United States v. Pablo Domingo , 559 F. App'x 896 ( 2014 )

Case: 13-14768 Date Filed: 03/19/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14768
Non-Argument Calendar
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D.C. Docket No. 9:13-cr-80024-RSR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO DOMINGO,
a.k.a. Eduardo Mendoza,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 19, 2014)
Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Pablo Domingo was convicted of illegal reentry after conviction for a non-
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(1), and the District
Court sentenced him to prison for 60 months. He appeals his sentence, arguing
that it is greater than necessary and substantively unreasonable because the District
Court focused excessively on his criminal history and failed to give due
consideration to relevant sentencing factors included within those set out in 18
U.S.C. § 3553(a), that is, his motivation for returning to the United States, his
severe addiction to alcohol, and his impending deportation upon completion of his
prison sentence.1 Domingo also argues that a sentence within the Guidelines
1
Section 3553(a) of Title 18 of the United States Code, Imposition of Sentence, states:
(a) Factors to be considered in imposing a sentence.--The court shall impose a
sentence sufficient, but not greater than necessary, to comply with the purposes set forth
in paragraph (2) of this subsection. The court, in determining the particular sentence to be
imposed, shall consider--
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a). The factors Domingo lists relate to the sentencing purposes listed in
subparts (C) and (D) above.
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range, 21 to 27 months confinement, would have been sufficient to provide just
punishment, protect the public, and deter him from further criminal activity. See
18 U.S.C. § 3553(a)(2)(A),(B) and (C).
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,
169 L. Ed. 2d 445 (2007). We may “set aside a sentence only if we determine, after
giving a full measure of deference to the sentencing judge, that the sentence
imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th
Cir. 2010) (en banc).
The District Court was required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” listed in 18 U.S.C. §
3553(a)(2). See note 1, supra. In imposing a particular sentence, the court had to
consider as well the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
When a sentencing court determines that a sentence outside the applicable
Guidelines range is appropriate, it must consider the extent of the deviation and
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provide sufficient justification for the degree of the variance. United States v.
Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). We “must give due deference to
the district court's decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169
L. Ed. 2d 445 (2007). The reasonableness of a sentence may also be indicated when
the sentence imposed is well below the statutory maximum sentence. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Domingo does not demonstrate that his sentence was substantively
unreasonable in light of the record and the § 3553(a) factors. The District Court
explained why a variance from the Guidelines range was necessary to meet the
goals encompassed within 18 U.S.C. § 3553(a). The court expressed its concern
that the Guidelines range did not adequately reflect Domingo’s particular
circumstances, including that, since his reentry, Domingo had 11 convictions,
including three DUIs and a hit and run. The court indicated that an upward
variance was necessary to promote specific deterrence, to protect the public from
Domingo’s criminal conduct, and to reflect the seriousness of the offense in this
case, which included putting the public at risk from Domingo’s sometimes-violent
criminal activity.
Although the court placed specific emphasis on Domingo’s criminal history,
the record indicates that it did not do so “single-mindedly” to the detriment of all
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of the other § 3553(a) factors. See United States v. Crisp, 454 F.3d 1285, 1292
(11th Cir. 2006). The court acknowledged Domingo’s alcoholism and indicated it
would not punish him for it. However, the court indicated that the problem with
Domingo’s alcoholism is that he “engages in conduct that is harmful and could be
not only dangerous but fatal to other people while he’s under the influence.” The
court also acknowledged Domingo’s argument that his motivation for reentering
the United States was to earn money to send back to his family in Guatemala.
However, the court found that Domingo’s economic motivation to enter the United
States would remain unchanged after time served for the instant offense, and his
subsequent deportation, and that deterrence called for a longer, rather than a
shorter, prison term. The weight to be given any particular sentencing factor is left
to the sound discretion of the court, absent a clear error of judgment. United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008); Williams, 526 F.3d at 1322.
Moreover, while Domingo’s month sentence is significantly higher than the
Guidelines range of 21 to 27 months, the sentence is well below the 10-year
statutory maximum penalty. See Gonzalez, 550 F.3d at 1324.
Because Domingo’s sentence is supported by the § 3553(a) factors, and the
court adequately explained its reasons for issuing an upward variance, it did not
commit a clear error of judgment.
AFFIRMED.
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