United States v. Ismael Pedrosa-Garcia , 312 F. App'x 223 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13825 ELEVENTH CIRCUIT
FEBRUARY 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-10003-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISMAEL PEDROSA-GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 13, 2009)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Ismael Pedrosa-Garcia (“Pedrosa-Garcia”) appeals his forty-eight month
sentence following his convictions on one count of conspiracy to commit alien
smuggling in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) (“Count One”) and one
count of failure to heave to a government law enforcement vessel in violation of 18
U.S.C. § 2237(a)(1) (“Count Two”). Pedrosa-Garcia argues that his sentence was
unreasonable because the district court impermissibly considered his pending state
manslaughter charge and imposed a sentence above his guideline range. We
conclude that the district court correctly considered Pedrosa-Garcia’s guideline
range, the requisite statutory factors, the nature and circumstances of his
convictions and his prior conviction for failure to heave to a government vessel in
fashioning the sentence imposed. Accordingly, we find that the sentence was
reasonable. AFFIRMED.
I. BACKGROUND
On 10 January 2008, the United States Coast Guard cutter Drumond
detected a go-fast boat1 operating without navigation lights, traveling southbound
from Florida towards Cuba. R2-54 at 11. The Drumond closed within 100 yards
of the vessel and commanded it to stop in both English and Spanish. The go-fast
boat ignored the command, increased speed and attempted to evade interdiction,
nearly colliding with the Drumond in the process. An hour-long pursuit ensued
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A “go-fast boat” is an exceptionally swift, high-performance vessel commonly used by
smugglers.
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after which the go-fast boat was finally apprehended. Pedrosa-Garcia admitted to
being the driver of the boat. Id. at 11-12.
Pedrosa-Garcia’s guideline range was calculated at between ten and sixteen
months, based upon a total offense level of 10 and a criminal history category of
III. R3-55 at 2. He faced a statutory imprisonment term of zero to ten years for
Count One and zero to five years for Count Two. In addition, just prior to his
sentencing for Counts One and Two, Pedrosa-Garcia had received a twenty-four
month sentence for violating his supervised release conditions in a previous
conviction for failure to heave to a government law enforcement vessel.
At Pedrosa-Garcia’s sentencing hearing, the district court considered the
advisory guideline range along with the statutory factors as set out in 18 U.S.C.
§ 3353(a). The court specifically noted the fact that Pedrosa-Garcia’s instant
offense occurred only six months into his supervised release term for a prior failure
to heave to a government law enforcement vessel. The district court commented:
Well, I remember. It was one of the few cases, it seems to me, that I
recall giving the defendant the benefit of the doubt on just a straight
failure to heave to a law enforcement vessel. And we just gave him
the time served because there was no other evidence that he was
engaged in any other kind of smuggling violation. So we kind of gave
him the benefit of the doubt, which in retrospect maybe it wasn’t such
a smart idea.
Id. at 4. After listening to his petition for leniency, the district court asked about
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the status of a pending manslaughter charge against Pedrosa-Garcia. The court
was informed that the manslaughter charge was an open case in state court. Id. at
7. The district court made no further inquiries on the subject.
The court then highlighted the fact that Pedrosa-Garcia’s “efforts to ram the
Coast Guard vessel . . . put the crew and his passenger in great danger” and
concluded as follows:
We’re here to consider the sentence to reflect the seriousness of
the offense, promote respect for the law, provide just punishment for
the offense, as well as to afford adequate deterrence. We have noted
that this is the second offense after he was given a break the first time
around. At least, I considered it to be something of a lenient sentence.
So I think it warrants a sentence above the advisory guidelines
in order to reflect the seriousness of the offense and to promote
respect for the law, provide just punishment and deterrence.
Id. at 8-9. The district court imposed a sentence of forty-eight months of
imprisonment for both Counts One and Two, to be served concurrently, but
consecutive to the twenty-four month term imposed for the prior supervised release
violation. After the announcement of the sentence, Pedrosa-Garcia objected to the
imposition of a sentence above the advisory guideline range. Id. at 10.
II. DISCUSSION
We review a sentence imposed by a district court, both as to its procedural
propriety and substantive reasonableness, under an abuse of discretion standard.
See United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we
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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. (quotation marks and citation omitted). As we have noted before, the sentencing
court need not “state on the record that it has explicitly considered each of the
§ 3553(a) factors or discuss each of the § 3553(a) factors.” United States v. Ortiz-
Delgado, 451 F.3d 752, 758 (11th Cir. 2006) (quotation marks and citation
omitted). However, when a “judge imposes a sentence outside the Guidelines, the
judge will explain why he has done so” and “ensure that the justification is
sufficiently compelling to support the degree of the variance.” United States v.
Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotation marks and citation
omitted).
After determining that the sentence imposed is procedurally sound, we then
consider whether the sentence is substantively reasonable. See Pugh, 515 F.3d at
1190. “In considering the substantive reasonableness of the sentence, we may not
apply a presumption of unreasonableness where a sentence is outside of the
Guidelines range, and we must give deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of the variance.” Livesay, 525
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F.3d at 1090 (quotation marks and citation omitted). As we have said before,
“courts of appeal must review all sentences – whether inside, just outside, or
significantly outside the Guidelines range – under a deferential abuse-of-discretion
standard.” Id. at 1090 (quotation marks and citation omitted). We are also mindful
of the fact that “a sentence can be unreasonable . . . if the district court’s selection
of the sentence was substantially affected by its consideration of impermissible
factors.” United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006),
abrogated on other grounds by United States v. Kimbrough, __ U.S. __, 128 S. Ct.
558, 574 (2007) (footnote omitted). In the end, we look to whether “[t]he
sentencing judge . . . set forth enough to satisfy [us] that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, __, 127 S. Ct.
2456, 2468 (2007).
In this case, we are convinced that the sentence imposed by the district court
was procedurally and substantively sound. The court correctly considered the
advisory guideline range along with the requisite § 3353(a) factors. It then
highlighted the fact that Pedrosa-Garcia’s instant offense occurred only six months
into his supervised release term for the same offense. The district court noted that
it had given Pedrosa-Garcia the benefit of the doubt the first time around and
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expressed its concern that Pedrosa-Garcia again was before the court convicted of
the same offense. Moreover, the district court gave ample consideration to the
nature and circumstances of the instant offense, noting that Pedrosa-Garcia’s
actions put the lives of his passenger and the crew of the Drummond in great
danger. Given the scope of our deferential standard of review and the district
court’s reasoned basis for exercising its decisionmaking authority, we conclude
that the sentence imposed by the district court was not unreasonable.
Finally, we find no merit in the contention that the district court considered
an impermissible factor in fashioning Pedrosa-Garcia’s sentence. The court merely
noted the existence of a pending manslaughter charge in Pedrosa-Garcia’s
presentence investigation report (“PSI”) and asked about the status of the case.
When informed that it was an open case in state court, the district court made no
further inquires. Nothing in the record supports the notion that the district court
impermissibly considered the manslaughter charge when crafting Pedrosa-Garcia’s
sentence.
III. CONCLUSION
Pedrosa-Garcia appeals his forty-eight month sentence following his
convictions on one count of conspiracy to commit alien smuggling and one count
of failure to heave to a government law enforcement vessel. We conclude that the
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district court correctly considered Pedrosa-Garcia’s guideline range, the requisite
statutory factors, the nature and circumstances of his convictions and his prior
conviction for failure to heave to a government vessel in fashioning the sentence
imposed. Accordingly, we find that the sentence was reasonable.
AFFIRMED.
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