United States v. Ulises Prieto

Case: 12-12924 Date Filed: 04/22/2013 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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Nos. 12-12924; 12-12929
Non-Argument Calendar
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D.C. Docket Nos. 1:00-cr-00524-JAL-3,

1:00-cr-00875-JAL-3

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ULISES PRIETO,

Defendant - Appellant.

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Appeals from the United States District Court
for the Southern District of Florida
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(April 22, 2013)
Case: 12-12924 Date Filed: 04/22/2013 Page: 2 of 6

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

In his consolidated appeal, Ulises Prieto argues that his sentence of 30-

months imprisonment for violating the terms of his supervised release, to be served

consecutive to his already imposed sentence of 262-months imprisonment, is

procedurally and substantively unreasonable. Prieto contends that his sentence is

procedurally unreasonable because the sentencing judge failed to calculate his

guideline range. He argues that the sentencing judge was substantively

unreasonable in imposing a consecutive, rather than concurrent, thirty-month term.

The government responds that the sentencing judge was aware of the guidelines,

and was not unreasonable in imposing a consecutive term of imprisonment. After

careful consideration, we affirm Prieto’s sentence.

We review sentences imposed upon revocation of supervised release for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.

2006). When reviewing the reasonableness of a sentence on appeal, we follow a

two-step process. First, we determine whether the sentence is procedurally

reasonable, then we decide whether it is substantively appropriate. United States v.

Chavez, 584 F.3d 1354, 1364 (11th Cir. 2009). “The reasonableness of a final

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sentence is reviewed only for an abuse of discretion.” United States v. Williams,

526 F.3d 1312, 1321 (11th Cir. 2008). 1

II.

Procedurally, a district court may revoke a term of supervised release and

impose a term of imprisonment after considering the factors outlined in 18 U.S.C.

§ 3553(a). United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007).

“One of the factors a court must consider in sentencing following revocation is ‘the

kinds of sentence and the sentencing range established for—in the case of a

violation of probation or supervised release, the applicable guidelines or policy

statements issued by the Sentencing Commission . . . .’” United States v. White,

416 F.3d 1313, 1318 (11th Cir. 2005) (quoting 18 U.S.C. § 3553(a)(4)(B)).

Here, the sentencing judge did not explicitly say that she considered the

§ 3553(a) factors. When a district court does not specifically mention the

§ 3553(a) factors, we may look to the record to see whether the district court did,

in fact, consider the factors. See United States v. Dorman, 488 F.3d 936, 944 (11th

Cir. 2007). This sentencing judge, who was familiar with Prieto from having

previously sentenced him, described his criminal history and the serious nature of

1
The government argues that Prieto’s objection to the procedural reasonableness of the
sentencing at the revocation hearing was insufficiently specific to preserve the issue for appeal.
Accordingly, the government asks that we review Prieto’s procedural reasonableness claim for
plain error. See United States v. Maurice, 69 F.3d 1553, 1557–58 (11th Cir. 1995). Because we
conclude that the district court was not procedurally unreasonable under the more stringent
abuse-of-discretion standard, we need not consider this issue.
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his offenses. “The Court [also] considered the statements of the parties and the

information contained in the violation report.” The sentencing judge explained she

“[found] that a sentence within the guideline range is appropriate.” The sentencing

judge further explained that she was imposing a consecutive, rather than

concurrent, term of imprisonment because Prieto’s previous incarceration “seemed

to have no impact on him as far as continuing committing very serious criminal

conduct in, it seems, both a wholesale and retail end of the cocaine business.”

From this, we conclude that the district court sufficiently considered the § 3553(a)

factors, see id., and explained its reason for imposing the sentence, see Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007) (“The sentencing

judge should set forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”).

As for Prieto’s argument that the district court did not calculate the guideline

range, the district court’s consideration of the appropriateness of the guideline

range was brief, but legally sufficient. “[F]or sentences imposed upon revocation

of supervised release,” we have held “it is sufficient that there be some indication

that the district court was aware of and considered the Guidelines, which requires

the court to consider the sentencing range established under the Guidelines.”

Campbell, 473 F.3d at 1349 (quotation marks, emphasis, and citations omitted).

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Here, the record shows that the sentencing court was aware of and considered the

guidelines. The sentencing judge said that she found a sentence within the

guideline range to be appropriate, and imposed a sentence within that guideline

range. See United States Sentencing Guidelines § 7B1.4 (Nov. 2012). Thus, we

cannot say that Prieto’s sentence was procedurally unreasonable.

III.

“[I]f a sentence is procedurally reasonable and is within the applicable

Guidelines sentencing range, we review substantive reasonableness of the sentence

by applying a deferential abuse of discretion standard of review.” Chavez, 584

F.3d at 1365. Prieto argues that the sentencing judge was substantively

unreasonable in imposing a consecutive, rather than concurrent, sentence because

as a 50-year old man, this is tantamount to a sentence of life imprisonment.

Whether a term of imprisonment following revocation of supervised release

is to be served consecutively or concurrently is a question entrusted to the

discretion of the sentencing judge. United States v. Quinones, 136 F.3d 1293,

1295 (11th Cir. 1998). This sentencing judge was well within her discretion to

impose a consecutive sentence after considering Prieto’s history of recidivism and

the serious nature of his crimes. We note the policy statement of the Sentencing

Commission, which says “[a]ny term of imprisonment imposed upon the

revocation of probation or supervised release shall be ordered to be served

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consecutively to any sentence of imprisonment that the defendant is serving . . . .”

U.S.S.G. § 7B1.3(f). For these reasons, we conclude that the sentence is not

substantively unreasonable.

AFFIRMED.