[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11569 Dec. 30, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-20832-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO A. RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 30, 2009)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Hugo A. Rodriguez appeals from his sentence of 78 months’ imprisonment,
imposed after he pled guilty to one count of conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 1349. He argues that: (1) the district court erred in
denying the government’s motion for a downward departure to his sentence,
pursuant to U.S.S.G. § 5K1.1, because it failed to consider the factors included in
the policy statement set forth in the guideline; and (2) his sentence is procedurally
and substantively unreasonable. After thorough review, we affirm.
We do not normally review the refusal to grant a downward departure,
including a § 5K1.1 departure, unless the district court was not aware of its
authority to depart from the guideline range. United States v. Castellanos, 904
F.2d 1490, 1497 (11th Cir. 1990); 18 U.S.C. § 3742(a). However, if a defendant
challenges the ruling on a § 5K1.1 motion on the ground that the court misapplied
the guideline, we review the ruling de novo. United States v. Luiz, 102 F.3d 466,
468 (11th Cir. 1996). We “shall give due regard to the opportunity of the district
court to judge the credibility of the witnesses, and shall accept the findings of fact
of the district court unless they are clearly erroneous.” 18 U.S.C. § 3742(e). We
review the ultimate 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)).
First, we reject Rodriguez’s argument that the district court misapplied
U.S.S.G. § 5K1.1. Section 5K1.1 of the Sentencing Guidelines provides:
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Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution
of another person who has committed an offense, the court may
depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for
reasons stated that may include, but are not limited to,
consideration of the following:
(1) the court’s evaluation of the significance and usefulness of
the defendant’s assistance, taking into consideration the
government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the
defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
U.S.S.G. § 5K1.1. The commentary to this guideline notes that “[s]ubstantial
weight should be given to the government’s evaluation of the extent of the
defendant’s assistance, particularly where the extent and value of the assistance are
difficult to ascertain.” U.S.S.G. § 5K1.1, comment. (n.3). We have interpreted
this provision so that it “does not nullify the discretion expressly given to the
district court by the text of the guideline itself[.]” Castellanos, 904 F.2d at 1497.
Here, the record indicates that the district court considered the motion and
chose not to depart based upon its evaluation of Rodriguez’s assistance; thus, it
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was aware of its authority to depart. Id. at 1498. Nevertheless, Rodriguez may
appeal on the basis that the court misapplied the § 5K1.1 guideline by failing to
consider the factors in § 5K1.1. See Luiz, 102 F.3d at 468. The court noted that it
generally defers to the attorneys’ evaluations of a defendant’s assistance, but after
hearing Rodriguez testify in both trials, found that his testimony was untruthful, so
he was not entitled to the § 5K1.1 reduction. Thus, the court properly considered
the guideline.
Our holding in Castellanos forecloses Rodriguez’s argument that the
commentary to the guideline required the district court to give substantial weight to
the government’s position and subsequently grant the motion. In Castellanos, we
held that a district court must give substantial weight to the government’s position
“where the extent and value of the assistance are difficult to ascertain.” 904 F.2d at
1498 (quotation omitted). However, the extent and value of the assistance is not
difficult to determine where, as here, the district court presided over the trial of the
codefendants against whom a defendant testifies and can “judge for itself the extent
and value of his assistance.” Id. Thus, because the district court presided over the
trials of Rodriguez’s codefendants and witnessed Rodriguez’s testimony, it was
able to determine that his assistance did not warrant a § 5K1.1 sentence reduction.
See id. Furthermore, we award “due regard” to the district court’s credibility
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determinations and accept its factual findings unless they are clearly erroneous.
See 18 U.S.C. § 3742(e). The record does not reveal that the district court clearly
erred in its findings and, accordingly, we affirm the denial of the § 5K1.1 motion.
We also are unpersuaded by Rodriguez’s claim that his sentence is
unreasonable. In reviewing sentences for reasonableness, we perform two steps.
Pugh, 515 F.3d at 1190. First, we must “‘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.’” Id. (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)).1 The district court need not state on the
record that it explicitly considered each factor and need not discuss each factor.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Rather, “an
acknowledgment by the district court that it has considered the defendant’s
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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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arguments and the factors in section 3553(a) is sufficient” under United States v.
Booker, 543 U.S. 220 (2005). Id. When the district court imposes a within-
guidelines sentence, it need only “set forth enough to satisfy the appellate court
that [it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita, 551 U.S. at 356.
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). A sentence may be
substantively unreasonable if it does not achieve the purposes of sentencing stated
in 18 U.S.C. § 3553(a). Id. at 1191. However, the district court has discretion to
determine the weight that should be given to each factor. United States v. Clay,
483 F.3d 739, 743 (11th Cir. 2007). And although a sentence within the advisory
guideline range is not per se reasonable, it is ordinarily expected to be reasonable.
Talley, 431 F.3d at 788. The burden of establishing that the sentence is
unreasonable in light of the record and the § 3553(a) factors lies with the party
challenging the sentence. Id.
Rodriguez has failed to establish that his sentence was procedurally
unreasonable. As the record shows, the district court found that Rodriguez’s
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within-guidelines sentence was appropriate for Rodriguez based upon the §
3553(a) factors and his testimony at his codefendants’ trials. In addition, it did not
blindly presume that a within-guidelines sentence was per se reasonable, contrary
to Rodriguez’s assertion, but instead, noted that the guidelines were advisory. The
court also considered the impact that Rodriguez’s actions had on the victims and
his family, and the government’s difficulty in discerning the truth from the
statements Rodriguez provided as part of his assistance. The court noted that it had
never denied a § 5K1.1 reduction before, thereby indicating that its sentence was
based on the individual facts of Rodriguez’s case. And because the court was not
required to discuss each of the § 3553(a) factors, Talley, 431 F.3d at 786, its
explicit statement that it had considered the § 3553(a) factors when sentencing
Rodriguez was sufficient. Further, Rodriguez fails to mention the “clearly
erroneous facts” upon which the district court relied, and therefore does not satisfy
his burden of showing that the district court abused its discretion when sentencing
him. See id.
Rodriguez also has failed to establish that his sentence is substantively
unreasonable. The district court considered the § 3553(a) factors, and sentenced
Rodriguez at the low end of his guideline range, which suggests a sentence that is
expected to be reasonable. Id. at 788. The court, moreover, properly considered
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the government’s § 5K1.1 motion and its supporting arguments and reasonably
found that Rodriguez’s offense warranted a sentence at the low end of the
Guidelines. Although Rodriguez presents several factors that he contends would
support a § 5K1.1 reduction, like the 18 months of debriefings with the
government, and mentions § 3553(a) factors in his favor, like his 20-year military
career, he has not provided any compelling argument that the court abused its
discretion when weighing the sentencing factors in his case. See Clay, 483 F.3d at
743 (district court has discretion to determine weight given to each factor).
AFFIRMED.
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