[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16857
September 5, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 03-00332-CR-T-23-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC BONILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 5, 2006)
Before ANDERSON, BIRCH and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
This is Isaac Bonilla’s second appearance before the Court. Based on the
Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220
(2005), we previously vacated his sentence and remanded for resentencing.
See United States v. Bonilla (“Bonilla I”), 437 F. App’x 240 (11th Cir. 2005)
(unpublished). After a resentencing hearing, at which the district court heard
argument on the 18 U.S.C. § 3553(a) factors, the district court imposed the same
sentence, which was at the lowest end of the Guidelines range Bonilla faced. In
this appeal, Bonilla again challenges his 108-month sentence for possessing with
intent to distribute five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation of 46 U.S.C. App.
§ 1903(a),(g) and 21 U.S.C. § 960(b)(1)(B)(ii), and conspiring to possess with
intent to distribute five kilograms or more of cocaine while on board a vessel
subject to the jurisdiction of the United States, in violation of 46 U.S.C. App.
§ 1903(a), (g), (j), and 21 U.S.C. § 960(b)(1)(B)(ii). On appeal, Bonilla argues
that: (1) his sentence was unreasonable, and (2) the district court’s statement of
reasons under 18 U.S.C. § 3553(c)(1) was inadequate. We affirm.
According to the presentence investigation report (“PSI”), after members of
the United States Coast Guard intercepted two go-fast vessels, the occupants of
which were seen dumping bales of suspected contraband overboard, the Coast
Guard fired warning shots and signaled for the go-fast vessels to stop. One of the
boats complied. The Coast Guard then approached the other go-fast vessel, which
had become disabled, and observed four men in the water approximately 25 yards
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from the disabled vessel. The crew members had covered themselves and the boat
in gasoline. The Coast Guard removed the four men from the water, one of whom
was Bonilla, and retrieved from the water 44 bales of cocaine weighing a total of
1100 kilograms.
Bonilla was the owner and captain of the second go-fast boat. In a post-
arrest statement, Bonilla stated that he and the crew had been fishing, but did not
have drugs on the vessel, and had jumped in the water after the Coast Guard shot at
them. Bonilla also stated that he had no knowledge concerning the other go-fast
vessel. Later, however, Bonilla agreed to the facts as outlined in the indictment
and the Notice of Filing Factual Basis for Plea, and accepted responsibility for his
involvement. He also cooperated with the government in connection with its cases
against six co-defendants.
The PSI recommended a base offense level of 38, pursuant to U.S.S.G. §
2D1.1(c)(1), which is applicable to a defendant convicted of a violation of 21
U.S.C. § 960(b)(1), based on the 1100 kilograms of cocaine the crewmen were
transporting. See United States Sentencing Commission, Guidelines Manual, §
2D1.1(c)(1) (Nov. 2003) (assigning base offense level of 38 where quantity of
cocaine is 150 kilograms or more). The PSI recommended the following
adjustments: (1) a two-level upward adjustment, pursuant to U.S.S.G. §
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2D1.1(b)(2)(B), because Bonilla was the captain of the vessel; (2) a two-level
safety-valve reduction, pursuant to U.S.S.G. § 2D1.1(b)(6); and (3) a three-level
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. With a
criminal history category I and an adjusted offense level of 35, Bonilla faced a
Guidelines range of 168 to 210 months’ imprisonment. At the initial sentencing
hearing, the government moved for a substantial-assistance departure, pursuant to
U.S.S.G. § 5K1.1, based on Bonilla’s cooperation and assistance in the
government’s prosecution of six co-defendants. After the district court granted a
four-level departure, Bonilla faced a Guidelines range of 108 to 135 months’
imprisonment, based on an adjusted offense level of 31 and a criminal history
category I.
The district court imposed concurrent 108-month terms of imprisonment,
followed by four years of supervised release. After sentencing Bonilla, in
anticipation of the Supreme Court’s decision in Blakely v. Washington, 542 U.S.
296 (2004), the district court proposed an alternate sentence, stating:
It is unlikely that I would have given a sentence exactly equal to that
of the sentencing guidelines, but . . . the closest I might have come in
light of [Bonilla’s] cooperation would have been 96, which would be
eight years in light of his cooperation and his family obligation.
So if I were sentencing him, I would have sentenced him to 96
months, subject always to the realization that since we don’t know
how we’re sentencing, neither of you perhaps is as vigorous in trying
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to influence that sentence, you’ve not made as complete a case as you
would have, had we known for sure what law would ultimately govern
Mr. Bonilla’s sentence.
In Bonilla I, we vacated and remanded Bonilla’s sentence after finding Booker
constitutional error based on the district court’s suggestion that it would have
sentenced Bonilla differently if it had not been confined to the Guidelines range.
In our remand opinion, we observed that:
the district court correctly determined the Guidelines range for
Bonilla’s conviction. We have considered Bonilla’s challenge to the
two-level enhancement for his role in the offense, and note that the
district court did not err factually by applying the enhancement based
on its conclusion that he was captain of the vessel that was
transporting the cocaine. On remand, pursuant to Booker, the district
court is required to sentence Bonilla under an advisory Guidelines
scheme, and, in so doing, must consider the Guidelines range and
“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp.
2004).” Booker, 125 S. Ct. at 757.
Bonilla I, 137 F. App’x at 242 n.1 (alteration in original).
At Bonilla’s resentencing hearing, the court reviewed with Bonilla the two
counts to which he pled guilty and stated that it would determine a sentence in
accordance with the advisory Guidelines scheme and Booker. The district court
invited “counsel for the United States and the defense to call to [its] attention any
matter under 18 U.S.C. § 3553 or otherwise that ought to be considered in arriving
at a final and reasonable sentence.” Neither side had any objections to the PSI’s
factual statements, which the district court adopted. Bonilla then restated his
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objection to the two-level enhancement for his status as the captain on the boat,
arguing that his conduct in steering and owning the vessel was not enough to
qualify him for the enhancement. He also pointed to the following factors in
support of a lower sentence: (1) he was willing to provide additional assistance to
the government, but his imprisonment at Fort Dix for two years had prevented him
from doing so, and he had no more information to offer; and (2) while in prison, he
had attempted to take advantage of classes and benefits available to him, including
English classes, but had been unable to do so due to overcrowding. The
government resubmitted its § 5K1.1 motion and requested that the court follow its
actions from the first sentencing hearing and grant a four-level departure. The
government also argued that Bonilla’s 108-month sentence was fair in light of the
significantly higher sentences his co-defendants had received. The government
urged that the sentence adequately reflected credit for Bonilla’s assistance to the
government and met the § 3553 factors, and that a lower sentence would be a
“windfall” for Bonilla.
The district court overruled Bonilla’s objection to the 2D1.1(b)(2)(B)
enhancement and granted the government’s § 5K1.1 downward departure motion,
thereby decreasing Bonilla’s offense level by four levels. The court then stated
that pursuant to the Guidelines and Booker, Bonilla would be re-sentenced at the
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bottom of the range to 108-months’ imprisonment as to both counts, to run
concurrently, followed by four years of supervised release. The court also noted:
I am satisfied that this sentence is consistent not only with the United
States Sentencing Commission’s announced policies and guidelines,
but that it accords with the array of factors specified at 18 U.S.C. §
3553 and adequately reflects the seriousness of the offense, being
neither – the sentence being neither greater nor lesser than necessary
to achieve the statutory purposes of sentencing.
This appeal followed.
Bonilla challenges the reasonableness of his sentence, arguing that: (1) the
sentence was greater than necessary to achieve the purposes of sentencing as set
forth in § 3553(a); (2) he played a limited role in the offense, as a pilot for the go-
fast vessel, and was compensated only $3,000 for his participation; and (3) he was
a first-time, non-violent offender. Bonilla also argues that his 108-month sentence
is unreasonable because the district court suggested at his initial sentencing hearing
that a 96-month sentence would have been imposed if the Guidelines had not been
in place.
Pursuant to the Supreme Court’s instructions in Booker, we review a district
court’s sentence, imposed after consulting the Guidelines and considering the
factors set forth at § 3553(a), for reasonableness. Booker, 543 U.S. at 264-65;
United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006) (“Under Booker,
we review a defendant’s ultimate sentence for reasonableness.”). Some of the
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§ 3553(a) factors include the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for adequate deterrence and
protection of the public, pertinent Sentencing Commission policy statements, and
the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).
The reasonableness review is “deferential” and focuses on whether the sentence
imposed fails to achieve the purposes of sentencing as stated in § 3553(a). United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Moreover, we recognize that
a range of reasonable sentences exists from which the district court may choose.
Id. “[T]he party who challenges the sentence bears the burden of establishing that
the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” Id.
Prior to imposing sentence, the district court heard Bonilla’s mitigating
circumstances and considered his apology. These items all concerned “the nature
and circumstances of the offense and the history and characteristics of the
defendant” within the meaning of § 3553(a)(1). In imposing sentence, the district
court expressly noted the seriousness of the offense, see § 3553(a)(2) (discussing
factors including the need for the sentence imposed “to reflect the seriousness of
the offense”). Finally, the parties’ arguments and the PSI’s calculations outlined
“the kinds of sentences available,” as discussed in § 3553(a)(3), and the
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government noted that Bonilla was receiving a much lower sentence than his co-
defendants had, see § 3553(a)(6) (enumerating need to avoid sentencing disparity).
In short, we cannot say that Bonilla’s sentence is outside the range of reasonable
sentences from which the district court could choose.1 Because the imposition of
Bonilla’s sentence reflected consideration of several of the relevant factors under §
3553(a), including the advisory Guidelines range, Bonilla’s sentence is reasonable.
We likewise are unpersuaded by Bonilla’s suggestion that the district court’s
statement of reasons for its sentence was deficient under 18 U.S.C. § 3553(c)(1).2
The question of whether a district court complied with 18 U.S.C. § 3553(c)(1) is
reviewed de novo, even if the defendant did not object below. See United States v.
Williams, 438 F.3d 1272, 1274 (11th Cir. 2006).3 Pursuant to 18 U.S.C. §
1
The fact that the district court suggested a 96-month sentence as an alternative at the first
sentencing hearing is irrelevant in assessing the reasonableness of Bonilla’s sentence because in
Bonilla I, we vacated the district court’s initial sentence and any reasoning behind that sentence and
directed the district court to resentence Bonilla.
2
Pursuant to 18 U.S.C. § 3553(c)(2), which concerns an explanation of reasons for a
departure from the Guidelines, the court is required to give “the specific reason for the imposition
of a sentence different from that described.” 18 U.S.C. § 3553(c)(2). Since Bonilla was sentenced
within his Guidelines range and 18 U.S.C. § 3553(c)(2) clearly requires an explanation of reasons
for a departure from the guidelines, § 3553(c)(2) is inapplicable to Bonilla’s case.
3
In Williams, we rejected the government’s argument that by not objecting in the district
court, a defendant abandons his claim under § 3553(c)(1) and our standard of review is for plain
error only. We cited our pre-Booker decision in United States v. Veteto, 920 F.2d 823, 826 (11th
Cir. 1991): “Congress has specifically proclaimed that a sentencing court shall state ‘the reason for
imposing a sentence [exceeding 24 months] at a particular point within the range.’ . . . When a
sentencing court fails to comply with this requirement, the sentence is imposed in violation of law
. . . .” Williams, 438 F.3d at 1274 (quoting Veteto, 920 F.2d at 826) (alterations in original)
(emphasis removed).
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3553(c)(1), a district court is required to state, in open court, the reason for its
particular sentence, and if the sentence “is of the kind, and within the range
[recommended by the Guidelines] and that range exceeds 24 months, the reason for
imposing a sentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1);
Williams, 438 F.3d at 1274. Based on our careful review of the record, with
particular attention to the sentencing transcripts and the parties’ arguments
concerning the § 3553(a) factors, we are satisfied the district court’s imposition of
sentence complied with the requirements of § 3553(c)(1).
The district court gave the parties the opportunity to make arguments on any
§ 3553(a) factors implicated in the case and heard Bonilla’s statement of remorse.
In imposing a sentence at the lowest end of the Guidelines range Bonilla faced, the
district court said:
I am satisfied that this sentence is consistent not only with the United
States Sentencing Commission’s announced policies and guidelines,
but that it accords with the array of factors specified in 18 U.S.C. §
3553 and adequately reflects the seriousness of the offense, . . . the
sentence being neither greater nor lesser than necessary to achieve the
statutory purposes of sentencing.
As we held prior to Booker, “a sentencing court should -- when stating its reasons
for imposing a particular sentence as required by § 3553(c) -- tailor its comments
to show that the sentence imposed is appropriate, given the factors to be considered
as set forth in § 3553(a).” United States v. Parrado, 911 F.2d 1567, 1572 (11th Cir.
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1990). Thus, both before and after Booker, we have disapproved the imposition of
sentences with no consideration or mention of the § 3553(a) factors. See Williams,
438 F.3d at 1274 (vacating and remanding sentence for compliance with §
3553(c)(1), based on district court’s failure to provide any reason for life sentence);
Veteto, 920 F.2d at 824, 826-27 (remanding for compliance with § 3553(c)(1)
because the trial court explained its sentence with the “truism” that the chosen
punishment “seem[ed] right”).
However, the requirement of § 3553(c)(1) “does not mean that a sentencing
court must incant the specific language used in the guidelines which applies to
each reason given, nor does it mean that a court must state that a particular factor is
not applicable in a particular case.” Parrado, 911 F.2d at 1572 (internal quotation
marks and citation omitted). Indeed, nothing in this Circuit’s precedent or Booker
requires the district court, in its explanation of sentence under § 3553(c)(1), to
articulate its consideration of each individual § 3553(a) factor, particularly where,
as here, it is obvious the court considered many of the § 3553(a) factors -- again,
these factors included the circumstances of the offense and the history and
characteristics of the defendant, § 3553(a)(1); the seriousness of the offense, see §
3553(a)(2)(A); the kinds of sentences available, § 3553(a)(3); and the need to
avoid sentencing disparity, § 3553(a)(6). See Parrado, 911 F.2d at 1573 (holding
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that district court adequately explained reasons for imposing life sentence and
concluding, based on review of the transcript of the sentencing hearing, that “what
transpired, taken together with the court’s closing remarks noted above, provides a
sufficient statement of the court’s reasons for imposing a sentence at the top end of
the range” (citing United States v. Wivell, 893 F.2d 156, 158 (8th Cir. 1990)
(record of entire sentencing hearing considered in evaluating district court’s
reasons for imposing particular sentence; reviewing court will not rely exclusively
upon court’s summary statement at close of sentencing hearing))); cf. United States
v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005) (holding, in connection with
challenge to reasonableness of sentence, that district court’s statement that it had
considered defendant’s sentencing arguments and the factors in § 3553(a) “alone is
sufficient in post-Booker sentences”).
Simply put, we can discern no error in the district court’s explanation of its
reasoning for imposing Bonilla’s low-end sentence, nor can we find anything
unreasonable in the imposition of a 108-month sentence for this drug conspiracy
involving some 1100 kilograms of cocaine.
AFFIRMED.
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