[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 25, 2008
No. 07-14851 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00345-CR-4-UWC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ARTURO ZAVALA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 25, 2008)
Before BARKETT and WILSON, Circuit Judges, and POGUE,* Judge.
PER CURIAM:
Arturo Zavala pled guilty to conspiring to distribute and to possess with the
*
Honorable Donald C. Pogue, United States Court of International Trade, sitting by
designation.
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1)
and (b)(1)(A). The government appeals Zavala’s 178-month sentence, imposed
after a remand by a panel of this Court for resentencing consistent with United
States v. Booker, 542 U.S. 220, 125 S. Ct. 738 (2005).
The government argues that Zavala’s sentence is both procedurally and
substantively unreasonable because the district court failed to properly consider the
§ 3553(a) sentencing factors, instead focusing on the perceived sentence disparity
between similarly-situated codefendants. The government also argues that Zavala
should not have received a sentence comparable to his codefendants, who received
the benefit of § 5K1.1 motions based on their substantial assistance.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005)
(citations omitted). A sentence may be procedurally unreasonable if the district
court incorrectly calculates the Guidelines range, treats the Guidelines as
mandatory, fails to properly consider the § 3553(a) sentencing factors, selects a
sentence based on clearly erroneous facts, or fails to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.
Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 597 (2007). Substantive
reasonableness requires that the totality of the circumstances be considered and
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that the statutory factors of § 3553(a) support the sentence in question. Id.
“ Reasonableness” review requires that we review the sentence under an
abuse-of-discretion standard. Id. at 594 (stating that the Supreme Court’s
“explanation of ‘reasonableness’ review in the Booker opinion made it pellucidly
clear that the familiar abuse-of-discretion standard of review now applies to
appellate review of sentencing decisions”). If the sentence is outside the
Guidelines range, we may consider the deviation “but must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id. “The fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Id.
In this case, the underlying facts of the case are not disputed. It is also
undisputed that the Guidelines range was properly calculated at the time of
Zavala’s initial sentencing, and the Guidelines were not treated as mandatory. The
real question before us is whether the § 3553(a) sentencing factors were
appropriately considered by the district court.
The factor in § 3553(a) bearing on disparities in sentencing provides: “The
court, in determining the particular sentence to be imposed, shall consider . . . the
need to avoid unwarranted sentence disparities among defendants with similar
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records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).
Additional factors in § 3553(a) include: (1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendant; (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; (4) the need to protect the public; and (5)
the Guidelines range. 18 U.S.C. § 3553(a).
In considering these factors, the court is not required to state on the record
that it has explicitly considered each of them or explain in detail which played a
particular role in sentencing. “[N]othing in Booker or elsewhere 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; United States v. McBride, 511 F.3d 1293, 1297 (11th Cir.
2007) (“[A] district court need not account for every § 3553(a) factor, nor must it
discuss each factor and the role that it played in sentencing.”). Instead, indications
in the record that the district court considered facts and circumstances falling
within § 3553(a)’s factors will suffice. See Scott, 426 F.3d at 1329-30.
Furthermore, as emphasized in Gall, the district court is best situated to
weigh factual circumstances. See Gall,128 S. Ct. at 600 (holding that a district
court did not commit reversible error simply because it “attached great weight” to
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one factor). District courts are “in a superior position to find facts and judge their
import under § 3553(a) in the individual case. The judge sees and hears the
evidence, makes credibility determinations, has full knowledge of the facts and
gains insights not conveyed by the record.” Id. at 597. Indeed, “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation and citation omitted).
Moreover, this Court has noted that it will reverse a sentence as
substantively unreasonable only when “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. Williams, 456 F.3d
1353, 1363 (11th Cir. 2006) (internal quotations omitted), abrogated on other
grounds by Kimbrough v. United States, 128 S. Ct. 558 (2007).
Under these standards, we cannot say that the sentence imposed here was
unreasonable. Zavala and his four brothers became involved in the sale of
methamphetamine. Zavala’s brother, Javier, was the head of the organization, and
pursuant to the government’s § 5K1.1 motion on his behalf, received a sentence of
188 months’ imprisonment because he was able to provide assistance to the
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government. In considering Zavala’s sentence, the district court stated its belief
that “the imposition of a greater sentence than 178, 180 months, would cause the
public to question the justice of a system that imposes a greater sentence on a
follower than a leader.”
The record here indicates that the trial judge took into account the § 3553(a)
factors and weighed them to impose the punishment required by statute: a sentence
“sufficient, but not greater than necessary” to comply with the purposes of
sentencing. 18 U.S.C. § 3553(a). The court noted that Arturo Zavala had not been
in a position to provide the government with the kind of assistance provided by
Javier and considered the nature of Arturo’s participation in the drug scheme. The
court noted that according to Javier’s plea agreement, when Arturo first became
involved in the endeavor it involved only “small and relatively unorganized [sales
of ] crystal methamphetamine.” It was only after Javier took over as leader that it
became a large and coherent organization. The court concluded that based on the
evidence, Arturo had a lesser role in the organization, whereas Javier had “brought
into the region the majority of the methamphetamine sold there, . . . and [his] role
in the organization placed him in a position to know significant details of
individuals, groups of individuals, storage location, routes, prices, and overall
distribution operations.” Yet, Javier received a sentence of only 188 months, and
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the other family members who also had 15 kilos of methamphetamine attributed to
each of them received sentences of 168 months.
It is not erroneous for the district court to have considered the “unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct” when the statute specifically mandates such
consideration. The government argues that these defendants are not because
Javier cooperated with the government and Arturo did not. Such an argument
might have some merit if both defendants had equal information to provide to the
government and one simply refused to produce it. That is not the case here as the
district court found that Arturo had no information to trade for a lesser sentence.
Moreover, this argument ignores the court’s consideration of the relative
culpability of the brothers and the role each played in the conspiracy. With
reference to the other brothers, the court also considered that both Javier and
Miguel were fugitives from justice for quite some time after the indictment was
handed down, while Arturo was not.
We are satisfied that the district court considered all of the statutory
sentencing factors as it noted:
THE COURT: Well, I’m specifically finding that this sentence, the
178- months’ sentence is sufficient, but not greater necessary to
comply with the statutory purposes of sentencing set forth in
subparagraph 2 of the section. I’ve considered the nature and
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circumstances of the crime, the history and characteristics of this
defendant; and I consider that this sentence does reflect the
seriousness of the crime, it’s right at 15 years. It promotes respect for
the law; I believe that any higher sentence would promote disrespect
for the law. I believe it provides just punishment for the offense, as
well as affording adequate deterrence to criminal conduct.
We cannot say that the district court abused its discretion in finding that 15 years
was a reasonable sentence for Arturo Zavala under the facts of this case.
AFFIRMED.
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