United States v. Sergio Calderon

Case: 16-13072 Date Filed: 01/23/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-13072
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20965-FAM-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO CALDERON,
a.k.a. Calderon,
a.k.a. Caldero,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(January 23, 2017)

Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:
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Sergio Calderon pleaded guilty to conspiracy to possess with intent to

distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846, and the

district court sentenced him to 120 months imprisonment. Calderon appeals that

sentence, contending that it is substantively unreasonable.

From April through November 2015 a confidential informant along with an

undercover agent made a total of twelve cocaine purchases from codefendant

Gomez Borges. A wiretap was then authorized and placed on Borges’ phone, and

agents recorded conversations between Borges, codefendant Jose Lopez Amado,

and Calderon concerning supplying and distributing cocaine. In late November

officers watched Borges enter an apartment and then leave carrying a suitcase.

They followed him to a truck yard, arrested him, and found that he was carrying

more than $28,000. They also arrested Amado at the truck yard and after

conducting a search found 16 kilograms of cocaine there. Calderon was then

arrested at the apartment where Borges had been after Calderon admitted to

officers that he was renting that apartment and that everything inside of it was his.

Inside of that apartment officers found two kilograms of cocaine, a money

counting machine, and over $2,000 in cash.

Calderon pleaded guilty to conspiracy to possess with intent to distribute 500

grams or more of cocaine, which carried with it a maximum sentence of 40 years

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imprisonment. The district court calculated his advisory guideline range as 51 to

63 months imprisonment based on a total offense level of 24 and a criminal history

category of I. The district court, however, imposed an upward variance and

sentenced Calderon to 120 months imprisonment. Calderon now appeals,

contending that his sentence was substantively unreasonable because (1) the

district court erroneously concluded that his criminal history category

underrepresented his criminal history and (2) the district court erroneously gave

too much weight to the fact that he had been arrested for a cocaine trafficking

offense committed after he pleaded guilty in this case but before he had been

sentenced.

II.

We review for abuse of discretion the reasonableness of a sentence. United

States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). “A district

court abuses its discretion when it (1) fails to afford consideration to relevant

factors that were due significant weight, (2) gives significant weight to an improper

or irrelevant factor, or (3) commits a clear error of judgment in considering the

proper factors.” Id. (quotation marks omitted). In other words, a sentence is

substantively unreasonable “if, but only if, we are left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the

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range of reasonable sentences dictated by the facts of the case.” Id. at 1190

(quotation marks omitted).

Calderon first contends that the district court erred in concluding that his

criminal history was “seriously underrepresented” in the guideline calculation. 1 In

arriving at that conclusion the district court noted that Calderon had received no

criminal history points for his state conviction for trafficking 69.6 pounds of

marijuana. Further, the district court noted that Calderon had “got[ten] breaks” for

his past crimes, including one that involved violent conduct, because he had only

received probation for them. The district court did not abuse its discretion in using

that underrepresentation of Calderon’s criminal history as one reason to conclude

that a variance was proper to protect the public from further crimes and to reflect

Calderon’s criminal history. See 18 U.S.C. § 3553(a). Moreover, the sentence

imposed was well below the statutory maximum of 40 years imprisonment, which

also suggests that the sentence was substantively reasonable. See United States v.

McKinley, 732 F.3d 1291, 1299 (11th Cir. 2013) (noting that the imposition of a

1
We note that the guidelines provide that an upward departure may be warranted if “the
defendant’s criminal history category substantially underrepresents the seriousness of the
defendants conduct.” U.S.S.G. § 4A1.3(a)(1). Calderon does not argue that if the nature of his
criminal history was actually underrepresented the district court could not consider that as a
factor supporting its imposition of an upward variance instead of a departure. See United States
v. Moran, 778 F.3d 942, 983–84 (11th Cir. 2015) (holding that the district court did not abuse its
discretion by imposing an upward variance “after finding that [the defendant]’s criminal history
category of I understated the seriousness of his criminal history”).
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sentence below the statutory maximum was “a further indicator that the sentence

was reasonable”).

Calderon also contends that the district court erred in imposing a variance

based on his arrest for drug trafficking which occurred between his guilty plea and

the sentence hearing. Calderon does not argue that the district court should not

have considered the arrest at all but that it gave too much weight to the arrest in

imposing the variance. That arrest was only one of several reasons the district

court provided as supporting an upward variance, and, in any event, “[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 marks omitted). As a result, the district court did not abuse

its discretion by imposing the upward variance.

AFFIRMED.