United States v. Leopoldo Caiceda Caiceda

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 16, 2007
No. 06-15821 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00129-CR-FTM-29-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEOPOLDO CAICEDA CAICEDA,

Defendant-Appellant.

________________________

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

(May 16, 2007)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:
 In December 2005, appellant and three other men were apprehended while

aboard a fishing vessel transporting more than 3,500 pounds of cocaine headed for

the United States. Appellant was the vessel’s captain. A Middle District of Florida

grand jury subsequently returned a two-count indictment against appellant and his

crew members charging them in Count One of possession with intent to distribute

five 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

21 U.S.C. § 960(b)(1)(B)(ii), and in Count Two of conspiring to possess with

intent to distribute five 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), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). Appellant pled guilty to both

counts (without a plea agreement), and on October 16, 2006, he was sentenced.

The district court determined that the Sentencing Guidelines prescribed

incarceration for a term of 168-210 months for a person, like appellant, with a

criminal history category of I, and imposed concurrent prison sentences of 190

months.

He now appeals, arguing that the district court erred (1) in imposing a

sentence considerably more severe than those of his crew members and thus

disparate, and that his sentence is unreasonable.

2
 We conduct a de novo review of the district court’s application and

interpretation of the Guidelines and review the district court’s factual findings for

clear error. United States v. Smith, No. 06-14077, slip op. 1393, 1394 (11th Cir.

March 19, 2007). We review the ultimate sentence imposed for reasonableness in

the context of the 18 U.S.C. § 3553(a) sentencing purposes. United States v.

Wilks, 464 F.3d 1240, 1245 (11th Cir.), cert. denied, 127 S.Ct. 693 (2006). The

reasonableness review is deferential, and the burden of proving that the sentence is

unreasonable in light of the record and the § 3553(a) purposes rests on the party

challenging the sentence. Id. Although a sentence within the Guidelines range

will not be considered per se reasonable, “when the district court imposes a

sentence within the advisory Guidelines range, we ordinarily will expect that

choice to be a reasonable one.” United States v. Talley, 431 F.3d 784, 787-88

(11th Cir. 2005).

The 18 U.S.C. § 3553(a) purposes 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 educational or vocational

training or medical care; (6) the kinds of sentences available; (7) the advisory

3
guidelines range; (8) the need to avoid unwanted sentencing disparities; and (9) the

need to provide restitution to victims. The district court need not discuss each

factor or state on the record that it has explicitly considered each factor. Talley,

431 F.3d at 786. An acknowledgment by the district court that it has considered

the defendant’s arguments and the § 3553(a) factors will suffice. Id.

The record reveals that the district court treated the Guidelines as advisory,

not mandatory; hence, the court adhered to the teaching of United States v. Booker,

543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005). Additionally, appellant

has not met his burden to establish that the district court imposed unreasonable

sentences. The record reflects that the court properly considered the purposes of

sentencing as reflected in 18 U.S.C. § 3553(a), and all of his arguments, including

the argument that he might not qualify for certain benefits because of his non-

citizen status.

To the extent that appellant argues that the district court failed to consider

that he was subject to an immigration detainer as a basis for a downward departure

under U.S.S.G. § 5K2.0, we lack the authority to review the district court’s

decision not to apply a downward departure because the district court recognized

its authority to depart downward. See United States v. Winingear, 422 F.3d 1241,

1245-46 (11th Cir. 2005). In sum, appellant’s sentences are due to be, and are,

4
AFFIRMED.

5