United States v. Victor Polanco-Cabrera

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 6, 2008
No. 07-12032 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-20329-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR POLANCO-CABRERA,
a.k.a. Perfecto Marrero,

Defendant-Appellant.

________________________

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

(February 6, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

Victor Polanco-Cabrera appeals his sentence of 210 months of imprisonment
for conspiring to possess with intent to distribute heroin, in violation of 21 U.S.C.

§§ 841, 846. He argues that his sentence was greater than necessary to achieve the

purposes set forth in 18 U.S.C. § 3553(a) and was, therefore, unreasonable. We

AFFIRM his sentence.

I. BACKGROUND

Polanco-Cabrera was indicted for conspiring to possess with intent to

distribute 100 grams or more of a mixture or substance containing a detectable

amount of heroin, in violation of 21 U.S.C. §§ 841, 846 (Count One), and for

possessing with intent to distribute 100 grams or more of a mixture or substance

containing a detectable amount of heroin, in violation of 21 U.S.C. § 841 (Count

Two). Polanco-Cabrera initially pled not guilty on both counts, but shortly before

trial, he entered a guilty plea as to Count One.

The facts of the case were as follows: a Drug Enforcement Administration

(“DEA”) confidential source (“CS”) called Polanco-Cabrera to negotiate a

purchase of heroine. The CS met with Polanco-Cabrera at a Taco Bell restaurant,

and, although no transaction took place at that point, the two discussed a deal

involving one kilogram of heroin. Soon thereafter, Polanco-Cabrera called the CS

and told him that he could arrange for the sale of one kilogram of heroin that day,

and they scheduled a meeting at a Burger King restaurant. Polanco-Cabrera

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arrived at the restaurant and, when Polanco-Cabrera presented a package to the CS,

DEA agents arrested him. The DEA’s laboratory analysis showed that the package

seized at the Burger King contained a mixture of morphine, heroin, and codeine

and weighed 496.3 grams. Additionally, the DEA found .17 grams of cocaine on

Polanco-Cabrera’s person.

Polanco-Cabrera had previous criminal convictions for the following

offenses: (1) grand larceny; (2) conspiracy to traffic cocaine; (3) trafficking in

cocaine; (4) aggravated assault with a deadly weapon; (5) two counts of battery;

(6) aggravated battery; (7) improper exhibition of a dangerous weapon; (8)

burglary with assault or battery therein while armed; (9) trespassing; and (10)

driving with a suspended license. This gave him 12 criminal history points.

Additionally, as the probation officer determined, it qualified Polanco-Cabrera as a

career offender pursuant to U.S.S.G. § 4B1.1(a) (2006). This resulted in a criminal

history category of VI. U.S.S.G. § 4B1.1(b). For his offense, the statutory

minimum was 5 years in prison, and the maximum was 40 years. 21 U.S.C.

§ 841(b)(1)(B)(i). Accordingly, Polanco-Cabrera’s base offense level was 34.

U.S.S.G. § 4B1.1(b)(B). The probation officer recommended that Polanco-Cabrera

receive a three-level reduction, pursuant to U.S.S.G. § 3E1.1(a) and (b), for

acceptance of responsibility. An adjusted offense level of 31 and a criminal history

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category of VI resulted in an advisory Guidelines range of 188 to 235 months.

At sentencing, Polanco-Cabrera conceded that he qualified as a career

offender pursuant to § 4B1.1. Polanco-Cabrera also conceded that, as a career

offender, he could not qualify for a minor-role reduction. Because Polanco-

Cabrera’s guilty plea had come only after significant preparation for trial had

already been made, the government refused to recommend the additional one-level

reduction pursuant to § 3E1.1(b). Accordingly, the court found that, under the

Guidelines, Polanco-Cabrera had a total offense level of 32, a criminal history

category of VI, and, thus, a range of 210 to 262 months.

The government then argued for a sentence within the Guidelines range,

asserting that such a sentence was appropriate because: (1) Polanco-Cabrera had a

very long and serious criminal history, including violent felonies; (2) he would

have had a criminal history category of V even without the career offender

enhancement; (3) he had continued to commit crimes even as he had gotten older;

(4) a sentence within the Guidelines range was necessary to reflect the seriousness

of his offense because it had involved a significant amount of heroin; and (5) there

was no “special condition that [w]ould place [Polanco-Cabrera] outside the general

range of individuals who committed this crime as career offenders.” R3 at 8. The

government argued that a sentence of 210 months – at the low-end of the range –

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would be appropriate in light of the fact that Polanco-Cabrera had pled guilty.

Polanco-Cabrera’s attorney argued that a sentence below the Guidelines

range would be more appropriate in light of the factors set forth in 18 U.S.C.

§ 3553(a). Specifically, he argued that he was nothing more than a middleman and

was used by those who imported or distributed the drugs. He pointed out that the

prior convictions supporting the increase pursuant to § 4B1.1 had come from as

long ago as 1989, 1992, and 1993, and that his convictions in 1992, 1993, and

1997 had been domestic abuse cases involving his former spouse. Polanco-

Cabrera also explained that he was addicted to cocaine and to Percoset and had

significant medical problems, including diabetes, internal bleeding, and a skin

condition. He also observed that, because he was 53 years old, a sentence of 210

months would mean that he would not be released from prison until he was over 70

years old. He argued that a sentence of 210 months was more than necessary, and

suggested that he should not be sentenced to more than 10 years.

The government responded that, even if Polanco-Cabrera could receive a

minor-role reduction, which he could not because of his classification as a career

offender, such a reduction would not be appropriate because of his relevant

conduct. Because he had brought the heroin to the location where the transaction

was to take place, he could not be said to have played a minor role in the

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conspiracy. Further, he had a violent criminal history. Additionally, the

government pointed out that any health problems Polanco-Cabrera might have

could be handled in a penal setting. Polanco-Cabrerra declined the court’s

invitation to make a personal statement.

The court stated that it had considered the parties’ statements, the

presentence investigation report, the advisory Guidelines, and the relevant statutory

factors. On the basis of this review, the court found that Polanco-Cabrera’s role in

the offense had been “significant” because he was the facilitator who coordinated

the drug transaction, which involved 496 grams of heroin. R3 at 16. The court

stated that it had calculated Polanco-Cabrera’s criminal history independent of

§ 4B1.1 and that, even without the career offender enhancement, he would still

have a category V criminal history. Thus, the court reasoned, the career offender

classification did not overstate Polanco-Cabrera’s criminal history. The court also

noted that some of Polanco-Cabrera’s offenses were recent. The court found that a

sentence within the career offender advisory Guidelines range was “appropriate

given all of the circumstances, the seriousness of this offense and the need to have

deterrence here from criminal conduct and future crimes,” and sentenced Polanco-

Cabrera to 210 months.1 R3 at 17. Polanco-Cabrera objected to the sentence on

1
At the government’s request, the court dismissed Count Two.

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the basis of the objections he had already stated.

On appeal, Polanco-Cabrera argues that his sentence is unreasonable in light

of the factors set forth in 18 U.S.C. § 3553(a). He argues that the district court

placed undue weight on the applicable Guidelines range and gave more weight

than was warranted to his criminal history. He emphasizes that his prior crimes of

violence arose from a domestic relationship that ended in 1997, that his only

conviction since then, in 1999, was for a driving violation, that his prior drug

offense involving 5 kilograms of cocaine was in 1989, and that his violent crimes

were 12 and 13 years prior to the instant offense. Polanco-Cabrera also argues that

the district court should have accorded more weight to mitigating factors such as

his remorse, his minor role in the offense, his age, and his deteriorating medical

condition. He argues that, for these reasons, his sentence was unreasonable in that

it was greater than necessary to achieve the purposes set forth in § 3553(a).

II. DISCUSSION

In United States v. Booker, the Supreme Court held that sentences are to be

reviewed for “unresonable[ness].” United States v. Booker, 543 U.S. 220, 261, 125

S. Ct. 738, 765 (2005) (alteration in original). “[A] sentence may be reviewed for

procedural or substantive unreasonableness.” United States v. Hunt, 459 F.3d

1180, 1182 n.3 (11th Cir. 2006). “[I]n reviewing the ultimate sentence imposed by

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the district court for reasonableness, we consider the final sentence, in its entirety,

in light of the § 3553(a) factors.” United States v. Martin, 455 F.3d 1227, 1237

(11th Cir. 2006) (quotations and citation omitted). Finally, “[r]eview for

reasonableness is deferential.” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005) (per curiam).

Section 3553(a) provides that district courts must consider, inter alia, (1) the

applicable Guidelines range, 18 U.S.C. § 3553(a)(4); (2) “the nature and

circumstances of the offense” and “the history and characteristics of the

defendant,” § 3553(a)(1); (3) “the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense,” § 3553(a)(2)(A); (4) the need for adequate deterrence,

and protection of the public, § 3553(a)(2)(B), (C); and (5) “the need to avoid

unwarranted sentence disparities,” § 3553(a)(6). “We do not in this circuit

presume reasonable a sentence within the properly calculated Guidelines range.”

United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007). We have

recognized, however, that the Supreme Court recently “upheld other circuits’

decisions affording such a presumption, noting that a sentence, independently

calculated by the district court in accordance with Booker, that falls within the

properly calculated Guidelines range ‘significantly increases the likelihood that the

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sentence is a reasonable one.’” Id. (quoting Rita v. United States, 551 U.S. __, __,

127 S. Ct. 2456, 2463 (2007)). Accordingly, although a sentence within the

Guidelines range is not per se reasonable, we would ordinarily expect such a

sentence to be reasonable. Talley, 431 F.3d at 788.

“[A] district court may determine, on a case-by-case basis, the weight to give

the Guidelines, so long as that determination is made with reference to the

remaining section 3553(a) factors that the court must also consider in calculating

the defendant’s sentence.” Hunt, 459 F.3d at 1185. “[A]n acknowledgment by the

district court that it has considered the defendant’s arguments and the factors in

section 3553(a) is sufficient under Booker.” Talley, 431 F.3d at 786. Finally, “the

burden of establishing that the sentence is unreasonable in light of” the record and

the § 3553(a) factors lies with the party challenging the sentence. Id. at 788.

Polanco-Cabrera does not dispute that the applicable Guidelines range in this

case, 210 to 262 months, was correctly calculated by the district court. Further,

the record reflects that the district court adequately considered the § 3553(a)

factors when it sentenced Polanco-Cabrera. First, the district court stated that it

had considered Palanco-Cabrera’s arguments, the presentence investigation report,

the Guidelines, and the factors set forth in § 3553(a). R3 at 16; see Talley, 431

F.3d at 786. Second, the district court also specifically addressed certain of the

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§ 3553(a) factors. It considered “the nature and circumstances of the offense”

when it stated that Polanco-Cabrera’s role in the offense was “significant” in that

he was the facilitator who coordinated the drug transaction, which involved 496

grams of heroin. R3 at 16; 18 U.S.C. § 3553(a)(1). It assessed “the history and

characteristics of the defendant,” as well as the need “to protect the public from

further crimes of the defendant,” when it noted that even without the career

offender enhancement Polanco-Cabrera would have a criminal history category of

V. R3 at 16-17; 18 U.S.C. § 3553(a)(1), (a)(2)(C). Finally, the district court stated

that a sentence within the career offender advisory Guidelines range was

appropriate in light of the circumstances, the seriousness of the offense, and the

need to deter criminal conduct. R3 at 17; § 3553(a)(1), (a)(2)(A) and (B). Because

the district court properly considered the § 3553(a) factors, the weight accorded the

Guidelines is entirely within the court’s discretion. See Hunt, 459 F.3d at 1185.

Accordingly, Polanco-Cabrera’s argument that the district court gave undue weight

to the Guidelines is unavailing.

Additionally, the sentence imposed in this case, 210 months, was at the

low-end of the Guidelines range, and we have stated that we would ordinarily

expect a sentence within the applicable Guidelines range to be reasonable. Talley,

431 F.3d at 788. Further, the sentence here imposed was less than half the

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statutory maximum of 40 years in prison, thereby providing another indicator that

it was within the range of reasonable sentences. See United States v. Thomas, 446

F.3d 1348, 1357-58 (11th Cir. 2006) (affirming 121-month sentence as reasonable

because, inter alia, that low-end Guidelines sentence was just over one-half of the

20-year statutory-maximum). For all of these reasons, we conclude that Polanco-

Cabrera has failed to show that his sentence of 210 months in prison was

unreasonable.

III. CONCLUSION

Polanco-Cabrera appeals his 210-month sentence for conspiring to possess

with intent to distribute heroin. Because the district court sentenced Polanco-

Cabrera at the low-end of the Guidelines range after considering the § 3553(a)

factors, and the record demonstrates adequate reasons for the sentence, we

conclude that the sentence was not unreasonable. Accordingly, we AFFIRM.

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