[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 3, 2008
No. 08-10663 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 06-00065-CR-J-DHB-JEG
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
NELSON VALDES,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 3, 2008)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Nelson Valdes appeals from the district court’s decision to impose an
upward variance and sentence him to 84 months of imprisonment for bank fraud,
in violation of 18 U.S.C. § 1344 and 2.1 On appeal, Valdes argues that this
sentence was both procedurally and substantively unreasonable.
I
Valdes argues that his sentence was procedurally unreasonable because the
district court did not calculate whether an upward departure was warranted before
it engaged in a variance analysis. Valdes additionally argues that the district court
(1) erred in considering a probation officer’s letter to the Sentencing Commission
suggesting an enhancement for repeated economic crimes; and (2) incorrectly
interpreted Valdes’s international travels as attempts to escape from prosecution.
In United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765-66, 160
L.Ed.2d 621 (2005), the Supreme Court held that sentences are to be reviewed for
“unreasonable[ness].” The Supreme Court subsequently noted that this review
requires the “deferential abuse-of-discretion standard.” Gall v. United States, 552
U.S. ___, 128 S. Ct. 586, 591 (2007). However, if a sentencing issue is raised for
the first time on appeal, we review that issue only for plain error. United States v.
1
Valdes’s original sentence of 108 months of imprisonment for this same offense was
vacated and remanded for resentencing by a prior panel of this Court. United States v. Valdes, 500
F.3d 1291 (11th Cir. 2007).
2
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).2
A sentence is procedurally unreasonable if the district court failed to
calculate or incorrectly calculated the guidelines, treated the guidelines as
mandatory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence
based on clearly erroneous facts, or failed adequately to explain the chosen
sentence. Gall, 128 S. Ct. at 597. The burden of establishing that the sentence is
unreasonable lies with the party challenging the sentence. United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005).
Valdes first argues that the district court was required pursuant to United
States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) to calculate a departure before it
engaged in its variance analysis.3 In our previous decision vacating and remanding
Valdes’s original sentence of 108 months imprisonment, we noted that it was
unclear from the record whether the district court intended to apply an upward
departure under U.S.S.G. § 4A1.3 or to rely solely upon § 3553(a) in imposing a
2
Under plain error review, there must be (1) an error, (2) that is plain, and (3) that affects
substantial rights. Id. When these three factors are met, we may then exercise our discretion and
correct the error if it seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). Review for plain error requires an
error to be clear or obvious. United States v. Straub, 508 F.3d 1003, 1008 (11th Cir. 2007).
3
Valdes did not specifically object to the district court’s failure to calculate a departure at
his resentencing, but rather made a general objection to the court’s upward variance. Thus, it is
arguable that plain error review should apply. However, we find that Valdes’s argument regarding
the court not conducting a departure analysis fails even under the more lenient abuse of discretion
review.
3
sentence well-above the Guidelines. Inasmuch as the district court meant to apply
an upward departure we noted that the court did not follow the requisite
procedures. Here, upon resentencing, the district court was clear that while it could
grant an upward departure, it chose not to, and rather decided that a variance based
upon § 3553(a) was more appropriate.
Once the district court decided not to depart upward, it was not required to
follow the procedure for such departures as they were no longer relevant. Valdes’s
reliance upon Jordi is misplaced as in that case we held that the district court erred
as a matter of law in improperly deciding that it could not grant an upward
departure, thereby improperly applying the guidelines. Id. at 1217. Here, the
district court recognized that it could grant an upward departure, but decided that a
variance would better account for Valdes’s conduct.
Valdes next argues that the district court improperly calculated his guideline
range because it considered a letter written by a probation officer to the Sentencing
Commission regarding economic crimes. We find this argument, which we review
for plain error, to be without merit as the district court did not use the letter to
calculate the guideline range, but rather referred to it when conducting its §
3553(a) variance analysis.
Finally, Valdes argues that his sentence was procedurally unreasonable
4
because the district court mischaracterized his travels out of the country as
evidence of “fugitive status.” The court did not find that Valdes’s travels were
illegal or constitutionally impermissible, but rather that Valdes had used his travels
as a means of confusion to conceal his crimes. Given the close proximity of his
travels to his arrests and convictions, this was not an unreasonable inference and
accordingly, the district court did not abuse its discretion in making this inference.
Therefore, we find that Valdes’s sentence was procedurally reasonable.
II
Valdes next argues that his sentence was substantively unreasonable because
the factors used by the district court to justify an upward variance (his criminal
history and the seriousness of the offense) already were accounted for by the
Sentencing Guidelines. He also restates his arguments concerning the court’s
consideration of the letter to the Sentencing Commission and his international
travels.
As discussed supra, the standard of review for unreasonableness is abuse of
discretion. Gall, 128 S. Ct. at 591. However, with regard to substantive
unreasonableness, the Supreme Court has found that “closer review may be in
order when the sentencing judge varies from the Guidelines based solely on the
judge's view that the Guidelines range fails properly to reflect § 3553(a)
5
considerations even in a mine-run case.” Kimbrough v. United States, __ U.S. __,
128 S. Ct. 558 (2007) (internal quotation marks omitted).
A sentence is substantively unreasonable “if it does not achieve the purposes
of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008). Section 3553(a) provides that district courts must consider, inter
alia, (1) the applicable guideline range; (2) the nature and circumstances of the
offense; (3) the history and characteristics of the defendant; (4) 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; (5) the need for adequate
deterrence to criminal conduct; (6) protection of the public from further crimes of
the defendant; and (7) the need to avoid unwarranted sentencing disparities. 18
U.S.C. § 3553(a). A district court may impose a variance if it determines that “the
case at hand falls outside the ‘heartland’ to which the Commission intends
individual Guidelines to apply,” “the Guidelines sentence . . . fails properly to
reflect § 3553(a) considerations,” or “the case warrants a different sentence
regardless.” Rita v. United States, __ U.S. __, 127 S. Ct. 2456, 2465 (2007).
When we previously reviewed the instant case, we found that “[m]any of the
bases for the district court’s sentence were already accounted for in calculating the
Guidelines range and nothing extraordinary about the circumstances of this case
6
justified [an] extreme variance [of 108-months’ imprisonment].” Valdes, 500 F.3d
at 1292 n.2. However, after we issued our opinion, the Supreme Court issued its
decision in Gall, in which it rejected “an appellate rule that requires ‘extraordinary’
circumstances to justify a sentence outside the Guidelines range.” Gall, 128 S. Ct.
at 595. The Supreme Court then clarified that “a major departure should be
supported by a more significant justification than a minor one.” Id. at 597.
Here, the district court calculated Valdes’s guideline range to be 41–51
months’ imprisonment based on his criminal history category of IV. In imposing
an upward variance to the guidelines range, the district court discussed its concern
with Valdes’s criminal history and repeated fraudulent behavior. While Valdes’s
criminal history alone would not justify an upward departure as such behavior is
accounted for through his criminal history category,4 here, we find that the district
court considered other § 3553(a) factors in imposing the upward variance. The
court noted that Valdes’s unusually high rate of recidivism, almost all of which
involves fraud, shows that his prior prison sentences have had an insufficient
impact on his behavior and the higher sentence was necessary to deter him as well
4
Valdes’s criminal history category of IV does not reflect many of his prior uncharged
offenses, which would have been accounted for by increasing his criminal history category to VI.
The guideline recommendation for a criminal history category of VI would have resulted in a
sentencing range of 57-71 months’ imprisonment, still below the 84-month sentence imposed by the
court.
7
as others from committing financial fraud. See United States v. Martin, 455 F.3d
1227, 1240 (11th Cir. 2006) (discussing the particular importance of deterrence in
the area of economic and fraud-based crimes). The court also noted Valdes’s
travels out of the country “augmented the confusion and obfuscation attendant to
his concealment of his serial frauds.” Finally, the court noted that it considered
“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 the
need for deterrence” as provided for under § 3553(a)(4).
Therefore, we find that the district court did not abuse its discretion in
determining that § 3553(a) required an upward variance to deter Valdes from
further criminal conduct.
AFFIRMED.
8