United States v. Gustavo Venta , 362 F. App'x 941 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12892 ELEVENTH CIRCUIT
JANUARY 20, 2010
Non-Argument Calendar
JOHN LEY
________________________
ACTING CLERK
D. C. Docket No. 96-00075-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO VENTA,
a.k.a. Chino,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 20, 2010)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Gustavo Venta appeals his the 21-months’ prison sentence the district court
imposed for Venta’s violation of the terms of his supervised release. Venta had
been placed on supervised release following the completion of the prison sentence
he received in 1997, following his conviction for conspiracy to distribute cocaine.
The district court imposed the 21-months’ term consecutively to a 188-months’
prison sentence Venta had received in a separate case, for possession of a firearm
by a convicted felon, the offense that gave rise to the supervised release violation.
In his brief on appeal, Venta argues that his 21-months’ prison sentence was
unreasonable because the district court, although acknowledging that the
Sentencing Guidelines are advisory, effectively treated the appropriateness of
U.S.S.G. § 7B1.3(f), which advises that sentences for supervised release violations
generally should run consecutively to unexpired sentences, as a presumption which
he had to overcome. Additionally, the court treated § 7B1.3(f) as a “super-factor.”
Venta also argues that in light of his age and the 188-months’ sentence he was
already serving, his good behavior during the three and a half years on supervised
release prior to his arrest, and the circumstances of his underlying offense, the
sentence was greater than necessary to comply with the sentencing factors
prescribed by 18 U.S.C. § 3553(a).
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
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2006) (citing United States v. Booker, 543 U.S. 220, 258-62, 125 S.Ct. 738, 764-
66, 160 L.Ed.2d 621 (2005)). We examine a defendant’s sentence for both
procedural and substantive reasonableness under an abuse of discretion standard.
United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008). The standard
is deferential, taking into account the totality of the circumstances. Gall v. United
States, 552 U.S. 38, 41, 51, 128 S.Ct. 586, 591, 597, 169 L.Ed.2d 445 (2007). The
party challenging the sentence carries the burden of establishing unreasonableness.
United States v. Flores, 572 F.3d 1254, 1270 (11th Cir.), cert. denied, (U.S. 09-
6912) (Nov. 9, 2009).
A sentence is procedurally unreasonable if the district court fails to calculate
or improperly calculates the Sentencing Guidelines sentence range, treats the
Guidelines as mandatory, fails to consider the 18 U.S.C. § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails to explain adequately the chosen
sentence, including an explanation for any deviation from the Guidelines sentence
range. United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008). It is
reversible error for the district court, as opposed to the court of appeals, to presume
that a sentence within the Guidelines sentence range is reasonable. Nelson v.
United States, 129 S.Ct. 890, 891-92, 172 L.Ed.2d 719 (2009) (reversing a district
court’s express presumption that a guideline sentence was reasonable).
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A sentence is substantively unreasonable “if it does not achieve the purposes
of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008) (quotation omitted). Pursuant to § 3553(a), the district court shall
impose a sentence “sufficient, but not greater than necessary,” to comply with the
purposes of sentencing listed in § 3553(a)(2), namely reflecting the seriousness of
the offense, promoting respect for the law, providing just punishment for the
offense, deterring criminal conduct, protecting the public from future criminal
conduct by the defendant, and providing the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a)(2). The court must
also consider the following factors in determining a particular sentence: the nature
and circumstances of the offense and the history and characteristics of the
defendant, the kinds of sentences available, the applicable guidelines range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwanted sentencing disparities, and the need to provide restitution to victims. See
18 U.S.C. § 3553(a)(1), (3)-(7). We defer to the district court’s judgment
regarding the weight given to each § 3553(a) factor, unless the district court has
made “a clear error of judgment” under the facts of a particular case. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
A district court may exercise its discretion to revoke a defendant’s term of
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supervised release and impose a prison sentence if, after considering the § 3553(a)
factors, it finds by a preponderance of the evidence that the defendant violated a
condition of his supervised release. 18 U.S.C. § 3583(e)(3); Sweeting, 437 F.3d at
1107. Although the recommended ranges of imprisonment set forth in Chapter 7
of the Guidelines are merely advisory, when calculating a term of imprisonment
upon revocation, a district court must consider them. United States v. Brown, 224
F.3d 1237, 1242 (11th Cir. 2000); See also,U.S.S.G. § 7B1.4(a). The Guidelines
advise that a sentence resulting from a supervised release violation “shall be
ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving, whether or not the sentence of imprisonment being served
resulted from the conduct that is the basis of the revocation of probation or
supervised release.” U.S.S.G. § 7B1.3(f). However, whether a term of
imprisonment imposed for a violation of supervised release is to be served
concurrently or consecutively is a question that 18 U.S.C. § 3584(a) entrusts to the
district court’s discretion. United States v. Quinones, 136 F.3d 1293, 1295 (11th
Cir. 1998).
Here, the district court correctly considered the Guidelines in deciding to run
Venta’s 21-months’ sentence consecutively to his 188-months’ sentence, and did
not presume the Guidelines to be reasonable or otherwise abuse its discretion in
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finding that a consecutive sentence would be appropriate. Accordingly, the 21-
months’ sentence is procedurally reasonable. Moreover, the district court gave
measured consideration to Venta’s arguments against running the 21-months’
sentence consecutively, but determined that they were outweighed by other
relevant circumstances in his case.
AFFIRMED.
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