United States v. Gilberto Jordan , 432 F. App'x 950 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14423 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 30, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:10-cr-80069-WJZ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
GILBERTO JORDAN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 30, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Gilberto Jordan appeals his 120-month sentence, imposed above his
applicable guidelines range of 0 to 6 months, after pleading guilty to unlawful
procurement of citizenship in violation of 18 U.S.C. § 1425. On appeal, Jordan
argues the district court’s elevation of his sentence to the statutory maximum of
120 months was unreasonable. The district court imposed the statutory maximum
based on an upward departure under U.S.S.G. § 5K2.0(a), and stated it would have
imposed the same sentence under an upward variance. We affirm Jordan’s
sentence on the basis of an upward departure, and thus need not decide whether a
variance was appropriate.
Under U.S.S.G. § 5K2.0(a)(3), a district court may depart upward “in an
exceptional case, even though the circumstance that forms the basis for the
departure is taken into consideration in determining the guideline range, if the
court determines that such circumstance is present in the offense to a degree
substantially in excess of . . . that which ordinarily is involved in that kind of
offense.” A departure may also “be warranted in the exceptional case in which
there is present a circumstance that the Commission has not identified in the
guidelines but that nevertheless is relevant to determining the appropriate
sentence.” U.S.S.G. § 5K2.0(a)(2)(B).
2
We evaluate a district court’s upward departure from the guidelines range
using a three-step approach. United States v. Miller, 78 F.3d 507, 509-10 (11th
Cir. 1996). “First, we review de novo the decision as to whether the guidelines
adequately consider a particular factor. Second, if the factor was not adequately
considered, we examine whether consideration of this factor is consistent with the
goals of the Sentencing Guidelines. Finally, we review the departure for
reasonableness.” Id. at 510 (internal citations omitted). “When a sentencing court
departs from the Guidelines, a reviewing court determines the reasonableness of
the departure in light of the factors to be considered in imposing a sentence, as
stated in 18 U.S.C. § 3553, and the reasons the district court provided for
departing from the Guidelines.” United States v. Melvin, 187 F.3d 1316, 1322–23
(11th Cir. 1999).
The district court did not err in departing upward to the statutory
maximum.1 First, nothing in the guidelines contemplated the particular factor
relied on by the district court—concealment of Jordan’s membership in the
military and his participation in a massacre to fraudulently obtain United States
citizenship. As the district court explained, the case was “well beyond the
1
Jordan does not argue that an upward departure of any degree was impermissible, and
in fact seems to concede a 16-level upward departure would have been appropriate.
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heartland of the applicable guidelines,” because “a case with these particular facts
is virtually unprecedented.” See Melvin, 187 F.3d at 1320 (“[D]istrict courts have
an institutional advantage over appellate courts in determining whether a case is
outside the heartland, and thus their decisions are entitled to substantial
deference.”). Second, “consideration of this factor is consistent with the goals of
the Sentencing Guidelines.” Miller, 78 F.3d at 510.2 We have explained that
upward departures under § 5K2.0(a) “are allowed for acts of misconduct not
resulting in conviction, as long as those acts, whether or not relevant conduct in
the section 1B1.3 sense, relate meaningfully to the offense of conviction.” United
States v. Ellis, 419 F.3d 1189, 1193 n.4 (11th Cir. 2005) (citation and emphasis
omitted). By concealing his role in the murders, Jordan was able to fraudulently
obtain United States citizenship and a virtual safe-haven. Third, the upward
departure was reasonable. Melvin, 187 F.3d at 1322–23. The record indicates the
court properly considered the § 3553(a) factors in determining Jordan’s sentence.
The district court’s explanation was also sufficient to support the degree of the
departure, as it is difficult to imagine “any more serious basis for immigration
2
“A court should evaluate whether the departure is consistent with the goals of the
guidelines, whether as part of the determination that the Commission adequately considered a
factor, or as a second step.” Id.
4
fraud than an individual’s concealment of his prior participation in a mass murder
of innocent civilians.”
Because we conclude the district court did not err in imposing an upward
departure to the statutory maximum, we affirm Jordan's sentence.
AFFIRMED.
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