[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 28, 2009
No. 09-10429 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-10056-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 28, 2009)
Before BIRCH, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Rafael Lopez appeals from the 60-month sentence he received as a result of
pleading guilty to one count of conspiring to encourage and induce aliens to enter
the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He argues that his
sentence is unreasonable because the judge, citing Lopez’s prior conviction under
the same statute, deviated nineteen months above the applicable guideline range of
33-41 months, an increase of roughly 50% of the suggested high end guideline
sentence and almost 100% greater than the low end. Lopez claims this is
unreasonable because the guideline range already reflected that conviction,
specifically pointing to the fact that he received (1) a two-level increase in his
offense level under U.S.S.G. § 2L1.1(b)(3)(A) because he had a previous
conviction for a felony immigration and naturalization offense and (2) two criminal
history points for that conviction, which increased the length of the guidelines
range.
We review a defendant’s sentence for reasonableness. United States v.
Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005). The
party challenging the sentence “bears the burden of establishing that the sentence is
unreasonable in light of both [the] record and the factors in section 3553(a).”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). In arriving at a
reasonable sentence, the district court is required to consider the factors set out in
18 U.S.C. § 3553(a):
2
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence
imposed–(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B)
to afford adequate deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available; (4) [the sentencing guidelines
range;] (5) any pertinent policy statement [of the Sentencing
Commission;] (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to any victims
of the offense.
The district court shall then impose a sentence that is “sufficient, but not greater
than necessary,” to comply with the purposes of 18 U.S.C. § 3553(a)(2). Id.
We have recognized that “there is a range of reasonable sentences from
which the district court may choose[.]” Talley, 431 F.3d at 788. Furthermore,
“[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 omitted). 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, perhaps because the
Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or
perhaps because the case warrants a different sentence regardless.” Rita v. United
States, 551 U.S. 338, ___, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007) (citation
3
omitted). The Supreme Court has rejected “an appellate rule that requires
‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”
Gall, 552 U.S. at ___, 128 S.Ct. at 595. The Court clarified, however, that “a
major departure should be supported by a more significant justification than a
minor one.” Id. at ___, 128 S.Ct. at 597.
In this case, the district court upwardly departed from the guideline range,
giving the following justification:
One would have thought, hoped, that a period of incarceration for
smuggling activity would be sufficient to the ordinary criminal to
refrain from engaging in similar activity in the future. Obviously it
wasn’t in this case. So, I think it's appropriate to impose a sentence
above the guideline range in order to protect the public and provide
adequate deterrence, to promote respect for the law. Obviously
recidivism of similar activity does not demonstrate that type of respect
for law.
Beyond Lopez’s criminal history and the general need for more effective
deterrence, the district court considered other § 3553(a) factors in imposing the
upward variance, including the seriousness of the offense and the nature and
circumstances of the conduct.
By focusing only on Lopez’s criminal history, without providing any other
justification as to the need to deviate almost fifty percent above the high end of the
4
guideline range,1 we believe the district court abused its discretion in concluding
that this 60-month sentence was sufficient but not greater than necessary.2
REVERSED.
1
During a colloquy with the judge, Lopez’s counsel acknowledged that it was within the
court’s discretion to consider the previous conviction in deviating above the guideline range,
despite the conviction’s role in helping to dictate that range. However, the judge’s ability to do
so does not then give free rein to impose any sentence above without first adequately justifying
that decision.
2
This case is traveling with United States v. Sotolongo, 09-10427.
5