United States v. Jose Contreras-Gutierrez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11176 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 13, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cr-00044-HL-CHW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

JOSE CONTRERAS-GUTIERREZ,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
________________________

(October 13, 2011)

Before HULL, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Jose Contreras-Gutierrez appeals his 100-month sentence, imposed following
his guilty plea to illegal reentry of a deported alien, in violation of 8 U.S.C. §

1326(a)(2), in connection with 8 U.S.C. § 1326(b)(2). On appeal,

Contreras-Gutierrez argues that his sentence is: (1) procedurally unreasonable

because the district court failed to provide an adequate sentencing rationale for his

above-guidelines-range sentence, and inappropriately relied on his sentence for a

previous conviction for illegal reentry of a deported alien as a baseline for his

sentence in the instant case; and (2) substantively unreasonable because the district

court failed to consider mitigating evidence, and instead focused exclusively on

Contreras-Gutierrez’s criminal history. After careful review, we affirm.

We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)).

In reviewing sentences for reasonableness, we perform two steps. Id. at 1190.

First, we “‘ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating

the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the Guidelines range.’”

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Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 “[T]he justification for

[any] variance must be sufficiently compelling to support the degree of the variance.”

United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en banc) (quotation

omitted), cert. denied, 131 S.Ct. 1813 (2011). We may not presume that a sentence

outside the guidelines is unreasonable and generally must defer to the district court’s

decision that the § 3553(a) factors justify the extent of the variance. See id. We

have held that “nothing . . . 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.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

If we conclude that the district court did not procedurally err, we must consider

the “‘substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh,

515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,”

requiring us to determine “whether the sentence imposed by the district court fails to

achieve the purposes of sentencing as stated in section 3553(a).” United States v.

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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) 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; (3) the need for the sentence imposed to afford adequate 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 Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

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Talley, 431 F.3d 784, 788 (11th Cir. 2005). A district court’s unjustified reliance on

a single factor “may be a symptom of an unreasonable sentence,” but significant

reliance on a single factor does not necessarily make the sentence unreasonable.

Pugh, 515 F.3d at 1191-92; see Gall, 552 U.S. at 56-57 (holding that a district court

did not commit reversible error because it “attached great weight” to one factor).

“[W]e will not second guess the weight (or lack thereof) that the [district court]

accorded to a given factor . . . as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented.” United States v. Snipes, 611

F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted), cert.

denied, 131 S. Ct. 2962 (2011). We will “vacate the sentence if, but only if, we are

left with the definite and firm conviction that the district court committed a clear error

of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” Irey, 612

F.3d at 1190 (quotation omitted). “The party challenging the sentence bears the

burden to show it is unreasonable in light of the record and the § 3553(a) factors.”

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied, 131 S.Ct.

674 (2010).

First, we reject Contreras-Gutierrez’s claim that his sentence was procedurally

unreasonable. As the record shows, the district court gave an adequate explanation

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when it focused on Contreras-Gutierrez’s numerous deportations and significant

criminal history, including the 63-month sentence he served for illegal re-entry of a

deported alien, as a rationale for the above-guidelines range, 100-month sentence.

The district court also gave Contreras-Gutierrez’s counsel an opportunity to present

mitigating arguments at the sentencing hearing, and contrary to Contreras-Gutierrez’s

assertion, considered counsel’s arguments, but ultimately was not persuaded:

Well, both you and your counsel argue for a reasonable sentence.
You’ve just completed the service of a 60-month sentence for the same
offense. So one would have to assume that any sentence that was
reasonable and might make an impression on you would have to be more
than 60-months, notwithstanding [counsel’s] conviction that you did not
realize that you should not be here.

The court further explained that it did not believe that a sentence within the advisory

guideline range would adequately address the goals of sentencing, but that an

above-guidelines range sentence would be an appropriate sentence, based on the §

3553(a) factors and the totality of the circumstances. Although counsel disagreed

with the court’s rationale, it was adequate, given that the court indicated that it

considered Contreras-Gutierrez’s arguments in mitigation, the advisory guideline

range, and the § 3553(a) factors in fashioning an appropriate sentence. Talley, 431

F.3d at 786 (holding that acknowledgment by the district court that it had considered

the parties’ arguments and the § 3553(a) factors is sufficient rationale).

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The district court further explained that other factors weighed more heavily in

determining Contreras-Gutierrez’s sentence, specifically referencing the fact that

Contreras-Gutierrez (1) had illegally entered the United States on at least five

separate occasions, (2) had failed to comply with administrative orders not to re-enter

without permission, (3) had committed numerous crimes resulting in five felony drug

convictions while he was in the United States illegally, and (4) had not been deterred

from illegally re-entering, even after serving a 63-month sentence for the same

offense. Because “the sentence ultimately imposed is reasonable in light of all the

circumstances presented,” Snipes, 611 F.3d at 872, the court did not unreasonably

rely on these factors in determining Contreras-Gutierrez’s sentence, see Gall, 552

U.S. at 56-57.

Moreover, the court did not abuse its discretion in determining that a sentence

greater than the 63-month sentence Contreras-Gutierrez previously served for the

same offense was required in order to address adequately the goals of sentencing

under the totality of the circumstances. The record reveals that the court did not

ignore the advisory guideline range, or “create a new ad hoc guideline range of its

own,” as counsel argues on appeal, but rather, the court determined, after considering

the § 3553(a) factors, “that a sentence within the advisory guideline range [did] not

adequately address the goals of sentencing.” Defense counsel even anticipated the

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specific factors that would concern the court, stating: “I can see where the Court is

going to have several places of concern. One concern being his prior record, another

concern being the number of deportations that [he] has.” Thus, the court did not

abuse its discretion when it determined, after considering counsel’s arguments, that

based on those particular factors, an above-guideline sentence was appropriate in this

case. As a result, the district court committed no procedural error in sentencing

Contreras-Gutierrez.

Nor was the sentence substantively unreasonable. The district court indicated

that it had considered Contreras-Gutierrez’s mitigating arguments, but as discussed

above, the court was not persuaded. The court also reasonably considered the need

for deterrence and Contreras-Gutierrez’s extensive criminal history -- including his

63-month sentence for illegal re-entry of a deported alien and the fact that he had

previously been deported 5 times -- in determining that an above-guidelines range

sentence was warranted. Thus, although the district court did not detail the precise

weight given to the various factors and evidence presented, the court did not violate

the purpose of § 3553(a) in imposing the 100-month sentence based on the totality

of the circumstances. Scott, 426 F.3d at 1329. Accordingly, we affirm.

AFFIRMED.