[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13015 NOVEMBER 28, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 5:10-cr-00011-HL-CWH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RIGOBERTO TORRES-MALDONADO,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 28, 2011)
Before EDMONDSON, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Rigoberto Torres-Maldonado appeals his 108-month sentence for illegally
re-entering the United States after having been deported as an aggravated felon, 8
U.S.C. § 1326(a)(2) and (b)(2). No reversible error has been shown; we affirm.
Based on his criminal record, Torres-Maldonado was assigned the
maximum criminal history category of VI,1 which -- combined with his total
offense level of 17 -- yielded an advisory guidelines range of 51 to 63 months’
imprisonment. The district court concluded, however, that this criminal history
category did not accurately reflect the seriousness of Torres-Maldonado’s criminal
history, or the likelihood that he would commit other crimes, and that an upward
departure under U.S.S.G. § 4A1.3 was warranted. In particular, the court noted
that Torres-Maldonado had illegally entered the United States at least six times --
twice after being convicted for illegal re-entry -- had repeatedly ignored
administrative orders prohibiting him from re-entering the country without
permission, and had been convicted for eight other crimes: including burglary, the
sale of cocaine, criminal trespass, criminal possession of stolen property, resisting
arrest, and attempted petty larceny. Pursuant to section 4A1.3, the sentencing
court determined that a 6-step increase in offense level was appropriate, yielding
an advisory guidelines range of 92 to 115 months’ imprisonment.2 The court then
sentenced Torres-Maldonado to 108 months’ imprisonment.
1
A defendant is assigned a criminal history category of VI when he has 13 or more
criminal history points. Torres-Maldonado had 17 criminal history points.
2
Torres-Maldonado does not challenge the upward departure itself, or the manner in
which it was calculated.
2
On appeal, Torres-Maldonado argues that his sentence procedurally is
unreasonable because the district court failed to verify that he had been afforded
an opportunity to read and to discuss his Presentence Investigation Report (“PSI”)
with his lawyer, pursuant to Fed.R.Crim.P. 32(i)(1)(A). Because Torres-
Maldonado did not object to this alleged error -- and concedes that plain error
review is appropriate -- we review this issue only for plain error. See United
States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Even if we assume that the district court plainly erred when it failed to ask
whether Torres-Maldonado had read the PSI and discussed it with his lawyer,
Torres-Maldonado did not establish that the error affected his substantial rights.
See United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005) (concluding
that, to demonstrate plain error, a defendant bears the burden to show that the error
affected his substantial rights, meaning that it affected the outcome of the
proceedings below). Torres-Maldonado argues that Rule 32 serves as an
important safeguard because, once a defendant fails to object to factual errors in
the PSI, he waives the error: those facts are deemed admitted. Of importance, he
does not contend, however, that he actually was deprived of the opportunity to
read the PSI and discuss it with his lawyer before sentencing or that the PSI
actually contained factual errors that should have been corrected. As a result, he
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failed to demonstrate that the court’s error affected the outcome of the
proceedings.
Torres-Maldonado also argues that his sentence procedurally is
unreasonable because the district court failed to consider his mitigating evidence
or to explain adequately its reasons for imposing its sentence. We review the
reasonableness of a district court’s sentence under a deferential abuse of discretion
standard of review. Gall v. United States, 128 S.Ct. 586, 591 (2007). The party
challenging the sentence bears the burden of establishing that the sentence is
unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A
sentence may be procedurally unreasonable if the district court fails to consider the
factors set forth in section 3553(a) or to explain adequately the chosen sentence.3
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). The district
court, however, is not required to discuss or state each factor explicitly. Id. at
1324.
The record shows that the district court considered Torres-Maldonado’s
mitigating evidence, including his assertions that he left his home country of
3
Briefly stated, a district court must consider the nature and circumstances of the offense,
the history and characteristics of the defendant, the need for the sentence to provide adequate
deterrence, respect for the law, and protection of the public, the defendant’s medical and
educational needs, the advisory guideline range, the Sentencing Commission’s policy statements,
and the need to avoid unwarranted sentencing disparities and provide restitution. See 18 U.S.C.
§ 3553(a)(1)-(7).
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Honduras because he feared for his life and that he suffers from posttraumatic
stress disorder, depression, and drug addiction. The court found these arguments
unpersuasive, however, in the light of Torres-Maldonado’s extensive criminal
history. After considering Torres-Maldonado’s arguments, the court expressly
stated that it considered the advisory sentencing guidelines and the other section
3553(a) factors in determining Torres-Maldonado’s sentence. This explanation
was sufficient to satisfy the court’s procedural requirements. See Talley, 431 F.3d
at 786 (explaining that acknowledgment by the district court that it had considered
the parties’ arguments and the section 3553(a) factors is sufficient rationale). In
addition, although the court was not required to discuss each of the section
3553(a) factors individually, it specifically discussed Torres-Maldonado’s
criminal history, which was relevant to his history and characteristics, and the
need to promote respect for the law, afford adequate deterrence, and protect the
public from further crimes. As a result, we conclude that Torres-Maldonado’s
sentence procedurally is reasonable.
Torres-Maldonado also argues that his sentence substantively is
unreasonable because the court failed to consider properly the section 3553(a)
factors and placed disproportionate weight on his criminal history. The weight to
be given a particular section 3553(a) factor is left to the sound discretion of the
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district court. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).
We will not reverse unless 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.” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008).
We are not convinced that the district court committed a clear error of
judgment in weighing the relevant statutory factors. Although Torres-Maldonado
presented mitigating evidence about his personal history and characteristics, it was
within the district court’s discretion to weigh this evidence against other factors,
such as his criminal history. While the district court’s explanation placed
particular stress on Torres-Maldonado’s criminal history, that history -- as
described above -- was relevant to several of the section 3553(a) factors. Thus,
the court did not “focus single-mindedly” on one section 3553(a) factor to the
detriment of the others. See United States v. Crisp, 454 F.3d 1285, 1292 (11th
Cir. 2006) (concluding that a sentence was unreasonable when the district court
“focused single-mindedly on the goal of restitution to the detriment of all of the
other sentencing factors”). Moreover, because the court imposed an upward
departure under section 4A1.3, it was required to specify its reasons for
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concluding that the criminal history category was insufficient. Thus, its focus on
Torres-Maldonado’s criminal history was not only within its discretion, but
mandatory.
AFFIRMED.
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