[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2007
No. 06-14030 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-10006-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELOY RIVERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2007)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Eloy Rivero pleaded guilty to one count of assaulting, resisting and
impeding a Coast Guard officer, in violation of 18 U.S.C. § 111, and one count of
encouraging aliens to illegally enter the United States, in violation of 8 U.S.C. §
1324. The pre-sentence investigation report calculated his advisory guidelines
sentence range at 33 to 41 months of prison time. The district court, after
considering the 18 U.S.C. § 3553(a) factors, sentenced Rivero to 60 months
imprisonment on each of the two counts he pleaded guilty to, with the sentences to
run consecutively.
Rivero appeals his 120-month sentence on four grounds. He contends that:
(1) he was entitled to notice that the district court intended to sentence him above
the guidelines range; (2) the court improperly used in sentencing him information
that he proffered to the government about other smuggling attempts; (3) the court
double-counted some of his criminal conduct in sentencing him above the
guidelines range; and (4) his sentence is unreasonable under the section 3553(a)
factors.
Rivero’s first contention that Federal Rule of Criminal Procedure 32(h)
entitled him to notice of the district court’s intention to sentence him above the
guidelines range is foreclosed by our decision in United States v. Irizarry, 458 F.3d
1208 (11th Cir. 2006) (per curiam). In that case, we held “that the district court
was not required to give Defendant advance notice before imposing a sentence
above the advisory guidelines range based on the court’s determination that
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sentences within the advisory guidelines range did not adequately address the
section 3553(a) sentencing factors.” Id. at 1212. Here, as in Irizarry, the court
varied Rivero’s sentence above the guidelines range based on its consideration of
the section 3553(a) factors and did not rely on the guidelines departure provisions.
“After Booker, parties are inherently on notice that the sentencing guidelines range
is advisory and that the district court must consider the factors expressly set out in
section 3553(a) when selecting a reasonable sentence between the statutory
minimum and maximum.” Id.
Rivero also contends that the court improperly considered information he
proffered to the government about two instances where he smuggled aliens into the
country (in addition to the two smuggling instances he admitted to as part of his
plea). He claims that the information was protected under U.S.S.G. § 1B1.8(a),
which provides:
Where a defendant agrees to cooperate with the government by
providing information concerning unlawful activities of others, and as
part of that cooperation agreement the government agrees that
self-incriminating information provided pursuant to the agreement
will not be used against the defendant, then such information shall not
be used in determining the applicable guideline range . . . .
U.S.S.G. § 1B1.8(a).
There are two problems with Rivero’s argument. First, the PSR expressly
stated, “While paragraphs 20 and 21 support the defendant’s pattern of criminal
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behavior and past involvement in alien smuggling ventures, his prior trips in April
2005 and September 2005 were in now [sic] way used in calculating his total
offense level or guideline computations.” Thus, Rivero’s self-incriminating
information regarding his two prior smuggling trips “was not used in determining
the applicable guideline range.”
Second, we have held that a court may use section 1B1.8(a) information to
sentence the defendant without running afoul of the guidelines prohibition, “so
long as the information is obtained from independent sources” other than the
government. United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006) (per
curiam). Here, the independent source of the information was Rivero himself. As
part of his presentation to the district court, Rivero’s counsel told the court that the
two additional smuggling incidents were attempts to bring members of his family
still in Cuba to the United States. The court considered this information at
Rivero’s request; he should not be heard now to assert that it was error for the
court to consider information he highlighted to it.
Rivero next contends that the court impermissibly double-counted conduct
that was already part of the guidelines calculation in deciding to sentence him
above the advisory range. Rivero argues that U.S.S.G. § 5K2.0(a) authorizes the
court to upwardly depart from the guidelines range only where there are
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aggravating circumstances “of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines.”
Rivero did not make a double-counting objection before the district court;
we therefore review the contention only for plain error. United States v. Naves,
252 F.3d 1166, 1168 (11th Cir. 2001). We conclude that there was no error at all.
Section 5K2.0 applies only to upward departures based on the guidelines, which is
not what the court did here. Instead, the court used its post-Booker authority to
vary from the guidelines sentence based on its consideration of the section 3553(a)
factors. Section 3553(a) requires the court to consider Rivero and his criminal
conduct as it relates to the nature and circumstances of his offense, the seriousness
of it, his criminal history, and the need to punish him, protect the public, and deter
others. 18 U.S.C. § 3553(a). Double-counting, other than that which is necessarily
a component of section 3553(a), did not occur.
Rivero’s final contention is that his sentence is unreasonable because the
court: (1) substituted its own opinion of the seriousness of his crime for the
Sentencing Commission’s opinion as reflected in the guidelines; (2) did not give
the guidelines range due consideration as 3553(a) requires; (3) did not consider
mitigating evidence of his characteristics and criminal history; and (4) imposed a
sentence that was too harsh for the crime. We disagree.
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In United States v. Hunt, 459 F.3d 1180 (11th Cir. 2006), we said that
assessing the relative weight to give the guidelines range as opposed to any of the
other section 3553(a) factors was necessarily a case-by-case determination. Id. at
1184. “In some cases it may be appropriate to defer to the Guidelines; in others,
not. So long as the district court considers the Guidelines, we do not believe it is
appropriate to dictate a ‘strength’ of consideration applicable in every case.” Id. at
1184–85.
Here, the district court clearly stated that it considered the guidelines but that
other section 3553(a) factors, including the seriousness of Rivero’s crime, dictated
an upward variance from the advisory range to reach an adequate sentence. As we
held in Hunt, such weighing of the section 3553(a) factors is appropriate, and
indeed required, in the post-Booker sentencing regime.
As to consideration of the character and criminal history mitigating
evidence, the court explicitly stated that it “considered . . . the history and
characteristics of the defendant” and “considered the statements of all parties,”
including Rivero. However, the court explained that the other section 3553(a)
factors, especially the seriousness of the offense, warranted a sentence above the
guidelines range.
We cannot say that the 120-month sentence is unreasonable in light of the
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section 3553(a) factors. As part of his plea agreement, Rivero admitted that he
twice attempted to smuggle aliens into the country. The first time, the United
States Coast Guard tried to pull his boat over but Rivero would not stop. Instead
he rammed the Coast Guard’s boat. When the Coast Guard officers were finally
able to board Rivero’s boat, he jumped overboard. After he was finally
apprehended, Rivero told the ten aliens he was trying to smuggle into the country,
“Sorry, guys, next time.”
The next time was only two months later. Rivero was caught again by the
Coast Guard, this time trying to smuggle twenty-two aliens into the United States.
We agree with the district court that Rivero’s crime was serious. He did not
have adequate safety provisions for the passengers aboard his boat, including
children, and he needlessly endangered the Coast Guard officers who were trying
to apprehend him by ramming their boat and then jumping overboard. Rivero
showed no respect for the law. When he was caught the first time, he clearly
indicated that there would be a “next time.” Not deterred by the first arrest, he was
caught again only two months later committing exactly the same crime, except this
time he was attempting to smuggle more than twice as many aliens into the
country. For these reasons, we do not find the sentence to be unreasonable.
AFFIRMED.
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