was 46 to 57 months’ imprisonment.

At Joseph’s sentencing hearing, which occurred after the Supreme Court’s

ruling in Booker, the district court heard mitigating factors as to his crime, criminal

and personal history, and family situation. The court stated that it reached the 46-

month total sentence after calculating the Guidelines range and applying it in an

advisory manner. It specified that it reached the sentence after considering, among

other things, the unique circumstances of the case, including the reasons Joseph

committed the crimes, his criminal history, and the nature and seriousness of the

crimes. In fact, Joseph attempted to reenter the United States illegally shortly after

deportation while still on supervised release for his prior cocaine offense.

The district court accepted as true Joseph’s representations as to his situation

in Haiti and acknowledged that “[i]t’s a difficult time in that country.” The court

also stated that it understood that he “want[ed] to be back here with [his] family

and live in some relative safety.” However, it found that Joseph had previously

committed “a serious crime,” specifically, importing cocaine, and was aware that

he was not to return to the United States. The district court found that the 16-level

increase under U.S.S.G. § 2L1.2(b)(1)(A)(i), in particular, was warranted in light

of the recent nature of Joseph’s deportation. It stated that the instant offenses were

4
“major violations of the law,” and that he could have pursued other options even

though that “might have been difficult.”

Accordingly, the district court considered the § 3553(a) factors and

conducted a proper reasonableness inquiry. See Winingear, 422 F.3d at 1246;

Booker, 125 S.Ct. at 766; 18 U.S.C. § 3553(a).

Furthermore, the total term of imprisonment imposed, 46 months, is at the

low end of the advisory Guidelines range and is far lower that the aggregate

statutory maximum sentence available to the district court. See 8 U.S.C. § 1326

(b)(2); 18 U.S.C. § 1543.3 Accordingly, we cannot say the sentence is

unreasonable. See Winingear, 422 F.3d at 1246; 18 U.S.C. § 3553(a). Thus, we

affirm Joseph’s 46-month sentence.

AFFIRMED.

3
We recognize that the statutory maximum sentence for falsely claiming United States
citizenship, in violation of 18 U.S.C. § 911, is 3 years’ imprisonment or 36 months
imprisonment. 18 U.S.C. § 911. However, the statutory maximum sentence for illegally
reentering the United States after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), is
20 years’ imprisonment, and the statutory maximum sentence for forgery or false use of a
passport, in violation of 18 U.S.C. § 1543, is 10 years’ imprisonment. 8 U.S.C. § 1326 (b)(2); 18
U.S.C. § 1543.